[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



                   THE NASA ADMINISTRATOR'S SPEECH TO
                 OFFICE OF INSPECTOR GENERAL STAFF, THE
                SUBSEQUENT DESTRUCTION OF VIDEO RECORDS,
                         AND ASSOCIATED MATTERS

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON INVESTIGATIONS AND
                               OVERSIGHT

                  COMMITTEE ON SCIENCE AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 24, 2007

                               __________

                           Serial No. 110-33

                               __________

     Printed for the use of the Committee on Science and Technology


     Available via the World Wide Web: http://www.house.gov/science

                                 ______



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                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                 HON. BART GORDON, Tennessee, Chairman
JERRY F. COSTELLO, Illinois          RALPH M. HALL, Texas
EDDIE BERNICE JOHNSON, Texas         F. JAMES SENSENBRENNER JR., 
LYNN C. WOOLSEY, California              Wisconsin
MARK UDALL, Colorado                 LAMAR S. SMITH, Texas
DAVID WU, Oregon                     DANA ROHRABACHER, California
BRIAN BAIRD, Washington              KEN CALVERT, California
BRAD MILLER, North Carolina          ROSCOE G. BARTLETT, Maryland
DANIEL LIPINSKI, Illinois            VERNON J. EHLERS, Michigan
NICK LAMPSON, Texas                  FRANK D. LUCAS, Oklahoma
GABRIELLE GIFFORDS, Arizona          JUDY BIGGERT, Illinois
JERRY MCNERNEY, California           W. TODD AKIN, Missouri
PAUL KANJORSKI, Pennsylvania         JO BONNER, Alabama
DARLENE HOOLEY, Oregon               TOM FEENEY, Florida
STEVEN R. ROTHMAN, New Jersey        RANDY NEUGEBAUER, Texas
MICHAEL M. HONDA, California         BOB INGLIS, South Carolina
JIM MATHESON, Utah                   DAVID G. REICHERT, Washington
MIKE ROSS, Arkansas                  MICHAEL T. MCCAUL, Texas
BEN CHANDLER, Kentucky               MARIO DIAZ-BALART, Florida
RUSS CARNAHAN, Missouri              PHIL GINGREY, Georgia
CHARLIE MELANCON, Louisiana          BRIAN P. BILBRAY, California
BARON P. HILL, Indiana               ADRIAN SMITH, Nebraska
HARRY E. MITCHELL, Arizona           VACANCY
CHARLES A. WILSON, Ohio
                                 ------                                

              Subcommittee on Investigations and Oversight

               HON. BRAD MILLER, North Carolina, Chairman
JERRY F. COSTELLO, Illinois          F. JAMES SENSENBRENNER JR., 
EDDIE BERNICE JOHNSON, Texas             Wisconsin
DARLENE HOOLEY, Oregon               DANA ROHRABACHER, California
STEVEN R. ROTHMAN, New Jersey        TOM FEENEY, Florida
BRIAN BAIRD, Washington              MICHAEL T. MCCAUL, Texas
BART GORDON, Tennessee               RALPH M. HALL, Texas
                DAN PEARSON Subcommittee Staff Director
                  EDITH HOLLEMAN Subcommittee Counsel
            JAMES PAUL Democratic Professional Staff Member
          DOUG PASTERNAK Democratic Professional Staff Member
           KEN JACOBSON Democratic Professional Staff Member
            TOM HAMMOND Republican Professional Staff Member
                    STACEY STEEP Research Assistant


























                            C O N T E N T S

                              May 24, 2007

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Brad Miller, Chairman, Subcommittee 
  on Investigations and Oversight, Committee on Science and 
  Technology, U.S. House of Representatives......................     6
    Written Statement............................................     7

Statement by Representative F. James Sensenbrenner, Jr., Ranking 
  Minority Member, Subcommittee on Investigations and Oversight, 
  Committee on Science and Technology, U.S. House of 
  Representatives................................................     8
    Written Statement............................................     9

                                Panel 1:

Ms. Evelyn Klemstine, Assistant Inspector General for Audits, 
  NASA Office of Inspector General and Mr. Kevin Winters, 
  Assistant Inspector General for Investigations, NASA Office of 
  Inspector General
    Joint Oral Statement.........................................    10

Discussion
  April 10, 2007 Meeting.........................................    12
  Destruction of Documents.......................................    18

                                Panel 2:

Mr. Michael C. Wholley, General Counsel, National Aeronautics and 
  Space Administration (NASA)
    Oral Statement...............................................    21
    Written Statement............................................    25

Mr. Paul Morrell, Chief of Staff, National Aeronautics and Space 
  Administration (NASA)
    Oral Statement...............................................    27
    Written Statement............................................    30

Discussion
  More on the Destruction of Documents...........................    33
  More on the April 10th Meeting.................................    36
  More on the Destruction of Documents...........................    39
  Mr. Wholley's Relationship With Mr. Cobb.......................    45

              Appendix: Additional Material for the Record

[#1], E-mail: Evelyn Klemstine to Thomas Howard, cc to Dahnelle 
  Payson re Areas of concern expressed by the staff related to 
  VITS, 4/23/2007................................................    48

[#2], E-mail: Catherine Schneiter to Evelyn Klemstine re RE: Tape 
  recalled, 4/11/2007............................................    51

[#3], E-mail: Evelyn Klemstine to Jacqueline White re RE: ViTS 
  Tape, 4/19/2007................................................    53

[#4], E-mail: Catherine Schneiter to Daniel Birnbaum re RE: 
  Congressional request, 4/20/2007...............................    54

[#5], E-mail: David Gandrud to Catherine Schneiter re RE: Records 
  Request, 4/19/2007.............................................    56

[#6], Notes from Karen VanSant regarding Videotape, 4/10/2007....    58

[#7], E-mail: Kevin Winters to Thomas Howard re VTS Tape, 4/18/
  2007...........................................................    59

[#8], E-mail: Thomas Howard to Rhodesia Wyatt re RE: VTS, 4/17/
  2007...........................................................    60

[#9], Memorandum for the record: Keith T. Sefton's dialogue with 
  Mr. Fred Berger, NASA ViTS coordinator concerning ViTS held on 
  4.10.2007; 5/07/2007...........................................    63

[#10], E-mail: Michael Wholley to Paul Morrell re Decision, 3/14/
  2007...........................................................    66

[#11], E-mail: Catherine Donovan to Michael Wholley, cc: Keith 
  Thomas Sefton, re My thoughts on IC letter, 3/22/2007..........    67

[#12], E-mail: Catherine Donovan to Michael Wholley re RE: Edits, 
  3/23/2007......................................................    69

[#13], E-mail: Michael Wholley to Catherine Donovan re Revision, 
  3/26/2007......................................................    70

[#14], E-mail: Michael Wholley to Michael Griffin, Paul Morrell, 
  Shana Dale re Round ``whatever,'' 3/29/2007....................    75

[#15], E-mail: Michael Griffin to Michael Wholley, Paul Morrell, 
  Shana Dale re RE: Round ``whatever,'' 3/29/2007................    78

[#16], E-mail: Michael Wholley to Jeff Rosen re Letter, 3/29/2007    80

[#17], E-mail: Michael Griffin to Paul Morrell re RE:, 4/02/2007.    83

[#18], E-mail: Michael Wholley to Michael Griffin, Shana Dale, 
  cc: Paul Morrell re Bullet Points, 4/03/2007...................    85

[#18B], E-mail: Michael Wholley to Jeff Rosen re Hearings??, 4/
  04/2007........................................................    89

[#19], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc: 
  Richard Sherman re letter to Griffin, 4/19/2007................    90

[#20], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc: 
  Richard Sherman re FW: letter to Griffin, 4/19/2007............    93

[#21], E-mail: Andrew Falcon to Paul Morrell, Michael Wholley, 
  Keith Sefton, Richard Sherman re Response to Congressman 
  Miller, 4/19/2007..............................................    95

[#22], E-mail: Shari Feinberg to Michael Wholley, cc: Keith 
  Sefton, Andrew Falcon re Records memo, 4/23/2007...............    96

[#23], E-mail: Feinberg Shari to Michael Wholley, cc: Keith 
  Sefton, Andrew Falcon re Revised Records Memo for your review!, 
  4/25/2007......................................................   103

[#24], E-mail: Paul Morrell to Andrew Falcon re no subject, 4/27/
  2007...........................................................   110

[#25], E-mail: Sheva Morre to Keith Sefton re NASA TV/Video, 4/
  27/2007........................................................   113

[#26], E-mail: Keith Sefton to David Mould, cc: Paul Morrell, 
  Michael Wholley, Jason Sharp re RE: FOLLOWUP, 4/27/2007........   115

[#27], E-mail: Andrew Falcon to Paul Morrell, Keith Sefton re 
  Draft letter, 4/27/2007........................................   117

[#28], E-mail: Thomas Howard to Michael Wholley, Keith Sefton re 
  RE: Copy of IG meeting, 4/28/2007..............................   120

[#29], E-mail: Fred Berger to Keith Sefton, cc: Harold Stewart, 
  Keith Sefton, Len Japngie, Les Newell re RE: April 10th 
  Recordings, 4/30/2007..........................................   121

[#30], E-mail: Keith Sefton to Catherine Donovan re FW: April 
  10th Recordings, 5/07/2007.....................................   123

[#31], Letters...................................................   125























 
 THE NASA ADMINISTRATOR'S SPEECH TO OFFICE OF INSPECTOR GENERAL STAFF, 
  THE SUBSEQUENT DESTRUCTION OF VIDEO RECORDS, AND ASSOCIATED MATTERS

                              ----------                              


                         THURSDAY, MAY 24, 2007

                  House of Representatives,
      Subcommittee on Investigations and Oversight,
                       Committee on Science and Technology,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2318 of the Rayburn House Office Building, Hon. Brad 
Miller [Chairman of the Subcommittee] presiding.



                            hearing charter

              SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                     U.S. HOUSE OF REPRESENTATIVES

                   The NASA Administrator's Speech to

                 Office of Inspector General Staff, the

                Subsequent Destruction of Video Records,

                         and Associated Matters

                         thursday, may 24, 2007
                          10:00 a.m.-1:30 p.m.
                   2318 rayburn house office building

Background

    Since early 2006, Robert Cobb, the Inspector General of the 
National Aeronautics and Space Administration (NASA), has been under 
investigation for allegations of misconduct. After a review of 79 
allegations, in early 2007, the Integrity Committee of the President's 
Council on Integrity and Efficiency (PCIE), an organization of agency 
inspectors general, issued a report finding that Mr. Cobb had abused 
his authority and demonstrated the appearance of a lack of independence 
from the agency's top officials, particularly Sean O'Keefe, NASA's 
former administrator. Most of the allegations came from current and 
former employees of NASA's Office of Inspector General (OIG).
    The Committee has been tracking this investigation since 2006 and 
made repeated requests for the final report and its supporting 
documentation over a several-month period until it was released to the 
Committee in late March of 2007. On April 2, 2007, Chairmen Miller and 
Gordon called for the removal of Mr. Cobb. Since that time, the 
Committee, along with the Senate Subcommittee on Space, Aeronautics, 
and related Sciences has been conducting interviews in preparation for 
hearings on the Cobb investigation.
    The criteria used by the PCIE are set forth in Executive Order 
12993, which includes an ``abuse of authority'' as one of the 
allegations that must be investigated. The PCIE also has developed the 
``Quality Standards for Federal Offices of Inspector General,'' which 
all IGs are required to meet. They include integrity, objectivity, 
independence, professional judgment and confidentiality. Independence 
is defined as a ``critical element of objectivity. Without 
independence, both in fact and in appearance, objectivity is 
impaired.''
    The PCIE's Integrity Committee, which conducted the investigation, 
recommended action be taken against Mr. Cobb up to and including 
dismissal. That recommendation was sent to Clay Johnson III, the head 
of PCIE and deputy director for management of the Office of Management 
and Budget for further action. Mr. Johnson sent the report on to 
Michael Griffin, NASA's Administrator, and asked him to propose a 
corrective action plan for Mr. Cobb.
    Griffin turned the task of studying the hundreds of pages of 
material and crafting a set of potential actions over to his General 
Counsel, Michael Wholley. Mr. Wholley independently decided to apply 
his own standards to the work of the HUD Inspector General and re-judge 
the case based on that report. This was completely outside the scope of 
the assignment to Mr. Griffin contemplated in the Executive Order. Mr. 
Wholley, asking what laws had been violated, determined that the 
Integrity Committee got it all wrong when they declared Mr. Cobb to 
have abused the authority of his office. In fact, Mr. Wholley seemed 
hard pressed to find that Mr. Cobb had done anything wrong at all. 
Notably, Mr. Wholley has developed a mentor-protege relationship with 
Cobb and so his actions bear out the finding of the Integrity Committee 
that at least the appearance of a lack of independence exists. Mr. 
Wholley was blind to that situation as he went about his self-defined 
task.
    Upon the suggestion of Mr. Johnson, the plan for dealing with Mr. 
Cobb included a meeting between Mr. Griffin and the staff of the Office 
of Inspector General (OIG) to inform them that Mr. Griffin had reviewed 
the Integrity Committee's Record of Investigation and taken ``the 
actions that I believe are necessary to address the ROI's findings.'' 
In a letter to Mr. Johnson, Mr. Griffin also said that he would 
``listen to any concerns that may exist among the staff and. . .express 
my support for a strong and effective Office of Inspector General.''
    In early April, Mr. Griffin made public statements questioning the 
conclusions of the PCIE report. He claimed to have reviewed the report 
himself--although there is no evidence of that--and found no evidence 
of an ``abuse of office'' ``lack of integrity'' or ``actual conflict of 
interest'' or ``improprieties.'' He expressed his support for Mr. Cobb, 
said he would not recommend his removal, and that Mr. Cobb's 
``impartiality'' was not in question. Mr. Griffin said there were 
examples of ``overly harsh treatment of subordinates; verbal 
treatment'' by Mr. Cobb, and that he would recommend that Mr. Cobb take 
management courses at the Federal Executive Institute every year, have 
a management coach, and report on his progress to NASA's Deputy 
Administrator.
    The ``all-hands'' mandatory meeting was scheduled for April 10 at 
2:30 p.m. Before the meeting, several persons expressed concern about 
the NASA Administrator's prior supportive statements concerning Mr. 
Cobb and questioned whether holding such a meeting with the OIG staff 
gave the appearance that the Administrator was asserting control over 
the independent Inspector General's office.
    Because OIG employees are located at headquarters and several NASA 
centers, the meeting was videoconferenced. Prior to that meeting, Paul 
Morrell, Mr. Griffin's Chief of Staff, said he told the contract 
employee running the Video Teleconferencing Service (ViTS) center not 
to record the session, although the employee does not recall that 
directive. However, during the planning for the meeting, a NASA public 
affairs officer requested a DVD be made of the meeting, and when the 
meeting was actually held, there were multiple signs (as many as 8) 
noting that the session was being recorded. It was subsequently learned 
that at least two of the NASA centers also videotaped the session so 
that employees who were not present could view the meeting. This 
appears to be a standard practice in NASA IG staff ``all hands'' 
videoconferences.

The Meeting

    Mr. Griffin addressed the meeting, which was also attended by Mr. 
Cobb. According to written reports from attendees of the meeting, Mr. 
Griffin went far beyond a simple recitation of his support for Mr. 
Cobb, the facts of Mr. Cobb's corrective action plan, and an assurance 
of independence for the OIG's office. Mr. Griffin indicated that he was 
not interested in the OIG's program or operational audits because the 
OIG staff did not have the technical skills to audit in that area, that 
OIG auditors should not be questioning NASA management decisions, and 
that he would not pay attention to findings that didn't result in 
savings in the hundreds of millions of dollars. Attendees at the 
meetings also indicated that it was inappropriate for Mr. Cobb to be at 
the meeting if open and honest dialogue was the goal.

Destruction of the Video Records of the Meeting

    Early on April 11, Mr. Griffin's Chief of Staff called the ViTS 
center employee. At the request of the Public Affairs Office, the 
employee had created an original DVD and four copies, which were to be 
provided to various offices. Mr. Morrell told the ViTS employee that 
this meeting was not to be recorded and to get back the DVD and the 
copies. The ViTS employee did so, and also called all of the centers 
and told them to destroy the copies that they had. In a dramatic 
moment, the ViTS person at one center actually destroyed a videotape by 
beating it with a shelf board. Mr. Morrell claims that he never even 
asked about whether the Centers might have tapes; the ViTS staffer 
remembers this somewhat differently and is fairly confident he was 
following Mr. Morrell's orders when he asked the Center ViTS people to 
collect and destroy tapes.
    At headquarters that morning, Mr. Morrell collected all of the DVDs 
and then gave them to Michael Wholley, NASA's General Counsel. Some 
time later, Mr. Wholley destroyed the DVDs by breaking them up with his 
hands. Mr. Wholley later told Committee staff that he did so because he 
wanted to be sure that no one could obtain the DVD by filing a request 
under the Freedom of Information Act (FOIA).

Congressional Request

    On April 18, the Committee learned of the April 10 meeting and the 
possible destruction of the video recordings of that meeting and sent 
letters to Administrator Griffin and Inspector General Cobb requesting 
a copy of the videotape and all records related to it. When the 
response stated that all copies had been destroyed, the Committee asked 
for all records relating to Mr. Griffin's review of the PCIE report, 
the April 10 meeting with the OIG staff and the destruction of the 
video records.

Committee Investigation

    Ever since Mr. Johnson put the responsibility on Mr. Griffin to 
develop and implement a corrective action plan for NASA's Inspector 
General, there have been concerns in Congress and elsewhere that it 
would be difficult for Mr. Cobb to maintain his independence from NASA 
management when he owed his continuance as NASA's IG to Mr. Griffin and 
his General Counsel. This is of particular concern as one of the 
substantiated allegations was that Mr. Cobb did not demonstrate the 
appearance of a lack of independence of the prior NASA Administrator 
and General. Staff review of the responsive documents and follow-up 
interviews indicate a disturbing lack of concern by NASA management 
about maintaining the independence of its Office of Inspector General.
    The actions by staff at the highest levels of NASA to physically 
destroy records of a questionable meeting between the Administrator and 
the OIG staff points to a serious lack of public accountability. It is 
unprecedented for a General Counsel to personally and knowingly destroy 
agency records so that they cannot be obtained by Congress or the 
public. Apologies referring to the use of ``stupid pills'' are not 
acceptable for a person in such a position of public trust and 
responsibility.
    In its hearing, the Committee will hear from witnesses personally 
involved in both the meeting and the destruction of its record.

Witnesses:

    The first two witnesses are current, high-ranking staff of the NASA 
Inspector General's office. They will testify as to the impact of Dr. 
Griffin's address to the OIG staff. They also have insights into the 
destruction of tapes.

          Evelyn Klemstine, Assistant Inspector General for 
        Audits, NASA Office of Inspector General

          Kevin Winters, Assistant Inspector General for 
        Investigations, NASA Office of Inspector General

    The second panel of witnesses can speak to the disposition of the 
Cobb case by NASA when it was presented to the agency by PCIE. They can 
also speak to the relationship between Cobb and Wholley. Finally, they 
can address the manner and motive for destroying the recordings of 
Administrator Griffin's appearance before the IG staff.

          Michael Wholley, General Counsel, NASA

          Paul Morrell, Chief of Staff, NASA
    Chairman Miller. Good morning. The hearing will come to 
order.
    In January, the Integrity Committee of the President's 
Council on Integrity and Efficiency, PCIE, completed an 
investigation into allegations of misconduct by Robert 
``Moose'' Cobb, the Inspector General of the National 
Aeronautics and Space Administration, NASA.
    The report was damning. The report found that Mr. Cobb 
abused his authority and showed a lack of the appearance of 
independence from NASA management, and concluded that 
discipline up to and including removal was appropriate. After 
reading the report, Chairman Gordon and I of this committee, 
and Senator Bill Nelson, the Chair of the counterpart committee 
in the Senate, called upon President Bush to remove Mr. Cobb as 
Inspector General of NASA.
    Mr. Cobb continues to serve at the pleasure of the 
President. It apparently continues to please President Bush for 
Mr. Cobb to serve as the NASA Inspector General. This 
committee, this subcommittee, will hear from Mr. Cobb and 
others in the next weeks concerning the allegations of 
misconduct that were the subject of the PCIE report.
    As damning as the report was, it appears on closer 
examination that the report was overly generous. The subject of 
this hearing is the conduct of NASA officials in handling the 
Cobb matter. Specifically, this hearing concerns a meeting with 
the staff of the Office of Inspector General of NASA, a meeting 
that all staff members were expected to attend, a meeting at 
which Mr. Cobb sat beside Administrator Michael Griffin while 
Administrator Griffin disputed the findings of the PCIE report. 
NASA officials certainly have known that such a meeting would 
only further the appearance of a lack of independence by the 
NASA Inspector General.
    In his prepared statement today, Michael Wholley, the 
General Counsel of NASA, is in high dudgeon about the accounts 
of NASA employees who attended the meeting, which he testifies 
range from the patently false to the ridiculous. He asserts 
that this subcommittee should be skeptical of allegations 
slipped under the door or thrown over the transom, often 
anonymously or with the request for anonymity. That is exactly 
how whistleblowers provide information to oversight committees 
of Congress and to Inspector Generals acting independently, as 
required by statute.
    We could have known for certain just exactly what happened 
at that meeting, and not had to decide between wildly 
conflicting accounts, decide which accounts to believe, because 
there was a DVD made of the meeting, and then copies were made 
of the DVD. Mr. Wholley personally destroyed those tapes. A 
great American lawyer, Elihu Root, said that about half the 
practice of a decent lawyer is telling would-be clients that 
they are damn fools and should stop. That is a view of the 
ethical expectations of a lawyer that I learned in law school, 
and it remains the expectation set forth in the Code of 
Professional Responsibility.
    Instead, the view within NASA apparently was that DVDs 
could be destroyed absent advice that any legal arguments that 
the DVDs should be preserved was ``categorically fatally 
legally flawed.'' I worry that the ethical obligations of a 
lawyer that I learned in law school are now regarded as quaint 
and antiquated like the Geneva Convention.
    NASA officials, Mr. Wholley and Paul Morrell, knew that 
there were questions about the propriety of the meeting. They 
knew that the Cobb matter was a subject of interest by the 
oversight committees of the House and the Senate. They knew 
that the DVD of the meeting would be subject to disclosure, and 
Mr. Wholley made a conscious decision to destroy the DVDs. It 
is impossible not to conclude the worst from that conduct.
    At this time, the Chair recognizes Ranking Member 
Sensenbrenner for his opening statement.
    [The prepared statement of Chairman Miller follows:]
               Prepared Statement of Chairman Brad Miller
    Good morning. In January, the Integrity Committee of the 
President's Council on Integrity and Efficiency (PCIE) completed an 
investigation into allegations of misconduct by Robert ``Moose'' Cobb, 
the Inspector General of the National Aeronautics and Space 
Administration (NASA). The report was damning.
    The report found that Mr. Cobb abused his authority and showed a 
lack of the appearance of independence from NASA management, and 
concluded that discipline ``up to and including removal'' was 
appropriate. After reading the report, Chairman Gordon and I and 
Senator Bill Nelson, the Chair of the counterpart committee in the 
Senate, called upon President Bush to remove Mr. Cobb and Inspector 
General of NASA.
    Mr. Cobb serves at the pleasure of the President, and it apparently 
still pleases President Bush for Mr. Cobb to serve as the NASA 
Inspector General.
    This subcommittee will likely hear from Mr. Cobb and others in the 
next few weeks concerning the allegations of misconduct that were the 
subject of the PCIE report. As damning as the report was, it appears on 
closer examination that the report was overly generous.
    The subject of this hearing is the conduct of NASA officials in 
handling the Cobb matter.
    Specifically, this hearing concerns a meeting with the staff of the 
Office of Inspector General of NASA, a meeting all staff members were 
expected to attend, a meeting at which Mr. Cobb sat beside 
Administrator Michael Griffin while Administrator Griffin disputed the 
findings of the PCIE report. NASA officials certainly should have known 
that such a meeting would only further the appearance of a lack of 
independence by the NASA Inspector General.
    In his prepared statement, Michael Wholly, the General Counsel at 
NASA, is in high dudgeon about the accounts of NASA employees who 
attended the meeting, which he testifies ``range from the patently 
false to the ridiculous.'' He asserts that this subcommittee should be 
skeptical of ``allegations slipped under the door or thrown over the 
transom, often anonymously or with the request for anonymity.'' That is 
exactly how whistle blowers provide information to oversight committees 
of Congress, and to Inspector Generals acting independently as required 
by statute.
    We could have known for certain just exactly what happened at that 
meeting, and not had to decide whose wildly conflicting account to 
believe, because there was a DVD made of the meeting, and then copies 
were made of the DVD. Mr. Wholly personally destroyed those tapes.
    A great American lawyer, Elihu Root, said that ``About half of the 
practice of a decent lawyer is telling would-be clients that they are 
damned fools and should stop.'' That is the view of the ethical 
expectations of a lawyer that I learned in law school, and it remains 
the expectation set forth in the Code of Professional Responsibility. 
Instead, the view within NASA apparently was the DVDs could be 
destroyed absent advice that any legal arguments that the DVDs should 
be preserved was ``CATEGORICALLY, . . .FATALLY, LEGALLY, FLAWED.''
    I worry that the ethical obligations of lawyers that I learned in 
law school are now regarded as quaint and antiquated, like the Geneva 
Convention.
    NASA officials, Mr. Wholly and Paul Morrell, knew that there were 
questions about the propriety of the meeting, they knew that the Cobb 
matter was the subject of interest by the oversight committees of the 
House and Senate, and they knew that the DVD of the meeting would be 
subject to disclosure, and Mr. Wholly made a conscious decision to 
destroy the DVDs. It is impossible not to conclude the worst from that 
conduct.

    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    We are here today, in part, to reconstruct a meeting we 
should have been able to watch. Congress relies on Inspectors 
General as agency watchdogs to oversee the conduct at agencies. 
And let me say, ten years ago, when I was the Chairman of the 
Full Science Committee, I used Inspectors General very 
effectively in doing the oversight that the Constitution and 
the public demands that the Congress do.
    And even though I had a very contentious relationship with 
then Administrator Daniel Goldin, the Inspector General, who 
was also appointed by President Clinton, maintained his fierce 
independence, and was able not only to give the Committee 
relevant information on matters of concern, but according to 
Mr. Goldin, these efforts, together with others that this 
committee did, made NASA a better agency.
    Now, because we rely on Inspectors General so heavily, we 
take allegations against them seriously, and after a year-long 
investigation and deliberative process, in which Congress was 
kept almost entirely in the dark, the President's Council on 
Integrity and Efficiency, the PCIE mentioned, too, by the 
Chairman, forwarded its investigative committee's findings on 
NASA's Inspector General to Administrator Michael Griffin.
    Administrator Griffin, in concert with NASA's senior 
management, reviewed the findings, and recommended that the 
Inspector General attend management training courses. He 
forwarded his recommendations to the Chairman of the PCIE, who 
adopted them. Administrator Griffin then scheduled a meeting on 
April 10 with staff from the Office of the Inspector General to 
explain his decision.
    By several accounts, Administrator Griffin's meeting on 
April 10, with the Office of the IG further undermined the IG's 
independence, and I am extremely concerned about that. As one 
NASA employee told Committee staff after attending the meeting, 
if there was an appearance of independence before, there is 
none now. Given our reliance on Inspectors General, Congress 
would have benefited from reviewing a tape of that meeting. It 
is therefore unfortunate that these tapes were destroyed, but 
hopefully, through testimony today, we can develop an accurate 
picture of the meeting as possible.
    I would further request the Chair, and I will be happy to 
sign a letter to that effect, to refer this matter to the 
Justice Department for investigation, because I believe that 
this tape, which was produced by a NASA employee with NASA 
equipment, is government property, and there are criminal 
penalties for the destruction of government property.
    But perhaps more unfortunately, we need to know why 
recordings of that meeting were destroyed. I believe in open 
government, and I am very concerned to hear that a government 
employee was beating a videocassette with a plank and an 
agency's General Counsel physically destroyed a stack of DVDs. 
The fact that these events happened at different locations 
across the country, and the fact that no copies of the recorded 
meeting remain, suggest a coordinated effort to destroy all 
record of the event.
    This destruction also seems to have occurred with limited 
understanding of the applicable law, and under full awareness 
that Congress and specifically, this subcommittee, was 
investigating this issue. I believe that personnel decisions 
within the Administration should be handled by the 
Administration, and as such, I support the decisions made by 
NASA, the PCIE, and the President, but these decisions need to 
be made transparently, and they need to be made in a way that 
preserves confidence in the Office of Inspector General and our 
agencies' leadership.
    From the information that this subcommittee has received to 
date, there is no reason to give us any confidence whatsoever 
in how this matter was handled, and I hope that this hearing 
inspires confidence, and will be able to restore at least a 
scintilla of faith in what is going on at NASA headquarters.
    Thank you.
    [The prepared statement of Mr. Sensenbrenner follows:]
      Prepared Statement of Representative F. James Sensenbrenner
    We are here today, in part, to reconstruct a meeting that we should 
have been able to watch. Congress relies on inspectors general as 
agency watchdogs to oversee the conduct at agencies. As such, we take 
allegations against inspectors general seriously. After a year-long 
investigative and deliberative process, in which Congress was kept 
almost entirely in the dark, the President's Council on Integrity and 
Efficiency (PCIE) forwarded its Investigative Committee's findings on 
NASA's Inspector General to NASA's Administrator, Michael Griffin. 
Administrator Griffin, in concert with NASA senior management, reviewed 
the findings and recommended that the Inspector General attend 
management training courses. He forwarded his recommendations to the 
Chairman of the PCIE, who adopted them. Administrator Griffin then 
scheduled a meeting on April 10 with staff from the Office of the 
Inspector General to explain his decision.
    By several accounts, Administrator Griffin's April 10 meeting with 
the Office of the Inspector General further undermined the NASA 
Inspector General's independence. As one NASA employee told Committee 
staff after attending the meeting, ``If there wasn't an appearance of 
independence before, there is now.''
    Given our reliance on inspectors general, Congress would have 
benefited from reviewing a tape of that meeting. It is therefore 
unfortunate that the tapes were destroyed, but hopefully, through 
testimony today, we can develop as accurate a picture of the meeting as 
possible.
    Perhaps more unfortunately, we also need to understand why 
recordings of that meeting were destroyed. I believe in open government 
and I am very concerned to hear that a government employee was beating 
a videocassette with a plank and an Agency's General Counsel physically 
destroyed a stack of DVDs. The fact that these events happened at 
different locations across the country and the fact that no copies of 
the recorded meeting remain, suggest a coordinated effort to destroy 
all record of the event. This destruction also seems to have occurred 
with limited understanding of the applicable law and under full 
awareness that Congress was investigating this issue.
    I believe that personnel decisions within the Administration should 
be handled by the Administration. As such, I support the decisions made 
by NASA, the PCIE, and the President. But those decisions need to be 
made transparently and they need to be made in a way that preserves 
confidence in the Office of the Inspector General and in our agencies' 
leadership. Hopefully, today's hearing will inspire that confidence.

    Chairman Miller. Thank you, Mr. Sensenbrenner.
    Our first panel will not be providing written testimony or 
formal opening statements, though I understand that you may be, 
would like to say something extemporaneously in a moment before 
we actually begin with our questions.
    We have asked both of them, in large part, to discuss the 
April 10 meeting that is at issue here, between Administrator 
Griffin and the staff of NASA's Office of the Inspector 
General. In response, the response of the staff to that 
meeting, and the destruction of the DVDs of the meeting.
    Evelyn Klemstine is the Assistant Deputy Inspector General 
for Audits at NASA. Kevin Winters is the Assistant Deputy 
Inspector General for Inspections. In a senior OIG, Office of 
Inspector General staff meeting on April 11, Ms. Klemstine 
brought the concerns of the OIG staff, that the OIG staff had 
raised with her about the meeting, and subsequently, drafted a 
memo that set forth those concerns.
    In an interview with the Committee staff, Mr. Winters also 
expressed reservations about the propriety of the meeting, and 
said that he was investigating the destruction of the DVD.
    We want to thank both of you for being here. It is the 
practice of the Subcommittee to take testimony under oath. Do 
either of you have any objections to being sworn in?
    Mr. Winters. No, Mr. Chairman.
    Ms. Klemstine. No, Mr. Chairman.
    Chairman Miller. Okay. You also have the right to be 
represented by Counsel. Are either of you represented by 
Counsel today?
    Mr. Winters. No, Mr. Chairman.
    Ms. Klemstine. No, Mr. Chairman.
    Chairman Miller. All right. If you would please stand and 
raise your right hand.
    [Witnesses sworn]
    Chairman Miller. Two quick matters. One is before we begin, 
I would like to place into the exhibit of this hearing a record 
of exhibits. That has been provided to Mr. Sensenbrenner, to 
the Minority staff as well, and is, I believe, on the table for 
your reference, for the witnesses, reference by the witnesses. 
And without objection, it is so ordered. [The information 
appears in the Appendix.]
    And then, second, I know that neither of you were asked, we 
didn't ask either one of you to provide a written statement, 
but either of you wish to make any preliminary statement before 
we begin?
    Mr. Winters. Yes, Mr. Chairman. Thank you.
    Chairman Miller. Mr. Winters.

                                Panel 1:

STATEMENT OF MS. EVELYN KLEMSTINE, ASSISTANT INSPECTOR GENERAL 
  FOR AUDITS, NASA OFFICE OF INSPECTOR GENERAL AND MR. KEVIN 
 WINTERS, ASSISTANT INSPECTOR GENERAL FOR INVESTIGATIONS, NASA 
                  OFFICE OF INSPECTOR GENERAL

    Mr. Winters. My name is Kevin Winters. I am the Assistant 
Inspector General for Investigations at NASA's Office of 
Inspector General.
    With the Chairman's permission, we would like to provide a 
brief opening statement. Our intent is to provide what we hope 
is a helpful context regarding the organizations for which Ms. 
Klemstine and myself are responsible.
    As the Chairman knows, the mission of the Office of 
Inspector General is to conduct objective oversight of NASA's 
programs and operations, and then, to independently report to 
the NASA Administrator, this Congress, and to the public, to 
further help NASA's accomplishment of its mission.
    Public Law 95-452, commonly known as the Inspector General 
Act of 1978, is the statutory basis for Offices of Inspector 
General throughout 61 federal agencies, and accordingly serves 
as our statutory foundation for a series of broad mandates.
    One such mandate under the Act is that the Office of 
Inspector General perform the following two operational 
functions: one being audits, the second being investigations. 
The Office of Audits, supervised by Ms. Klemstine to my right, 
focuses on the conduct of audit activities relating to NASA's 
programs and operations. There are 101 NASA OIG employees in 
the Office of Audits, who are deployed throughout most of 
NASA's field centers. Ms. Klemstine, as the Assistant Inspector 
General for Audits, is a 28-year career civil servant, largely 
in the IG community, and has been with NASA OIG since November 
2004.
    I am privileged to lead the other operational function, the 
Office of Investigations, which performs investigative 
activities both criminal and administrative, pertaining to 
NASA's programs and operations.
    There are 81 NASA OIG employees in the Office of 
Investigations, of which 58 are federal law enforcement 
officers who serve as special agents. Like their audit 
counterparts, our investigative staff is deployed throughout 
most of NASA's field centers.
    As the Assistant Inspector General for Investigations, I am 
relatively new to the Inspector General community, having 
served in NASA OIG for 17 months. Before that, I served 30 
years of uniformed service in the U.S. Marine Corps. Like Ms. 
Klemstine, I am now a civil servant.
    Finally, we are responsible for our respective functions to 
NASA Inspector General, the Honorable Robert Cobb. As the 
Chairman mentioned, Mr. Cobb was nominated by the President as 
NASA's Inspector General, on February 26, 2002, and confirmed 
by the U.S. Senate on April 11, 2002.
    We are here today at your invitation, and we look forward 
to your questions.

                               Discussion

    Chairman Miller. Thank you, Mr. Winters. That was one of 
the better opening statements I have heard, certainly from a 
witness that we didn't ask to prepare an opening statement. If 
all witnesses that we didn't ask to prepare an opening 
statement gave one like that, we would not ask more often.
    At this point, I will recognize myself for five minutes, 
and Mr. Sensenbrenner for five minutes. If any other Members 
attend, they will be entitled to five minutes of questioning as 
well. We will rotate back and forth until we have completed the 
questions that we have of you.

                         April 10, 2007 Meeting

    Mr. Winters and Ms. Klemstine, you did both hear of the 
all-hands meeting on April 10. How did that e-mail, how did you 
hear of that meeting?
    Ms. Klemstine. I received an e-mail from the Deputy 
Inspector General, stating that there would be a meeting on 
April 10 that was mandatory for all staff members.
    Chairman Miller. Okay. Mr. Winters.
    Mr. Winters. The same thing, it was an e-mail on April 9, 
which I believe was a Monday, late in the day, I want to say 
about 5:00, from the Deputy.
    Chairman Miller. And the Deputy was Tom Howard.
    Mr. Winters. It was Mr. Tom Howard.
    Chairman Miller. All right. Thank you.
    If employees cannot attend all-hands meetings, meetings at 
which every member of the staff is expected to attend, has it 
been the practice to have a recording of that meeting for those 
employees, and is it reasonable to do so?
    Ms. Klemstine. Yes. Every all-hands meeting I have been to, 
as well as some ethics training, and other meetings where 
everybody is required to go to, have always been videotaped.
    Mr. Winters. Yes. I think it is a reasonable idea that 
people can come back and look at a tape. In this case, I don't 
have a recollection that it was mandatory to go back and look 
at a tape, though.
    Chairman Miller. Okay. Mr. Winters, you told us, our staff, 
that Mr. Cobb, Mr. Howard, Ms. Klemstine, and you were in the 
meeting room when the Administrator, Mr. Griffin, came in, and 
Mr. Morrell and Mr. Wholley.
    You said to our staff that was tension in the room. What 
was the nature of the tension? Could you describe the 
atmosphere in the room?
    Mr. Winters. It was a room in the basement of the NASA 
Headquarters building, tiered seating. All the NASA OIG 
employees were present in the room, who worked in the 
Headquarters building, and to our front were the nine 
respective NASA field centers displayed up on the screen.
    The purpose of the meeting was generally known, that the 
Administrator was going to discuss, more or less, his review 
and findings, or it was assumed that he was going to discuss 
his review and findings of the PCIE investigation. So, there 
was a natural, in my opinion, tension that the Administrator 
was going to discuss allegations of misconduct of our boss. So, 
it was quite reasonable to have a feeling of tension about 
that, with our boss present.
    Chairman Miller. Sure. Mr. Winters, you told our staff, our 
Subcommittee staff, that you knew instinctively that this 
meeting was a mistake, that it gave a perception of a lack of 
independence of the Inspector General. Is that your testimony 
today as well?
    Mr. Winters. That might be a bit of an overstatement, but 
in my opinion, it was and is difficult to have that type of a 
discussion with your boss present.
    Chairman Miller. So, it was the appearance--well, you told 
the staff that there were visuals that raised questions by you 
and by other members of the staff. What did you mean by that?
    Mr. Winters. The optics of the head of the NASA, the 
Administrator, reviewing a report of allegations in front of 
the Inspector General, and speaking to the staff about it. The 
optics of just those people in the same room together, talking 
about this particular subject.
    Chairman Miller. Okay. So, in Washington, we would say that 
there was a problem with the optics outside of the beltway, and 
the rest of America would say it looked bad?
    Mr. Winters. I think that might be an overstatement, Mr. 
Chairman, but the optics did raise issues, obviously.
    Chairman Miller. Okay. Ms. Klemstine, do you think it was a 
bad idea? Did you think so at the time, and do you think so 
now, to have the meeting with Mr. Cobb present?
    Ms. Klemstine. I definitely felt that Mr. Cobb should not 
be there. I was surprised that he was at the meeting. I had not 
had that expectation.
    However, what I was looking for at that meeting was 
basically, ``a pep talk.'' I felt like our organization needed 
somebody to come in and tell us that we were valuable to the 
organization, that we provided some input, and that was what I 
was looking for.
    So, I wasn't opposed to having the meeting, but I didn't 
agree with the content of the meeting.
    Chairman Miller. Okay. Ms. Klemstine, did your senior staff 
express any kind of concern to you about the meeting?
    Ms. Klemstine. Not prior to the meeting, but after the 
meeting.
    Chairman Miller. Okay. What was the nature of their 
concern?
    Ms. Klemstine. Some of the comments made by the 
Administrator as they related to the audit community.
    Chairman Miller. All right. I am going to go over my time 
just very briefly. I am going to refer to a memo dated April 
23, 2007. That is Exhibit 1 in the book in front of you. Could 
you tell us what that document is?
    Ms. Klemstine. Yes. It is an e-mail that I prepared for the 
Deputy Inspector General. The day after the Administrator had 
spoken with us, Wednesday, we had our senior staff meeting, as 
we do every Wednesday, and at the senior staff meeting, I 
expressed at the meeting that my staff had concerns about some 
of the content of the ViTS. At that time, I was told to 
basically document those concerns, and this is the result of 
that documentation.
    Chairman Miller. Okay. And the concerns were that it was 
not appropriate for Mr. Cobb to be at the meeting?
    Ms. Klemstine. Yes.
    Chairman Miller. And certainly not if Mr. Griffin expected 
an open discussion of the staff. Is that----
    Ms. Klemstine. Yes, that is correct.
    Chairman Miller. And did Mr. Cobb ever address the 
appearance, the issue of the appearance of a lack of 
independence, and what would be done to correct that 
appearance?
    Ms. Klemstine. At the meeting itself?
    Chairman Miller. Did I say Mr. Cobb? I meant, Mr. Griffin 
is what I meant to say.
    Ms. Klemstine. Oh. Did he address--I am not quite sure I 
understand the question.
    Chairman Miller. I am sorry. It was one of the concerns 
that your staff expressed, was that Mr. Griffin never addressed 
the principal concern of the PCIE report, that Mr. Cobb failed 
to maintain the appearance of independence.
    Ms. Klemstine. Yes, that was one of their concerns.
    Chairman Miller. That Mr. Griffin never addressed that----
    Ms. Klemstine. Yes.
    Chairman Miller. That concern. Okay. And the--and did 
Administrator Griffin also express, describe the work of the 
OIG?
    Ms. Klemstine. He described the work in terms of what it 
was that he thought we ought to be concentrating on, or areas 
that he thought that we should do, such as fraud, waste, and 
abuse, and other areas where he didn't think that we added 
value to the community.
    Chairman Miller. All right. And did your staff express to 
you how they regarded Mr. Griffin's statement? Did they find 
them disheartening?
    Ms. Klemstine. Yes. Several people were quite upset about 
some of the comments.
    Chairman Miller. Okay.
    Ms. Klemstine. Especially my technical staff.
    Chairman Miller. Okay. And did Mr. Griffin make any, say 
anything about the technical expertise of the staff?
    Ms. Klemstine. Yeah, he basically said that the audit 
community didn't have the ability to make technical type, I 
don't want to say decisions, but recommendations, I guess would 
be the correct word. Those weren't his exact words, but in 
generality.
    Chairman Miller. So, okay, the staff lacked the technical 
competence to make them.
    Ms. Klemstine. Right, exactly, that you know, he had 
engineers and technical people on his staff that were more 
technically knowledgeable than those that would be on an audit 
staff, even though I do have engineers, as well as software 
engineers, as part of my staff.
    Chairman Miller. Okay. So, this is, expecting a pep talk, 
you got something very different.
    Ms. Klemstine. That was my expectation, yes. I was looking 
for, because I have been there for two and a half years, and we 
have been under this cloud, and I really wanted, not only for 
myself but for my staff, some feeling of adding value to the 
organization.
    Chairman Miller. Okay. Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    I would kind of like to go on the broader issues. Do you 
think the impression that was given by Administrator Griffin's 
talk to the IG staff was appropriate?
    Ms. Klemstine. No.
    Mr. Sensenbrenner. And why?
    Ms. Klemstine. Again, as I stated earlier, I really felt 
that he did owe us some type of pep thing, but I didn't think 
that he should go as far as making comments about the fact 
that, you know, if it wasn't a billion dollars worth of 
savings, it wasn't worth reviewing, that we didn't have the 
technical expertise to do certain types of jobs, and that our 
jobs should be basically focused on fraud, waste, and abuse.
    Mr. Sensenbrenner. You think that Administrator Griffin's 
comments undermined the independence of the IG staff? Either of 
you.
    Ms. Klemstine. I think that would be an individual to 
individual comment. Personally, it did not undermine my 
independence, because I have been in this community a long 
time, and I know that people make comments specifically on the 
audit side. But I do know that many of my staff members did 
feel undermined by his comments.
    Mr. Sensenbrenner. Now, did Administrator Griffin make 
these comments in response to a question, or was this just 
something that he said on his own, and not in response to any 
questions by the audience?
    Ms. Klemstine. It was in response to a question from the 
audience.
    Mr. Sensenbrenner. Okay. And what was--if you can recall, 
what was the nature of that question?
    Ms. Klemstine. The nature of the question, that was 
actually from, not somebody from the audit community, was 
specifically what type of audits do you think we should be 
doing?
    Mr. Sensenbrenner. And that question, which came from 
outside the audit community, and the answer of Administrator 
Griffin, in your opinion, did it undermine the independence of 
the audit community to be able to do its job?
    Ms. Klemstine. Again, I am not sure it undermines. It does 
leave an impression.
    Mr. Sensenbrenner. Okay.
    Ms. Klemstine. I mean, we are going to do what we need to 
do, but it does leave the, what is the value, if the 
Administrator is not interested in our work, then how are we 
contributing?
    Mr. Sensenbrenner. Well, he might not be interested, but we 
are.
    Ms. Klemstine. Right. And I--right, granted. And that is 
why it doesn't undermine, because obviously, you are 
preponderant customer, so you know, that is, it is just one 
part of the equation.
    Mr. Sensenbrenner. Not only the customer, but the sugar 
daddy that gives you money every year, too.
    Ms. Klemstine. Right.
    Mr. Winters. Mr. Sensenbrenner, may I----
    Mr. Sensenbrenner. Yeah.
    Mr. Winters.--put you back on that line of questioning?
    Mr. Sensenbrenner. Yeah.
    Mr. Winters. The Administrator was very careful, in terms 
of his prepared remarks, and I think this committee has a copy 
of the prepared remarks. He actually worked from a list of 
talking points, in terms of what he wanted to communicate with 
our staff.
    And the comments that Ms. Klemstine is referring to were in 
response, of course, to questions, and it was my impression, 
again, we are in the world of perceptions and how you view 
evidence and how you view statements, that the Administrator 
was very careful in qualifying his remarks, because he was 
being asked as to his opinions, as to what mattered to him, in 
terms of our work--as to the priority and to the type of work 
that we are doing.
    And he went on at great length that he valued very much the 
fraud, waste, and abuse type investigations that we do. And 
then, he went into his opinions as to management-type 
recommendations, which he hears, apparently, you know, 
according to him, every day. In terms of winners and losers on 
decisions that are made, it was my impression that he was 
saying that management-type recommendations are not as helpful 
to him, in terms of the work the OIG does, as compared to the 
typical criminal fraud, waste, and abuse investigations.
    Mr. Sensenbrenner. When did you first learn that the 
meeting was recorded? Both of you.
    Ms. Klemstine. It was on the screen there. There were 
several signs in the room that said that this is being 
recorded.
    Mr. Winters. That is true.
    Mr. Sensenbrenner. And when did you first learn that the 
meeting should not have been recorded?
    Ms. Klemstine. I never heard that the meeting should not 
have been recorded. What I did hear was the following morning, 
I received an e-mail from one of my staff members telling me 
that they were told to destroy the tapes, and that was my first 
knowledge that there was any type of concept of tape 
destruction.
    Mr. Winters. I first learned on Monday. Monday, I think it 
is the 16th or 17th of April. I might have my dates wrong on 
that. It was after the weekend. The meeting occurred on April 
the 10th, which I believe was a Tuesday. I had some evidence 
that employees were asking for the tapes on that Friday, the 
following Friday.
    Mr. Sensenbrenner. Are these types of meetings usually 
recorded?
    Mr. Winters. Yes.
    Mr. Sensenbrenner. Both of you say yes?
    Ms. Klemstine. Yes.
    Mr. Winters. And they are fairly rare, Mr. Sensenbrenner, 
in terms of----
    Mr. Sensenbrenner. All right.
    Mr. Winters.--all-hands meetings. This is the first all-
hands meeting that we ever had with the Administrator since I 
have been there.
    Mr. Sensenbrenner. If I can run over my time a little bit, 
too. Have either of you ever requested that a meeting of this 
type be recorded?
    Mr. Winters. No.
    Ms. Klemstine. No.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Chairman Miller. Mr. Sensenbrenner, I ran over three 
minutes. You could have gone another couple minutes if you had 
wanted to.
    To follow up on that last question, have either of you 
requested that a meeting not be recorded?
    Mr. Winters. No.
    Ms. Klemstine. No.
    Chairman Miller. Okay.
    Mr. Winters, you referred to Administrator Griffin's 
opening statement being in writing. We actually do not have a 
copy of that. It is hard to imagine our request would not have 
included, would not have reached a copy of that prepared 
statement, but can we receive that from you?
    Mr. Winters. Well, we certainly have access to all NASA 
documents, and we will make a request to get that.
    Chairman Miller. Okay. Right.
    Mr. Winters. I am sorry--is that----
    Chairman Miller. You can answer this question quickly, 
excuse me.
    Mr. Winters. We can request a document for you.
    Chairman Miller. Okay. I neglected to notice that Mr. 
Feeney was here, and he is entitled to five minutes of 
questioning as well. Mr. Feeney.
    Mr. Feeney. Well, thank you, Mr. Chairman. If now is the 
appropriate time, I probably won't have five minutes worth, but 
for both of the witnesses, my understanding is that your Office 
is to function totally independent of the Administrator's 
supervision or control. Is that right?
    Mr. Winters. Under the IG Act, we are under what is called 
the general supervision of the head of the agency, which is a 
term that is often debated in the periodicals.
    Yes, we are independent, in terms of----
    Mr. Feeney. Your mission is to be independent.
    Mr. Winters.--what we decide to investigate or audit, and 
things like that.
    Mr. Feeney. And so, for example, if the Administrator told 
you not to investigate abuse, waste, or fraud, you would have 
been required to ignore those instructions?
    Mr. Winters. Correct. We make our independent assessments 
as to what to do.
    Mr. Feeney. In his original letter calling the meeting, Mr. 
Griffin said that he had reviewed the ROI, and I have taken 
actions that I believe are necessary to address the ROI's 
findings. Did he express that in his statement that we don't 
have a copy of?
    Mr. Winters. Yes, he did. I don't know what was on the 
statement. I presume--it was a written statement one page, and 
he had some talking points, which he appeared to have, he read 
from these talking points, in terms of why we are at the 
meeting that he has been, that he was requested to provide 
input to the Chair of the PCIE, and he went through the 
chronology as to how we got to this particular place that he 
reviewed the investigation, and that he is making the following 
recommendations.
    Mr. Feeney. Other than saying that with respect to the 
technical expertise in running the agency, he felt like he had 
people more suitable and qualified. Did he, in general, give 
support to your Office, in terms of your mission, and in 
general, express sympathy or empathy with the jobs that you 
had, and support for what you do?
    Mr. Winters. Well, we represent two separate functions of 
the Office of Inspector General. From my functional area, the 
Office of Investigations, my staff was supportive of him, 
stating essentially ``good for the Administrator'' that he is 
all about finding out about fraud, waste, and abuse, and 
supports us.
    Mr. Feeney. And Ms. Klemstine.
    Ms. Klemstine. My staff's perspective, not as glowing. 
There were concerns about, especially since I do have two 
groups that specifically lean towards a technical area, both my 
Science and Aeronautics Research Group, as well as my Space 
Operation and Exploration Group. And they do more technical 
type audits, as well as make technical recommendations.
    So, there was some concern, specifically in those two 
areas.
    Mr. Feeney. And these concerns were expressed to you after 
the meeting?
    Ms. Klemstine. Yes.
    Mr. Feeney. Were they expressed during the meeting to the 
Administrator?
    Ms. Klemstine. No.
    Mr. Feeney. And was there a reason that they were not 
expressed during the meeting?
    Ms. Klemstine. No, I can't answer that question. I have not 
asked that question, nor do I know any reason why it was not 
expressed.
    Mr. Feeney. Did anybody express at the time that they felt 
it was inappropriate for Mr. Cobb to be in attendance at the 
meeting? During the meeting, did anybody tell the Administrator 
they would be more comfortable----
    Ms. Klemstine. No.
    Mr. Feeney. Okay. I have no further questions.
    Chairman Miller. Thank you.

                        Destruction of Documents

    Ms. Klemstine, we spoke for a moment about how both you and 
Mr. Winters first heard that the tapes were being destroyed. 
And I think you said you had gotten e-mails, I think according 
to your interviews with our staff, Karen VanSant was involved 
in an e-mail exchange. Catherine----
    Ms. Klemstine. Actually, it was Susan Aggen, who mentioned 
Karen VanSant. She was the one who actually had sent the e-
mail, that Karen had been told to.
    Chairman Miller. Okay. All right. And then, Catherine 
Schneiter----
    Ms. Klemstine. Schneiter, yes.
    Chairman Miller. Schneiter?
    Ms. Klemstine. Yes.
    Chairman Miller. Okay. And what did she tell you about the 
DVDs?
    Ms. Klemstine. Well, the first, and I believe that you have 
a copy of that, was an e-mail that she sent to me, saying that 
they had asked for the destruction of the tapes, and I wrote an 
e-mail back in response, saying why are we doing this? And 
then, I went actually down to physically talk to her, as to why 
was this occurring, because in my mind, it sent up a bunch of 
red flags, as to why would we destroy tapes.
    Chairman Miller. Okay. You mentioned e-mails. Exhibit 5, in 
the exhibit book before you, are those e-mails that you have 
referred to?
    Ms. Klemstine. No, this one comes from Dave Gandrud to 
Catherine. It was a different e-mail.
    Chairman Miller. I have got the wrong number. Exhibit 2.
    Ms. Klemstine. Yes.
    Chairman Miller. All right. Did you consider telling Ms. 
VanSant or Ms. Schneiter not to destroy----
    Ms. Klemstine. Yes.
    Chairman Miller.--the tapes?
    Ms. Klemstine. Very much so. I did.
    Chairman Miller. Okay. You considered it. Did you do it?
    Ms. Klemstine. No, I did not do it.
    Chairman Miller. Okay.
    Ms. Klemstine. And I did not do it because I was not the 
originator of the document.
    Chairman Miller. Okay. Do you feel any twinge of regret 
in----
    Ms. Klemstine. Yes.
    Chairman Miller.--that decision?
    Ms. Klemstine. Yes, I remember sitting at my desk when I 
got this e-mail, and I was, I remember thinking jeez, we should 
not be doing this. You know, the price to pay for destroying a 
document versus what was on the document to me wasn't worth the 
expenditure, and I did go and talk to Catherine about can't we 
try to keep it or whatever, and I did discuss it at my level, 
but I did not pursue it any higher than my level.
    Chairman Miller. Okay. Did you discuss this with Mr. 
Winters?
    Ms. Klemstine. No, he was not there at the time.
    Chairman Miller. Okay. Did you discuss him with it at any 
time?
    Ms. Klemstine. No.
    Chairman Miller. Okay. Did----
    Ms. Klemstine. You have to realize that the tapes were 
destroyed the following morning, like 8:00 or 9:00 in the 
morning. It was so quick, it was done within less than 24 
hours.
    Chairman Miller. All right. Did you hear Mr. Winters, at 
any time, tell the staff of the OIG office that destroying 
something always raises red flags? You used the phrase raises 
red flags a moment ago.
    Ms. Klemstine. Did I hear Mr. Winters make that comment?
    Chairman Miller. Right.
    Ms. Klemstine. No, I did not. That was----
    Chairman Miller. Okay. Mr. Winters, what was your response 
when you heard of the order to destroy tapes, the DVDs?
    Mr. Winters. The chronology of getting there was, might be 
helpful to the Chairman. The first time I heard that the tapes 
were destroyed was the following week, when I talked to the 
Chief of Staff of NASA.
    Chairman Miller. Okay. Did you tell your staff at any point 
that destroying something always raises red flags?
    Mr. Winters. I might have.
    Chairman Miller. Well----
    Mr. Winters. It is a reasonable statement to make, and one 
that I would hold today.
    Chairman Miller. Okay. Whether you said it or not, you 
thought it then, you think it now?
    Mr. Winters. Correct.
    Chairman Miller. Okay. Mr. Winters, did you begin an 
investigation of any kind into the destruction of the----
    Mr. Winters. Yes.
    Chairman Miller. Okay. When did you do that?
    Mr. Winters. Well, upon learning that the tapes were 
destroyed, and I went back and talked to my leadership, as to 
next steps, in terms of what to do.
    Chairman Miller. Who were your leadership?
    Mr. Winters. The Deputy Inspector General, Mr. Tom Howard.
    Chairman Miller. Mr. Winters, I know that you are a lawyer. 
Are you familiar with the evidentiary concept of spoilation, s-
p-o-i-l-a-t-i-o-n.
    Mr. Winters. Probably not as much as I should, but maybe 
the Chairman could share that with me.
    Chairman Miller. Well, let the word go forth that any 
lawyer who appears before this committee should be expected to 
be quizzed about the law. Is there any element of what you 
understand of spoliation to mean, that when a party, knowing 
that evidence will be of interest to another party, because of 
pending litigation or anticipated litigation, or the interest 
of an oversight committee, destroys a document that would be of 
interest, that the inference about what was in the document is 
damning to the person who destroyed it? Is that your 
understanding of----
    Mr. Winters. I agree with that.
    Chairman Miller. Okay. Is there any element of spoliation 
that does not fit these circumstances?
    Mr. Winters. There is not.
    Chairman Miller. Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you. For either of you, were OIG 
employees looking for copies of the destroyed tapes?
    Mr. Winters. It is my understanding there were some 
employees that missed the meeting, and were looking for the 
tapes, so they could view the meeting themselves.
    Ms. Klemstine. Yes.
    Mr. Sensenbrenner. What was your reaction, when you 
received the e-mail asking that copies of the tape be 
destroyed?
    Ms. Klemstine. I think that question applies to me. I, as I 
stated earlier, when I was sitting at my desk reading that e-
mail, my thought was why are we doing this? This is not the 
right thing to do. So, as I said, red flags went up in my head.
    Mr. Sensenbrenner. When the red flags went up, did you do 
anything in response to those flags?
    Ms. Klemstine. I went back to the originator of the e-mail, 
Ms. Schneider, and asked her specifically what is the story 
here? Why are we doing this? Again, the e-mail actually came 
out of Marshall, which is one of our field centers, where I 
first obtained the knowledge that this was going on. I was not 
familiar with the headquarters situation at all, and I was 
basically told that there was somebody standing there waiting 
to take the tape from the ViTS office, and that basically, they 
had already given the individual the ViTS tape.
    Mr. Sensenbrenner. Ms. Klemstine, you have been in the IG's 
office for a long time. Have you ever received a request like 
this?
    Ms. Klemstine. No.
    Mr. Sensenbrenner. And why do you think the NASA 
headquarters wanted those tapes destroyed?
    Ms. Klemstine. I truly do not know why. Again, the price of 
destroying those tapes was not worth, in my mind, what was on 
those tapes. And so, I cannot think why we would do that.
    Mr. Sensenbrenner. Mr. Winters.
    Mr. Winters. I can only speculate.
    Mr. Sensenbrenner. And who do you think was behind the 
decision?
    Mr. Winters. To destroy it?
    Mr. Sensenbrenner. Yes.
    Mr. Winters. The combination of either the Chief of Staff 
and the General Counsel.
    Mr. Sensenbrenner. Ms. Klemstine.
    Ms. Klemstine. I would say the same. I have no knowledge.
    Mr. Sensenbrenner. I have no further questions. We will be 
hearing from them in a few minutes.
    Chairman Miller. Mr. Feeney.
    Mr. Feeney. I have no further questions. Thanks.
    Chairman Miller. I am sure that you will be disappointed 
that that is the end of our questions for you. And if we could 
take a recess of just a couple of minutes, we will have our 
next panel.
    Thank you.
    [Recess.]
    Chairman Miller. The Subcommittee will return to order.
    And we now welcome our second panel, Michael Wholley, the 
General Counsel of NASA, and Paul Morrell, the Chief of Staff 
for NASA Administrator Michael Griffin.
    It is, as you know, the practice of the Subcommittee to 
take testimony under oath. Do any, do either of you have any 
objection to being sworn in?
    Mr. Wholley. No, sir.
    Chairman Miller. Okay. You also have a right to be 
represented by Counsel. Are you represented by Counsel today?
    Mr. Wholley. No, sir.
    Chairman Miller. If you would now please stand and raise 
your right hand.
    [Witnesses sworn]
    Chairman Miller. Thank you.
    Both of you have provided written testimony, and I believe, 
I assume that your oral testimony will be very similar to that, 
probably simply reading that.
    If you could begin with limiting that testimony to five 
minutes, all of your written testimony will be placed in the 
record, and after that, we will ask questions in turn, as we 
did before.
    We will begin with Mr. Wholley. Mr. Wholley.

                                Panel 2:

STATEMENT OF MR. MICHAEL C. WHOLLEY, GENERAL COUNSEL, NATIONAL 
          AERONAUTICS AND SPACE ADMINISTRATION (NASA)

    Mr. Wholley. Thank you, Mr. Chairman, Mr. Sensenbrenner, 
Mr. Feeney.
    I have been asked to address five issues in my testimony 
today before the Subcommittee. As you may be aware, I met with 
the staff of the Subcommittee, as well as with the staff of 
other committees on April 27, for approximately three hours, 
and addressed these five issues, as well as others, and 
answered to the best of my recollection and belief all of the 
questions posed to me.
    You have asked me to address the April 10 meeting held by 
Dr. Griffin. Dr. Griffin set out as his purpose for that 
meeting what he put in his March 14 letter: ``I will schedule a 
meeting,'' quoting Dr. Griffin, ``with the employees of the 
NASA Office of Inspector General, to inform them that I have 
reviewed the Record of Investigation (ROI), and I have taken 
the actions that I believe are necessary to address the ROI's 
findings. Such a meeting will provide me an opportunity to 
listen to any concerns that may exist among the staff, and to 
express my support,'' that would be Dr. Griffin, ``for a strong 
and effective Office of Inspector General.''
    I was in attendance at the meeting, arriving with Dr. 
Griffin and Mr. Morrell, the Chief of Staff. The meeting was 
held in the videoconference room on the lower level at NASA, 
and Dr. Griffin spoke initially for approximately ten minutes. 
He stated, as best I recall, something similar to what he had 
set forth in his letter to Mr. Johnson, with respect to the 
ROI, having revealed no evidence of a lack of integrity on the 
part of Mr. Cobb, nor did the ROI indicate any actual conflict 
of interest, or actual lack of independence on his part.
    I had watched Dr. Griffin's interview on the C-SPAN program 
Newsmakers on Sunday, April 8, which is still online, and his 
remarks at this meeting were similar to those he articulated on 
that program. Dr. Griffin then opened up the floor for 
questions, and several questions were asked and answered. I 
believe that the meeting lasted a total of approximately 30 
minutes.
    With respect to the subsequent collection and destruction 
of all video records of Administrator Griffin's meeting with 
the OIG staff, my involvement is as follows. At some point on 
the morning after the meeting, Paul Morrell came into my 
office. This was not an unusual occurrence. He had what turned 
out to be several DVDs, and he sat at a table across from my 
desk.
    He appeared upset that in spite of his direction to the 
contrary that this closed meeting was not to be recorded, the 
meeting had been recorded. As best I recall, he stated that 
someone in Public Affairs had asked that the meeting be 
recorded, and had then asked that a number of copies me made.
    Mr. Morrell indicated that he had recovered the copies from 
Public Affairs, and that this meeting was not a Public Affairs 
event, but rather, a closed meeting called by the 
Administrator, for the purpose that the Administrator set forth 
in his letter.
    I believe I told him I clearly understood his pique that 
his direction had been overridden, and that this closed meeting 
had been recorded, and that copies had been made. I believe 
that at the conclusion of our discussion, I asked him to leave 
the recordings with me, and I put them on my desk.
    I want to categorically state at no time and in no way did 
Mr. Morrell indicate to me that I should destroy these 
recordings. That did not happen. Sometime either later that 
day, or early the next day, I honestly can't recall when, I 
reviewed relevant portions of the Federal Records Act (FRA), 
and in particular, the definition of what constituted a record.
    I also briefly reviewed the Freedom of Information Act. I 
concluded that these copies made by Public Affairs were not 
records for purposes of the FRA, but also concluded that if 
they were retained and filed, they could become records by 
virtue of that retention. From my perspective, and I stated it 
to the Subcommittee staff, I did not believe it wise to have 
these in any way become records, subject to release under FOIA. 
This was a closed meeting, specifically directed to not be 
recorded, and these DVDs were not agency records at that time, 
in my opinion.
    I personally made the decision to destroy them, and I did 
so by breaking them into pieces and throwing them in the trash. 
The next time I heard anything about these recordings was while 
I was on vacation in Florida the week of April 15 at a family 
reunion. In looking at my e-mails, I believe I first learned of 
the request to provide a copy of the recording to this 
subcommittee some time in the late afternoon or the early 
evening of April 18, when I learned of the Subcommittee's 
letter of the same date. I informed my staff I didn't have any 
copies of the recording, and that I had previously destroyed 
them. At some later time, I learned that there had been other 
recordings made at other ViTS locations.
    Regarding my role in the response by Dr. Griffin to the 
report of the Integrity Committee, I became aware that 
something had been sent to Dr. Griffin from Mr. Johnson in his 
role as Chairman of the PCIE. I will try and skip forward to 
stay within my five minutes, sir. I think I received this from 
Mr. Morrell on Monday the 26th. He gave me what had been 
delivered to Dr. Griffin. I asked my executive assistant to 
print all the documents out from the CD that was provided, and 
I made arrangements to meet with Dr. Griffin and discuss how he 
wanted this handled.
    He indicated that he wanted the matter reviewed, and that 
he wanted to know the full range of options open to him. 
Specifically, I might add, he said I do not want a 
recommendation. I want to know what my options are.
    At some point, either the 27th or 28th, I discussed it with 
my Deputy. I discussed the possibility of having a newly hired 
individual, an experienced attorney who was due to begin 
working in my office the following Monday, look over the report 
and provide me her unvarnished opinion. I believed this was a 
good option, in light of her extensive experience, and the fact 
that so far as I was aware, she knew nothing about any of the 
matters or the parties involved.
    I asked Mr. Sefton to call her, and confirm that she knew 
nothing about the case, and asked her if she could begin 
working on it at the earliest opportunity, in light of the 
tight deadline that we were facing. I concurrently reviewed the 
materials. At the conclusion of her review, she provided me her 
opinion.
    I arranged for a meeting to brief Dr. Griffin, and had her, 
the newly hired attorney, brief him on her review. At the 
conclusion of that review, I indicated my full concurrence with 
her analysis. I then left all the materials with Dr. Griffin, 
informed him that under the terms of the executive order, he 
was required to certify that he had reviewed the investigation, 
and that once he had arrived at his course of action, we would 
prepare the transmittal letter back to Dr. Johnson. The rest of 
that paragraph deals with how that letter was sent back.
    I have been asked to address concerns about the monitoring 
of Mr. Cobb's actions under the corrective action plan proposed 
by Administrator Griffin. Administrator Griffin set forth his 
recommendation in his March 14 letter, and that is available to 
you, and I am sure you have it.
    I have no role in that monitoring process. The IG Act 
specifically authorizes that general supervision can be by the 
principal deputy, but cannot be delegated any further. Of 
course, there still exist all of the options available to any 
individual who wishes to file a complaint against the Inspector 
General, including the Integrity Committee, the EO process, the 
Office of Special Counsel, and others.
    Dr. Griffin has publicly and privately stated that he wants 
an independent Office of Inspector General, committed to its 
statutory charter. I have been the General Counsel at NASA 
since July 6, 2004. This is in reference to my personal 
relationship, allegedly, with Mr. Cobb. My relationship with 
Mr. Cobb is professional and amicable. Do we socialize 
together? No. I have never been to his home, nor he to mine. We 
are professional colleagues. As I stated to the staff during 
our three hour meeting, I find him to be a man of integrity. 
From my perspective, he understands his role as Inspector 
General, and carries it out with conviction and force, and we 
understand our boundaries well.
    I was asked how often I talked with him. The answer is 
simple. Every time I see him. We have worked together to 
establish an acquisition integrity program, for example, and 
both of us and our respective staffs firmly believe that it 
will pay great dividends to the agency and to the government.
    We also have disagreed on numerous occasions on the law, 
and he has the impediment of being as stubborn and oftentimes 
as argumentative as I am when we believe we are correct. We 
have, on a number of issues, agreed to disagree. I am not sure 
how much more of my five minutes are here, sir, but----
    As I stated to the staff with whom I met on April 27, I do 
not think that anybody, and I said this to the staff, I do not 
think that anybody wishes more than I do that a recording of 
that meeting could be provided to this body. There were 
somewhere between 120 and 200 people, I believe, at that 
meeting. The vast majority, in fact almost exclusively, OIG 
people. I believe the only two non-OIG were probably Mr. 
Morrell and I, and then, of course, the Administrator.
    To in any way imply I destroyed copies of the recordings in 
an attempt to destroy evidence of the substantive content of 
that meeting is just not true, sir. Not my intent. I recognize 
that memories and perceptions about what occurred there differ.
    The rest, sir, you have commented on. I am not in high 
dudgeon or in a fit of pique. I am just skeptical about 
anything that comes in front of me. You have every right to be 
skeptical as well.
    Finally, I want to publicly apologize to everyone at NASA 
and this committee who has had to expend time and effort trying 
to find out whether a copy of this record still exists. I want 
to particularly apologize to Dr. Griffin and the leadership at 
NASA. The agency has important work to do, of this Nation and 
its people, work that is critical to our national security, our 
economic future. Misdirections like this are not helpful, and I 
deeply regret that I have made this a distraction.
    I spent my professional life trying to resolve problems, 
and trying to make things better. Despite my honest and 
considered efforts in the matter of the destruction of the 
DVDs, I regret I failed to do so in this regard and 
necessitated this hearing.
    Thank you, sir.
    [The prepared statement of Mr. Wholley follows:]
                Prepared Statement of Michael C. Wholley
    I have been asked to address five issues in my testimony today 
before the Subcommittee. As you may be aware, I met with the staff of 
the Subcommittee, as well as with staff of other committees, on April 
27, 2007 for approximately three hours and addressed these five issues, 
as well as others, and answered to the best of my recollection and 
belief all of the questions posed to me.

1. You have asked me to address the April 10, 2007 meeting held by Dr. 
Griffin with the staff of the NASA OIG. Dr. Griffin had set out his 
purpose in holding such a meeting in his March 14, 2007 letter to Mr. 
Clay Johnson detailing the actions he intended to take after reviewing 
the HUD OIG Report of Investigation (ROI) on Mr. Robert Cobb, the NASA 
Inspector General. In his letter Dr. Griffin stated that:

         ``. . .I will schedule a meeting with the employees of the 
        NASA Office of Inspector General to inform them that I have 
        reviewed the ROI and I have taken the actions that I believe 
        are necessary to address the ROI's findings. Such a meeting 
        will provide me an opportunity to listen to any concerns that 
        may exist among the staff and to express my support for a 
        strong and effective Office of Inspector General.''

    I was in attendance at the meeting, arriving with Dr. Griffin and 
Mr. Paul Morrell, the Chief of Staff. The meeting was held in the video 
teleconference (ViTS) room on the lower level at NASA and Dr. Griffin 
spoke initially for approximately ten minutes. He stated, as best I 
recall, something similar to what he had set forth in his letter to Mr. 
Johnson with respect to the ROI having revealed no evidence of a lack 
of integrity on the part of Mr. Cobb, nor did it indicate any actual 
conflict of interest or actual lack of independence on his part. I had 
watched Dr. Griffin's interview on the C-Span program ``Newsmakers'' on 
Sunday morning, April 8, and his remarks at this meeting were similar 
to those he had articulated on that program. Dr. Griffin then opened up 
the floor for questions, and several questions were asked of and 
answered by Dr. Griffin. I believe that the meeting lasted a total of 
less than thirty minutes.

2. With respect to ``[T]he subsequent collection and destruction of all 
video records of Administrator Griffin's meeting with the OIG staff,'' 
my involvement was as follows. At some point the morning after the 
meeting, Paul Morrell came into my office. This was not an unusual 
occurrence. He had what turned out to be several CD cases in his hand 
and he sat at the table across from my desk. He appeared upset that, in 
spite of his direction to the contractor ViTS operator that this closed 
meeting was not to be recorded, the meeting had been recorded. As best 
I recall he stated that someone in Public Affairs had asked that the 
meeting be recorded and had then asked that a number of copies be made. 
Mr. Morrell indicated that he had recovered the copies and that this 
meeting was not a public affairs event but rather a closed meeting 
called by the Administrator. I believe I told him that I clearly 
understood his pique that his direction had been overridden, and that 
this closed meeting had been recorded and copied. I believe that at the 
conclusion of our discussion I asked him to leave the recordings with 
me, and I put them on my desk. I want to categorically state that at no 
time, and in no way, did Mr. Morrell indicate to me that I should 
destroy these recordings. That did not happen.
    Sometime either later that day or early the next day, I honestly 
cannot recall which, I reviewed relevant portions of the Federal 
Records Act (FRA) and, in particular, the definition of what 
constituted a record. I also briefly reviewed the Freedom of 
Information Act. I concluded that these were not ``records'' for 
purposes of the FRA, but also concluded that if they were retained and 
filed they could become ``records'' by virtue of that retention. From 
my perspective, and as I stated to the Subcommittee staff, I did not 
believe it wise to have these in any way become ``records'' subject to 
release under the Freedom of Information Act. This was a closed 
meeting, specifically directed to not be recorded, and these DVDs were 
not Agency records at that time. I personally made the decision to 
destroy them, and I did so by breaking them into pieces and throwing 
them in the trash.
    The next time I heard anything about these recordings was while I 
was on vacation in Florida the week of April 15th. In looking at my e-
mails, I believe that I first learned of the request to provide a copy 
of the recording to this subcommittee sometime in the late afternoon or 
early evening on April 18 when I learned of this subcommittee's letter 
of the same date. I informed my staff that I did not have any copies of 
the recording and that I had previously destroyed them. At some later 
time, I learned that there had been other recordings made at other ViTS 
locations.

3. Regarding my role in the response by Dr. Griffin to the report of 
the Integrity Committee, I became aware that ``something'' had been 
sent to Dr. Griffin from Mr. Johnson in his role as Chairman of the 
PCIE with regard to Report of Investigation of the Integrity Committee. 
To the best of my recollection, I became aware of this during a 
conversation with Mr. Morrell that occurred while we were at Ames 
Research Center in California at a Strategic Management Council 
meeting. This would have been either February 21st or 22nd. From 
reviewing my e-mails I have determined that on Monday, February 26th, 
Mr. Morrell gave me what had been delivered to Dr. Griffin. The 
``package'' consisted of the January 22, 2007 letter from the Integrity 
Committee to Mr. Johnson; Mr. Johnson's transmittal letter to Dr. 
Griffin, a copy of the ``Policy and Procedures'' of the Integrity 
Committee, a copy of Executive Order 12993, a copy of a March 24, 1989 
Memorandum Opinion from the Office of Legal Counsel to the Integrity 
Committee, and a CD marked ``ROI IC 500, Vols. I-III, -FOUO-'' I asked 
my Executive Assistant to print all of the documents on the CD and put 
them in three ring binders. I made arrangements to meet with Dr. 
Griffin and discuss how he wanted this handled. He indicated that he 
wanted the matter reviewed and that he wanted to know the full range of 
options open to him in light of the Report of Investigation. At some 
point, on either the 27th or 28th, I discussed with my Deputy, Keith 
Sefton, the possibility of having a newly-hired individual, an 
experienced attorney who was due to begin working in my office on March 
5th, look over the report and provide me her unvarnished opinion. I 
believed that this was a good option in light of her extensive 
experience and the fact that, so far as I was aware, she knew nothing 
about any of the matters or the parties involved. I asked Mr. Sefton to 
call her, confirm that she knew nothing about the case, and ask her if 
she could begin working on it at the earliest opportunity in light of 
the tight deadline that we were facing. She agreed to do so, and Mr. 
Sefton arranged to deliver a copy of the materials to her. I 
concurrently reviewed the materials. At the conclusion of her review 
she provided me her opinion. I arranged a meeting to brief Dr. Griffin, 
and had her, the newly-hired attorney, brief him on her review. At the 
conclusion of her review, I indicated my full concurrence with her 
analysis. I then left all of the materials with Dr. Griffin, informed 
him that under the terms of Executive Order 12993 he was required to 
certify that he had reviewed the investigation, and that once he had 
arrived at his course of action we would prepare the transmittal letter 
back to Mr. Johnson. I believe that it was on Monday, March 12th, that 
I met with Dr. Griffin and received his direction on what actions he 
wished to take. We had previously discussed that his actions in his 
``general supervision'' role over the IG were limited, and that several 
of the proffered options would in fact require the concurrence of the 
Chairman of the PCIE, Mr. Johnson. I prepared the draft response for 
Dr. Griffin's letter back to Mr. Johnson after the meeting, then had to 
go on travel for the remainder of the week. In my absence, the attorney 
who had reviewed the matter and who briefed Dr. Griffin worked with Mr. 
Morrell to finalize the March 14th letter transmitted back to Mr. 
Johnson.

4. Topic 4 that I have been asked to address concerns the 
``[M]onitoring of Mr. Cobb's actions under the corrective action plan 
proposed by Administrator Griffin.'' As indicated in the March 14, 2007 
letter from Dr. Griffin, he has directed that Mr. Cobb ``. . .meet with 
the Deputy Administrator on a bimonthly basis to discuss his 
implementation of his individual leadership/management plan and his 
professional growth with the Executive Coach.'' I have no role in that 
monitoring process. The IG Act specifically authorizes that ``general 
supervision'' can be by the principal deputy, but cannot be 
``delegated'' further. Of course, there still exist all of the options 
available to individuals who wish to file complaints against the 
Inspector General including the Integrity Committee, the EEO process, 
the Office of Special Counsel, and others. Dr. Griffin has publicly, 
and privately, stated that he wants an independent Office of Inspector 
General that is committed to its statutory charter.

5. I have been the General Counsel at NASA since July 26, 2004. My 
relationship with Mr. Cobb is both professional and amicable. Do we 
socialize together: no. I have never been to his home, nor he to mine. 
We are professional colleagues. As I stated to the staff during our 
three-hour meeting, I find him to be a man of integrity, intelligent, 
focused on doing the best possible job he can, and very independent. 
And I like that in a person. From my perspective, he understands his 
role as an Inspector General, carries it out with conviction and force, 
and we understand our boundaries very well. I was asked how often I 
talked with him and the answer is quite simple: every time I see him. 
We have worked together to establish an Acquisition Integrity Program, 
and both of us, and our respective staffs, firmly believe that it will 
pay great dividends to the Agency and to the government. We have also 
disagreed on the law on occasion, and he has the impediment of being as 
stubborn and argumentative as I am when we believe that we are correct. 
We have, on a number of issues, ``agreed to disagree.''
    As I stated to the staff with whom I met on April 27th, I do not 
think that anybody wishes more than I do that a recording of that 
meeting could be provided to this body. Your staff has apparently 
received allegations of what was said and done at that meeting that 
range from the patently false to the ridiculous. If a video or audio 
recording of the event existed, it would clearly demonstrate what 
actually occurred and we would not, perhaps, be having this hearing. 
There were, I believe, somewhere between 120 and 200 people, mostly OIG 
staff members including investigators, who were present at this 
meeting. To in any way imply that I destroyed the copies of the 
recordings in an attempt to destroy evidence of the substantive content 
of the meeting beggars belief. I recognize that memories and 
perceptions differ. That said, some of the allegations contained in the 
April 25th letter, and which were related to me in my meeting with the 
staffers on April 27th, were so false as to clearly imply an intent to 
mislead on the part of those who provided them.
    This latter point leads me to comment on a subject that is of 
significant and growing concern to me. I believe that ``facts'' matter, 
and that before any individual, organization or agency is pilloried, 
before anyone's reputation is destroyed publicly or privately, there is 
an ethical obligation to vigorously ascertain the truth, the factual 
underpinnings, of each and every allegation. I come here today with the 
firm conviction that such is the purpose of this hearing. My sense in 
this matter is that there has been, on the part of some of the people 
involved in this matter, a certain ``sentence first, verdict later'' 
mindset. My sense is that allegations have been slipped under the door 
or thrown over the transom, often anonymously or with the request of 
anonymity, and in all-too-many cases they are immediately given a 
mantle of ``credibility'' because they originate from someone 
``familiar with the issues'' and therefore ``must be true.'' In the 
best of all possible worlds some level of skepticism, some kernel of 
``doubt,'' some due diligence in ascertaining the facts must come into 
play. In the best of all possible worlds individuals making such 
allegations would be required to swear to the truth of what they are 
saying, and would be made aware of the consequences of any false 
statement. In the best of all possible worlds, judgment would be 
withheld, and inflammatory, inaccurate public releases and commentary 
would be curtailed until all allegations had undergone the scrutiny of 
rigorous analysis. While I recognize that such a ``perfect world'' may 
not be attainable, I nonetheless believe that each of us should do our 
part to come as close to it as possible.
    Finally, I want to publicly apologize to everyone at NASA who has 
had to expend time and effort trying to find whether a copy of this 
recording still exists. I want to particularly apologize to Dr. Griffin 
and the leadership at NASA. This agency has important work to do for 
this nation and its people, work that is critical to our national 
security and our economic future, and distractions like this are not 
helpful. I have spent my professional life trying to resolve problems 
and trying to make things better. Despite my honest and considered 
efforts in the matter of the destruction of the DVDs, I regret that I 
have failed to do so in this regard.

    Chairman Miller. Mr. Morrell.

    STATEMENT OF MR. PAUL MORRELL, CHIEF OF STAFF, NATIONAL 
          AERONAUTICS AND SPACE ADMINISTRATION (NASA)

    Mr. Morrell. Thank you, Chairman Miller, Ranking Member 
Sensenbrenner, Mr. Feeney.
    In his March 14, 2007 letter to Clay Johnson, Chairman of 
the President's Executive Council on Integrity and Efficiency, 
NASA Administrator Michael Griffin wrote: ``I will schedule a 
meeting with the employees of the NASA Office of Inspector 
General to inform them that I have reviewed the Report of 
Investigation regarding the allegations of misconduct on the 
part of NASA Inspector General Robert Cobb, and I have taken 
the actions that I believe are necessary to address the Report 
of Investigation's findings. Such a meeting will provide me an 
opportunity to listen to any concerns that may exist among the 
staff, and to express my support for a strong and effective 
Office of Inspector General.''
    In his subsequent letter to Clay Johnson, dated March 29, 
2007, Administrator Griffin wrote: ``In my meeting with IG Cobb 
and the OIG staff, I will make clear that I expect and support 
a strong OIG, which continues to be dedicated to identifying 
fraud, waste, and abuse, and that I am committed to leading an 
agency where full and frank discussions are not just tolerated, 
but are expected, condoned, and encouraged, in a climate 
without fear of retribution, and one in which the full panoply 
of protections exist for whistleblowers.''
    The meeting between the Administrator and the Office of 
Inspector General staff took place on Tuesday, April 10. The 
previous day, on Monday, April 9, I contacted the Office of 
Public Affairs to inquire about using the NASA TV facilities 
available in the headquarters auditorium for the April 10 
meeting, which included OIG staff at headquarters and the 
various NASA centers across the country. The meeting was on a 
sensitive subject, and I wanted the OIG staff to feel free to 
participate in a full and free dialogue. Therefore, I asked 
Public Affairs to determine if the equipment used in the 
auditorium could limit the broadcast of the meeting solely to 
meeting participants.
    Later that day, I was informed that the auditorium 
equipment would not allow the meeting to be limited to 
participants, and it was recommended that the headquarters 
videoconferencing facility be used instead. Concerned that the 
size of the videoconference facility was not adequate to 
accommodate the number of OIG staff expected at the meeting, I 
went to the facility and spoke to its manager, Mr. Fred Berger.
    During my conversation with Mr. Berger, we discussed 
whether the technology in the auditorium could be used, whether 
the technology available in the videoconference center could be 
used in the auditorium, and whether the video facility could 
accommodate the number of OIG staff expected to attend the 
meeting.
    I also told Mr. Berger during our conversation that the 
meeting should not be recorded. My reason for doing so was my 
belief that recording the meeting might discourage questions 
and discussion of OIG staff concerns, which was inconsistent 
with what I believed was the Administrator's stated purpose for 
the meeting.
    The next day, on April 10, shortly after I arrived at the 
meeting with the Administrator, I noticed a display on the 
video monitor at the front of the room that indicated the 
meeting was, contrary to my instructions, being recorded. Later 
that day, I placed a call to Mr. Berger to inquire why the 
meeting had been recorded. Mr. Berger was unavailable, and he 
returned my call the following morning, as I was driving to the 
office.
    I asked Mr. Berger who recorded the meeting. He said he 
did. I asked him why he recorded it, contrary to my direction. 
Mr. Berger said he forgot that I had asked him that it not be 
recorded, and that Mr. Fred Brown, from NASA TV, under the 
Office of Public Affairs, had requested that the meeting be 
recorded, and that Mr. Berger had provided Mr. Brown with a 
copy of the recording.
    I told Mr. Berger that I thought it was highly 
inappropriate for someone in Public Affairs to request a 
recording of a meeting between the OIG staff and the 
Administrator, especially when I told him the previous day that 
it should not be recorded. I asked Mr. Berger to retrieve the 
recording from Public Affairs.
    I next spoke by phone with my secretary, who informed me 
that Mr. Bob Jacobs of the Office of Public Affairs had 
delivered DVD copies of the meeting to my office. I was, 
needless to say, surprised to learn that not only had the 
meeting been recorded and provided to Public Affairs, but that 
Public Affairs was making copies.
    When I arrived at the office, I went to see Mr. Jacobs. I 
asked Mr. Jacobs if he had requested that the meeting be 
recorded. He said that he had. I told Mr. Jacobs that I 
believed it was highly inappropriate for him to have requested 
a recording of a closed meeting between the Administrator and 
the OIG staff. I told him that he did not have the authority to 
request recordings of the Administrator's non-Public Affairs-
related meetings. I requested that he provide me with any 
additional copies that he had in his possession, which he in 
turn did.
    I then went to see Mr. Fred Berger at the conferencing 
facility. When I arrived at his office, he was there with Mr. 
Fred Brown from NASA TV. Mr. Berger gave me several more DVDs. 
I asked him if what I had in my possession represented all the 
copies. He said yes.
    I took the DVDs to the NASA General Counsel. I explained to 
Mr. Mike Wholley, excuse me, what had happened, that a non-
Public Affairs-related meeting had been recorded by Public 
Affairs without proper consent or authorization, despite the 
fact that I said it should not be recorded. I asked Mr. Wholley 
what I should do with the DVDs. He said I should leave them 
with him.
    I left the General Counsel's office believing they were in 
the appropriate hands. I never directed that any DVD or 
recording be destroyed. It was my understanding that the 
original recording had been made at headquarters, and that all 
existing copies had been taken to the Office of the General 
Counsel.
    To the best of my recollection and belief, I was unaware 
that copies of the meeting had been made and destroyed at NASA 
centers until some time after the April 10 meeting had 
occurred, and I believe, to the best of my knowledge, it was 
some time the following week.
    It was and remains my strong belief that the Office of 
Public Affairs had no legitimate reason or authority to 
request, copy, or possess a recording of what was a non-Public 
Affairs-related meeting between the Administrator and the OIG 
staff. Furthermore, it was and remains my very strong belief 
that participants in a closed meeting have the right to expect 
that the contents of the meeting will remain secure and 
private, even when they know the meeting is being recorded. It 
was my very strong concern that the possession of the recording 
by Public Affairs compromised the foregoing.
    The Subcommittee asked me to address my role in the 
Administrator's response to the report of the President's 
Council on Integrity and Efficiency. My role was as a 
facilitator: scheduling meetings, conveying information, and 
coordinating the preparation, editing, review, and approval of 
correspondence. I did not review the Report of Investigation, 
and I did not make recommendations to the Administrator 
regarding his response to the Report of Investigation.
    As you know, the Administrator recommended several actions 
to the Chairman of the PCIE, and obtained his concurrence, 
consistent with the Inspector General Act. Those 
recommendations included IG Cobb's attendance at the Federal 
Executive Institute courses, and the assistance of an executive 
coach to help enhance IG Cobb's leadership and management 
skills. In addition, IG Cobb will meet with the Deputy 
Administrator on a bimonthly basis to discuss the 
implementation of his individual leadership and management 
plan, and his work with the executive coach. The Deputy 
Administrator's meetings with IG Cobb will be one way of 
monitoring his progress and his commitment to improving his 
management skills. In addition, there are a number of options 
available to OIG staff to report any future allegations of 
inappropriate actions.
    [The prepared statement of Mr. Morrell follows:]
                   Prepared Statement of Paul Morrell
    Mr. Chairman, in his March 14, 2007 letter to Clay Johnson, 
Chairman of the President's Executive Councils on Integrity and 
Efficiency, NASA Administrator Michael Griffin wrote:

         I will schedule a meeting with the employees of the NASA 
        Office of Inspector General to inform them that I have reviewed 
        the [Report of Investigation regarding the allegations of 
        misconduct on the part of NASA Inspector General Robert Cobb] 
        and I have taken the actions that I believe are necessary to 
        address the [Report of Investigation's] findings. Such a 
        meeting will provide me an opportunity to listen to any 
        concerns that may exist among the staff and to express my 
        support for a strong and effective Office of Inspector General.

    In a subsequent letter to Clay Johnson dated March 29, 2007 
Administrator Griffin wrote:

         In my meeting with IG Cobb and the OIG staff, I will make 
        clear that I expect and support a strong OIG which continues to 
        be dedicated to identifying fraud, waste, and abuse, and that I 
        am committed to leading an Agency where full and frank 
        discussions are not just tolerated but are expected, condoned, 
        and encouraged in a climate without fear of retribution, and 
        one in which the full panoply of protections exists for 
        ``whistleblowers.''

    The meeting between the Administrator and the Office of Inspector 
General (OIG) staff took place on Tuesday, April 10.
    On Monday, April 9, I contacted the Office of Public Affairs to 
inquire about using the NASA TV facilities available in the 
headquarters auditorium for the April 10 meeting, which included OIG 
staff at headquarters and the various NASA centers across the country. 
The meeting was on a sensitive subject and I wanted the OIG staff to 
feel free to participate in a full and open dialogue. Therefore, I 
asked Public Affairs to determine if the equipment used in the 
auditorium could limit the broadcast of the meeting solely to meeting 
participants.
    Later that day I was informed that the auditorium equipment would 
not allow the meeting to be limited to participants and it was 
recommended that the Headquarters video conferencing facility be used 
instead. Concerned that the size of the video conference facility was 
not adequate to accommodate the number of OIG staff expected at the 
meeting, I went to the facility and spoke to its manager, Mr. Fred 
Berger. During my conversation with Mr. Berger, we discussed whether 
the technology in the auditorium could be used, whether the technology 
available in the video conference center could be used in the 
auditorium, and whether the video facility could accommodate the number 
of OIG staff expected to attend the meeting. I also told Mr. Berger 
during our conversation that the meeting should not be recorded. My 
reason for doing so was my belief that recording the meeting might 
discourage questions and discussion of OIG staff concerns, which was 
inconsistent with what I believed was the Administrator's stated 
purpose for the meeting.
    The next day, on April 10, shortly after I arrived at the meeting 
with the Administrator, I noticed a display on a video monitor at the 
front of the room that indicated the meeting was, contrary to my 
instructions, being recorded. Later that day, I placed a call to Mr. 
Berger to inquire why the meeting had been recorded. Mr. Berger was 
unavailable and he returned my call the following morning as I was 
driving to the office. I asked Mr. Berger who recorded the meeting. He 
said he did. I asked him why he recorded it contrary to my direction. 
Mr. Berger said he forgot that I had asked that it not be recorded and 
that Mr. Fred Brown, from NASA TV under the Office of Public Affairs, 
had requested that the meeting be recorded, and that Mr. Berger had 
provided Mr. Brown with a copy of the recording. I told Mr. Berger that 
I thought it was highly inappropriate for someone in Public Affairs to 
request a recording of a meeting between the OIG staff and the 
Administrator, especially when I told him the previous day that it 
should not be recorded. I asked Mr. Berger to retrieve the recording 
from Public Affairs.
    I next spoke by phone with my secretary who informed me that Mr. 
Bob Jacobs, from the Office of Public Affairs, had delivered DVD copies 
of the meeting to my office. I was, needless to say, surprised to learn 
that not only had the meeting been recorded and provided to Public 
Affairs, but copies were being made.
    When I arrived at the office, I immediately went to see Mr. Jacobs. 
I asked Mr. Jacobs if he had requested that the meeting be recorded. He 
said that he had. I told Mr. Jacobs that I believed it was highly 
inappropriate for him to have requested a recording of a closed meeting 
between the Administrator and the OIG staff. I told Mr. Jacobs that he 
did not have the authority to request recordings of the Administrator's 
non-public affairs related meetings. I requested that he provide me 
with any additional copies that he had in his possession, which he in 
turn did.
    I then went to see Mr. Fred Berger, the manager of the video 
conferencing facility. When I arrived at Mr. Berger's office he was 
there with Mr. Fred Brown, of NASA TV. Mr. Berger gave me several more 
DVDs. I asked him if what I had in my possession represented all of the 
copies. He said yes.
    I took the DVDs to the NASA General Counsel. I explained to Mr. 
Mike Wholley what had happened--that a non-public affairs related 
meeting had been recorded by Public Affairs without proper consent or 
authorization, despite the fact that I said it should not be recorded. 
I asked Mr. Wholley what I should do with the DVDs. He said I should 
leave them with him. I left the General Counsel's Office believing they 
were in the appropriate hands.
    I never directed that any DVD or recording be destroyed. It was my 
understanding that the original recording had been made at 
headquarters, and that all existing copies had been taken to the Office 
of the General Counsel. To the best of my recollection and belief, I 
was unaware that copies of the meeting had been made and destroyed at 
NASA centers until some time after the April 10 meeting had occurred.
    It was and remains my strong belief that the Office of Public 
Affairs had no legitimate reason or authority to request, copy, or 
possess a recording of what was a non-public affairs related meeting 
between the Administrator and the OIG staff. Furthermore, it was and 
remains my very strong belief that participants in a closed meeting 
have the right to expect that the contents of that meeting will remain 
secure and private even when they know the meeting is being recorded 
internally. It was my very strong concern that possession of this 
recording by Public Affairs compromised the foregoing.
    The Subcommittee asked me to address my role in the Administrator's 
response to the report of the President's Council on Integrity and 
Efficiency (PCIE). My role was as a facilitator--scheduling meetings, 
conveying information, and coordinating the preparation, editing, 
review, and approval of correspondence. I did not review the Report of 
Investigation and I did not make any recommendations to the 
Administrator regarding his response to the Report of Investigation.
    As you know, the Administrator recommended several actions to the 
Chairman of the PCIE and obtained his concurrence consistent with the 
Inspector General Act. Those recommendations included IG Cobb's 
attendance at Federal Executive Institute courses and the assistance of 
an executive coach to help enhance the IG Cobb's leadership and 
management skills. In addition, IG Cobb will meet with the Deputy 
Administrator on a bimonthly basis to discuss the implementation of his 
individual leadership and management plan, and his work with the 
executive coach.
    The Deputy Administrator's meetings with IG Cobb will be one way of 
monitoring his progress and his commitment to improving his management 
skills. In addition, there are a number of options available to the OIG 
staff to report any future allegations of inappropriate actions.
    Thank you.

                               Discussion

    Chairman Miller. Thank you, Mr. Morrell.
    On the documents, or most of the documents that NASA has 
provided in response to this committee's request, there is, 
stamped in large type across the face of the document, in a way 
that almost obscures the contents of the documents, makes them 
very hard to read, and in the original, I understand that it is 
in red ink: ``This document is provided by NASA solely for 
Congressional use and not for further release. No waiver of 
FOIA exemption or internal agency working document/
predecisional/attorney-client privileges are waived in this 
provision for Congressional use beyond the purposes of the 
committees making the request.'' To whom is that warning 
intended?
    Mr. Wholley. Sir, I don't believe it is a warning. I 
believe it is the recognition that these are, in many cases, 
predecisional documents that would not be releasable under 
FOIA, and it was not intended, certainly, as a warning to this 
committee.
    Chairman Miller. All right. Do you contend that this 
committee cannot release the documents that you have provided 
us, under our oversight authority, to the public?
    Mr. Wholley. Sir, if we were requested for them, we would 
deny them under FOIA.
    Chairman Miller. But you don't claim that this committee 
cannot----
    Mr. Wholley. I make no such claim.
    Chairman Miller. Okay. I am struck by two provisions of 
passages in Mr. Morrell's testimony and Mr. Wholley's 
testimony. Mr. Morrell, you quoted the letter from 
Administrator Griffin on the first page of your testimony: ``I 
am committed to leading an agency where full and frank 
discussions are not just tolerated, but are expected, condoned, 
and encouraged, in a climate without fear of retribution, and 
one in which the full panoply of protections exist for 
whistleblowers.''
    Mr. Morrell, do you think that is the climate in which NASA 
and every agency should conduct their business? And Mr. 
Wholley, do you agree with that?
    Mr. Morrell. Yes, sir.
    Chairman Miller. Okay. Mr. Wholley, in your testimony, you 
said: ``My sense is that the allegations have been slipped 
under the door or thrown over the transom, often anonymously or 
with the request of anonymity, and in all too many cases, they 
are immediately given a mantle of credibility, because they 
originate from someone ``familiar with the issues,'' and 
therefore ``must be true.'' In the best of all possible worlds, 
individuals making such allegations would be required to swear 
to the truth of what they are saying, and would be made aware 
of the consequences of any false statement.''
    Mr. Wholley, aren't we talking about the same people? 
Aren't we talking about whistleblowers?
    Mr. Wholley. Sir, I----
    Chairman Miller. People who throw allegations over the 
transom to us?
    Mr. Wholley. Sir, this was not referring to things that 
have come before the Committee. It was referring to the number 
of allegations against Mr. Cobb in that Report of 
Investigation, many of which were unfounded, some of which were 
dismissed out of it.
    Chairman Miller. Those were from NASA employees that were 
whistleblowers, were they not?
    Mr. Wholley. I am not sure who they were, sir, and I am not 
sure how many of them would qualify as whistleblowers.
    Chairman Miller. Okay. Well, it seems like there is some 
category of a NASA employee that is a whistleblower, and that 
is a good thing. That is a wholesome thing. They are patriotic 
Americans. And then, there is some other category of NASA 
employees who throw things over the transom and request 
anonymity for it that is an unwholesome thing. Can you tell us 
how we are supposed to tell the difference?
    Mr. Wholley. Sir, I am not saying that one should try and 
distinguish the difference. What I said was when they come in 
that way, one needs to, as best as possible, try and find the 
factual underpinnings for whatever is being said, as opposed to 
taking it as gospel as it comes through.
    Chairman Miller. Okay. Mr. Morrell, you spoke approvingly, 
or quoted approvingly from Mr. Griffin's letter, how 
whistleblowers should be regarded and protected. Do you see 
anything in Mr. Wholley's testimony that is contrary to how you 
describe the way whistleblowers should be treated or regarded?
    Mr. Morrell. I don't want to speak for Mr. Wholley, but I 
do believe that whistleblowers should have all the protections 
afforded under law.
    Chairman Miller. Mr. Sensenbrenner. I will have time for 
additional questions.

                  More on the Destruction of Documents

    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    I want to get to the tape of the meeting, and what happened 
to it, and I have 44 United States Code Section 3301, and I 
will quote it in total: `` As used in this chapter, ``records'' 
includes all books, papers, maps, photographs, machine readable 
materials, or other documentary materials, regardless of 
physical form or characteristics, made or received by an agency 
of the United States under federal law in connection with the 
transaction of public business and preserved or appropriate for 
preservation by that agency or its legitimate successor as 
evidence of the organization, functions, policies, decisions, 
procedures, operations, or other activities of the Government 
or because of the informational value of data in them. Library 
and museum material made or acquired and preserved solely for 
reference or exhibition purposes, extra copies of documents 
preserved only for convenience of reference, and stocks of 
publications and of processed documents are not included.''
    Now, from that, it appears that the tape was a public 
record, that was at least preserved for a brief period of time, 
or appropriate for preservation, because it did deal with the 
functions, policies, decisions, procedures, operations, or 
other activities of the government. So, I think it is very 
clear that the tape was a public record.
    Now, it is also a crime to destroy public records. Mr. 
Wholley, with your legal analysis of having these records 
destroyed, were you familiar with the litigation relative to 
Henry Kissinger's notes while he was at the State Department?
    Mr. Wholley. No, sir. I can't, I cannot own up to some 
familiarity with it.
    Mr. Sensenbrenner. Okay. Well, let me tell you what they 
said. First of all, in Reporters Committee for Freedom of the 
Press v. Vance, which was decided by the U.S. District Court 
for the District of Columbia, the notes that were made of 
Kissinger's conversations while at the State Department were 
federal records under the FRA. Then, that case went up, and 
there was other litigation, and it said the determinant factor 
for creating a federal record is whether the record was made at 
government expense, that is, with government materials and on 
government time. I think very clearly this tape was made at 
government expense, with government materials, and on 
government time.
    Have you ever been asked to give advice to anybody in NASA 
relative to what records can be destroyed, and if so, what was 
that?
    Mr. Wholley. No, sir. I can't say that I have been 
personally asked to give advice to anybody on that.
    Mr. Sensenbrenner. Well, isn't it your job, when an issue 
like this comes up, and you were personally involved in 
destroying at least the tapes that were in the NASA 
headquarters, that you should be concerned about what the law 
is on this subject?
    Mr. Wholley. Yes, sir.
    Mr. Sensenbrenner. Okay. Is it your belief that the tape, 
once it was made, was a government record?
    Mr. Wholley. No, sir.
    Mr. Sensenbrenner. Why not?
    Mr. Wholley. If--had it been--had that been my belief, sir, 
I would not have destroyed it.
    Mr. Sensenbrenner. Well, why not? I read the relevant 
portions of the law.
    Mr. Wholley. Yes, sir.
    Mr. Sensenbrenner. I read the determinant cases, when Mr. 
Kissinger claimed that his notes should be private, and not 
government record, you know, it isn't very hard to dig the 
cases out. Isn't that the job of a General Counsel to do that?
    Mr. Wholley. Yes, sir. It is.
    Mr. Sensenbrenner. Okay. Well, it wasn't done. Now, Mr. 
Morrell. You testified you didn't have anything to do with the 
destruction of the tapes, and did you speak to the technician, 
Mr. Berger, who made the tapes, after the teleconference?
    Mr. Morrell. The next morning, sir.
    Mr. Sensenbrenner. Okay. And after your conversation, did 
Mr. Berger erase his copy of the teleconference, and called 
NASA centers up, asking them to do the same?
    Mr. Morrell. I have heard that he had.
    Mr. Sensenbrenner. Okay. Did you ask him to do it?
    Mr. Morrell. I did not.
    Mr. Sensenbrenner. Okay.
    Mr. Morrell. It was my understanding that the recording had 
been made at headquarters.
    Mr. Sensenbrenner. Who is Keith Thomas Sefton?
    Mr. Morrell. He is Mr. Wholley's Deputy.
    Mr. Sensenbrenner. So, he is an attorney as well? Okay. 
Berger wrote, on an e-mail to Mr. Sefton, dated April 30, which 
was after the April 27 meeting: ``At 10:15 a.m. on Wednesday, 
April 11, 2007, I received a call from Paul Morrell. During 
that phone conversation, Paul asked me to contact my 
counterparts at the centers to find out if those who recorded 
the meeting still have the recordings, or if they could 
retrieve them. Paul wanted me to ask them to erase videotapes 
or shred DVDs of their recordings.'' And this was an e-mail 
from Fred Berger to Keith Sefton.
    Mr. Wholley, were you aware of that e-mail?
    Mr. Wholley. No, sir. Not at the time.
    Mr. Sensenbrenner. So, your deputy didn't tell you this?
    Mr. Wholley. Sir, to be honest with you, I was trying to 
stay away from--in fact, when--well, the answer is I can't 
remember when I learned of it, but you know----
    Mr. Sensenbrenner. What were you planning on staying away 
from?
    Mr. Wholley. I wanted to stay away from any involvement 
that, because I was involved in the destruction of tapes, I 
wanted to stay away from any involvement in talking to any of 
the witnesses. In fact, when the Committee asked for any e-
mails, or any documents, I turned my computer over to another 
attorney in the office, and said this is everything I have, 
just take what you believe is responsive.
    Mr. Sensenbrenner. And what--which attorney was that?
    Mr. Wholley. That was Ms. Donovan.
    Mr. Sensenbrenner. Now----
    Mr. Wholley. I believe she worked with her supervisor, Mr. 
Falcon.
    Mr. Sensenbrenner. Okay. And Mr. Morrell, I have read you 
this e-mail from Fred Berger, who was the technician that did 
the recording, to Keith Thomas Sefton, who works in Mr. 
Wholley's office.
    That is at variance with the testimony that you have given 
and the answer to my question. How can you explain that?
    Mr. Morrell. I can't explain it, sir. All I know is I asked 
where it was recorded. He said he recorded it at headquarters. 
He said that it had been given to Public Affairs, and I asked 
him to get it back. Never any----
    Mr. Sensenbrenner. I would repeat what is in the--part of 
the mail: ``Paul wanted me to ask them to erase videotapes or 
shred DVDs of their recordings.''
    Mr. Morrell. I did not do that. When I had all the copies 
that were at headquarters, Mr. Berger gave me the final copies, 
I asked him was this everything, and he said yes.
    Mr. Sensenbrenner. Okay.
    Mr. Morrell. And at that point, I knew I didn't know what 
needed to be done with them, so I took them to the General 
Counsel.
    Mr. Sensenbrenner. Okay. Thank you, Mr. Chairman. I have no 
further questions.
    Chairman Miller. Mr. Feeney.

                     More on the April 10th Meeting

    Mr. Feeney. Mr. Wholley, I think it was, at best, a foolish 
mistake to destroy the videotapes. I want to make that clear. 
But I also want to ask you some questions. Is it your 
understanding that as part of a decision-making process before 
a final conclusion or decision or report is issued, that notes 
and documents that are used, in terms of developing the final 
decision, are subject fully to the FRA?
    Mr. Wholley. I would have to look at that in context. I am 
not quite sure I have the entirety of your question. 
Predecisional stuff that----
    Mr. Feeney. Predecisional.
    Mr. Wholley. No.
    Mr. Feeney. And in the two letters that Mr. Griffin penned, 
the first letter, of March 14, he says that one of the purposes 
is to have an opportunity and ``to listen to any concerns that 
may exist amongst the staff, and to express my support for a 
strong and effective Office of Inspector General.'' In his 
subsequent letter to Clay Johnson, on March 29, he says that he 
wants to make it clear that he is ``committed to leading an 
agency where full and frank discussions are not just tolerated, 
but are expected, condoned, and encouraged.''
    And it seems to me, when I am trying to have that sort of 
conversation with my staff, that a video recording is the last 
thing I want to encourage those sorts of full and frank 
discussions. And so, do you share Mr. Morrell's opinion that 
this meeting should never have been taped in the first place, 
given the purposes that Mr. Griffin laid out in those two 
letters?
    Mr. Wholley. Yes, sir. I share that. As I recall, the 
conversation when he came in that morning, which was the 
morning of the 11th, with the copies that Public Affairs had 
made, as you could tell, his concern was that Public Affairs 
had no right to tape a meeting that was supposed to be a 
private, internal, closed meeting between the Administrator and 
the staff of the Inspector General. If I may, the first time I 
became aware, and this relates back to something Ms. Klemstine 
said, and the first time I became aware that there was an 
internal policy within the IG that their meetings are recorded, 
so other people can see them, was when I saw the IG's response 
back. I did not consider this an IG's meeting. It was an 
Administrator's meeting.
    Mr. Feeney. And you were in the meeting. Is----
    Mr. Wholley. Sir, I walked in with Mr. Morrell and Mr. 
Griffin, and Mr. Griffin walked immediately to the front of the 
room, faced the audience, and began talking.
    Mr. Feeney. Did you know that the meeting was being 
recorded at that point?
    Mr. Wholley. No, I did not. I know there were signs up. I 
was sitting, what would have been on the very far right of a 
semicircle, as Dr. Griffin looked, and Mr. Berger was in front 
of me. There may well have been signs. I was, I just did not 
see them.
    Mr. Feeney. Our last two witnesses, including Ms. 
Klemstine, said that it was clear to people that were viewing 
the monitor that the meeting was being recorded. That was my 
understanding of her testimony. Did you know that, Mr. Morrell?
    Mr. Morrell. Yes, there were signs.
    Mr. Feeney. There were signs, but Mr. Wholley, you didn't 
see the signs?
    Mr. Wholley. I didn't see them. I mean, frankly, I wasn't 
looking for them.
    Mr. Feeney. Well, one can only wonder, given the fact that 
there were concerns that Mr. Cobb was in the room, apparently. 
There were concerns about the tenor of Mr. Griffin's remarks. 
One can only--but nobody expressed them at that meeting. One 
can only wonder whether it was the video, as much as anything, 
that may have intimidated some of the people that had concerns 
that they expressed after the meeting, but not at the meeting.
    And so, again, I want to say that at best, it was a foolish 
decision, in my view, in retrospect, to destroy the tapes that 
should have not been made in the first place, but it seems to 
me clear that if I were having a meeting like this with my 
staff, video cameras on all of us would be the last thing that 
I would want to encourage full and frank discussions and 
concerns.
    And with that, I yield back the balance of my time.
    Chairman Miller. Thank you. Mr. Morrell, I also would like 
to encourage candor within your staff. You believe that it 
would inhibit, kill candid discussions within the staff to have 
it videotaped, but having a discussion of the findings of 
improprieties of the allegations of misconduct by the Inspector 
General Cobb, with their supervisor, Inspector Cobb, sitting 
right there, would not inhibit the discussion. That could be 
free, that could be open, that could be candid, with him 
sitting right there?
    Mr. Morrell. I didn't say that. I am sure that some people 
may have felt intimidated by having him there.
    Chairman Miller. All right. And do you think that inhibited 
conversation within that room?
    Mr. Morrell. Perhaps it did. It would be very possible, in 
fact.
    Chairman Miller. Very much sense that it would?
    Mr. Morrell. Perhaps some people would be inhibited to 
speak up. I think it--I mean, people did ask questions. I 
thought perhaps some people would have--there would have been 
more than what there was, but----
    Chairman Miller. Well, the Inspector, the guy they are 
talking about is sitting right there, beside Administrator 
Griffin. Is that right?
    Mr. Morrell. He was not beside the Administrator.
    Chairman Miller. He was in the room. Okay. And they were 
talking about him. And they were talking about allegations of 
misconduct by him.
    Mr. Morrell. Correct.
    Chairman Miller. And that, you thought, could be an 
uninhibited, free, candid discussion.
    Mr. Morrell. I didn't say--Mr. Chairman, I didn't say that. 
I can tell you that the Administrator felt that if he was going 
to be talking about the IG, the IG should be in the room.
    Chairman Miller. If you were concerned, Mr. Morrell, it 
strikes me if you were concerned about the candor in the room, 
and making people feel that they should have an uninhibited 
discussion, to say what was on their mind, that it was not the 
taping of it that inhibited that, it was having Mr. Cobb right 
there, and also, the tenor of what we understand Administrator 
Griffin said.
    Now, we don't have the tape to see what he said. We have 
still not been provided the written statement that you said 
that he used, but----
    Mr. Morrell. On the written statement, it was prepared from 
some talking points that we had prepared, and----
    Chairman Miller. And can we get those?
    Mr. Morrell. You should have them already.
    Chairman Miller. We do not.
    Mr. Morrell. I can get them to you, but they were provided, 
I believe, in the first set of documents that you requested.
    Chairman Miller. All right.
    Mr. Morrell. It is not a complete document. It is a partial 
document, of what he used.
    Chairman Miller. All right. Mr. Morrell, Mr. Wholley wrote 
you an e-mail on March 14, which we have been provided, about 
this proposed meeting. The proposal in the letter to Clay 
Johnson that Mr. Griffin would address the Inspector General 
staff. It is before you, as Exhibit 10. Do you have it?
    Mr. Morrell. Yes, sir.
    Chairman Miller. All right. Do you recognize that e-mail?
    Mr. Morrell. I do.
    Chairman Miller. Okay. Can you read it through the warning 
that you not disclose it beyond the Congressional Committee?
    Mr. Morrell. I can probably get through it.
    Chairman Miller. Okay. I would like to read from it: 
``Paul, I wasn't very articulate in our discussion last night 
and I apologize. Truth is, I am very troubled by the proffered 
``addition'' to the letter,'' ``to call a ``special meeting'' 
of the IG staff and not be prepared to back Moose,'' that is 
the Inspector General Cobb, ``in a strong way would undercut 
Moose, grant more credibility to the complaints, and the 
investigation than warranted, and be, I believe, 
counterproductive. On the other hand, to call a special meeting 
and praise Moose in front of the selected group,'' the IG 
staff, ``will risk Mike becoming the center of the 
controversy,'' Mr. Griffin, Administrator Griffin. ``As I said 
last night, I see no upside for Mike in the proposed course of 
action, and I do see a downside. I know that this is a not a 
legal matter, but I am concerned about how this will play out 
if the suggested course of action is adopted.''
    Do you remember getting that e-mail?
    Mr. Morrell. Yeah.
    Chairman Miller. Okay. Did I read that faithfully?
    Mr. Morrell. I believe so.
    Chairman Miller. All right. Do you recall the conversations 
that you had with Mr. Wholley?
    Mr. Morrell. Vaguely.
    Chairman Miller. Okay. Do you recall the e-mail?
    Mr. Morrell. Yes.
    Chairman Miller. Okay. Did you have the same concerns?
    Mr. Morrell. I raised this issue with the Administrator. He 
did not believe that he was going there to defend the IG or to 
criticize the IG, but to talk about facts, and it was something 
that he decided he wanted to do.
    Chairman Miller. Okay. Well, the concern, the reaction that 
the previous two witnesses, Mr. Winters and Ms. Klemstine, in 
particular, described, aren't those exactly the reactions that 
Mr. Wholley was concerned would result from such a meeting?
    Mr. Morrell. I believe so.
    Chairman Miller. All right. Did you share those concerns? 
Did you have the same concerns that Mr. Wholley had?
    Mr. Morrell. I don't believe at the time I did. I believed 
that the Administrator would go in, discuss facts----
    Chairman Miller. All right.
    Mr. Morrell.--what we was asked to do, what he decided to 
do, and what his expectations were for the Office, as he stated 
in his letter.
    Chairman Miller. All right. All the testimony today has 
been that there were signs everywhere. There were--let me not 
exaggerate. There were visible signs, readily visible signs, 
saying that the meeting was being taped. The two previous 
witnesses said that they noticed the signs. They assumed that 
they were being, the meeting was being taped. Did you notice 
those signs?
    Mr. Morrell. I did.
    Chairman Miller. All right. Why did you not say at the time 
to stop the taping of the meeting?
    Mr. Morrell. When I noticed that the Administrator was 
already speaking, Mr. Berger was at his console working, and I 
decided it wasn't appropriate to interrupt the meeting.
    Chairman Miller. I have abused my time again. Mr. 
Sensenbrenner.
    Mr. Sensenbrenner. I will yield the Chairman my time.

                  More on the Destruction of Documents

    Chairman Miller. All right. You had collected the DVDs. You 
took them to Mr. Wholley. Why did you take them to him? He said 
that you didn't specifically say destroy these. What did you 
say?
    Mr. Morrell. I believe what I told--I recapped what had 
happened, that I didn't ask--I asked that the meeting not be 
recorded, but Public Affairs had apparently put in a request. I 
thought it was inappropriate, didn't believe that Public 
Affairs had any authority or legitimate reason for doing so, 
that I collected them, take them from Public Affairs, and I had 
them, and I didn't know what to do with them.
    Chairman Miller. What did you expect Mr. Wholley would do 
with them?
    Mr. Morrell. Part of the reason I brought them to him was 
because they had maintained the records on the IG 
investigation, and I figured he would be, you know, he and his 
office would know what to do with them.
    Chairman Miller. Did you say that to Mr. Wholley, that 
because he was maintaining the other records pertaining to 
the----
    Mr. Morrell. No, what I asked him was what should I do with 
these?
    Chairman Miller. And he said leave them with me?
    Mr. Morrell. Yes.
    Chairman Miller. Did it not occur to you that he might 
infer from your conduct that you wanted them destroyed? I mean, 
it seems like you came powerfully close to saying, ``Will no 
one rid me of these troublesome DVDs, these meddlesome DVDs?''
    Mr. Morrell. No, sir. That was not my intent. I was never, 
it was never my intent to destroy anything.
    Chairman Miller. Did you ask Mr. Wholley if you could throw 
the tapes away?
    Mr. Morrell. No.
    Chairman Miller. Did you ask him if the tapes could be 
destroyed?
    Mr. Morrell. No.
    Chairman Miller. Did you ask him to research the law on 
what needed to become of the tapes?
    Mr. Morrell. I believe as I was leaving, he said he was, 
something to the effect that he would look into it, or 
something to that effect.
    Chairman Miller. Mr. Wholley, how many lawyers reported to 
you at that time?
    Mr. Wholley. In the Office of General Counsel?
    Chairman Miller. Yes, sir.
    Mr. Wholley. At headquarters, in the neighborhood of 35.
    Chairman Miller. And were there others in other places 
within NASA?
    Mr. Wholley. Yes, there are attorneys at all ten centers.
    Chairman Miller. And how many attorneys in all are there?
    Mr. Wholley. Approximately 152 at this time.
    Chairman Miller. 152 lawyers, and 35 are right there at 
your elbow.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. Did you ask any of them to research 
the law on your behalf?
    Mr. Wholley. No, sir.
    Chairman Miller. You did not give the research assignment 
to any lawyer?
    Mr. Wholley. No, sir.
    Chairman Miller. You looked at the books yourself?
    Mr. Wholley. Yes, sir.
    Chairman Miller. Generally, I applaud that in lawyers. It 
doesn't happen often. Do you have a background in FOIA or 
records, or records law? You said earlier you are not familiar 
with the case law that Mr. Sensenbrenner referred to. Is that 
an area that has been an area of specialty for you, or 
concentration?
    Mr. Wholley. Certainly not a specialty, sir. In terms of my 
past time serving as the Staff Judge Advocate of various 
commands and serving at headquarters.
    Chairman Miller. Were there lawyers within the 160, however 
many who reported to you, who did have that as an area of their 
concentration?
    Mr. Wholley. Yes, sir. That would be the General Law 
Section.
    Chairman Miller. The General Law Section, but you did not 
inquire of anyone in the General Law Section?
    Mr. Wholley. I did not.
    Chairman Miller. Why did you not?
    Mr. Wholley. Well, I guess one reason, it was a very 
sensitive matter. As my attorneys will tell you, I do a lot of 
my own research. Even after they present a product, although it 
is not a question of not trusting them. I am, as you may have 
gotten from my statement, I am a show me the data, look at the 
law. I looked at exactly what Ranking Member Sensenbrenner 
said, `44 U.S.C. sec. 44.' I looked at the FOIA. And sir, as I 
mentioned in my written remarks, I didn't start on this right 
away. It was some time later that day. There were other things 
going on. It was some time later that day. From my perspective, 
these were recordings that were made by the Public Affairs 
Office, of a private, closed meeting of the Administrator. They 
should not have been made.
    Chairman Miller. All right. Mr. Wholley, Mr. Morrell 
discussed the e-mail that you sent him before the meeting, that 
I read aloud. Do you recall that e-mail? Do you recall your 
conversations about your concern about how it looked?
    Mr. Wholley. I don't recall the conversation from the night 
before. I do recall the e-mail.
    Chairman Miller. Okay. So you expressed a concern in the e-
mail about how it would all look one way or the other.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. And so, you were present at the 
meeting, correct?
    Mr. Wholley. Yes, sir. I was.
    Chairman Miller. Okay. Were you aware then of the concerns 
that Ms. Klemstine expressed, and Mr. Winters expressed, that 
the staff members felt about what was said at the meeting?
    Mr. Wholley. No, I was not aware then, sir, and it is----
    Chairman Miller. Well, hearing what happened at the 
meeting, did you have any of those concerns yourself?
    Mr. Wholley. No.
    Chairman Miller. But you did know that there was a very 
strong potential problem one way or the other, of this meeting 
not looking good, of--either if Administrator Griffin said 
Moose Cobb is my boy, or if he criticized Moose Cobb to his own 
employees?
    Mr. Wholley. Yes, sir. I had concerns.
    Chairman Miller. Okay.
    Mr. Wholley. They were expressed in the e-mail.
    Chairman Miller. And you knew at the time that this was a 
subject, at that point, Senator Nelson, Chairman Bart Gordon, 
and I had all urged the President to fire Moose Cobb. You knew 
that, did you not?
    Mr. Wholley. I am trying to put, I believe your letter was, 
that particular letter was early April, April 3, perhaps.
    Chairman Miller. April 2.
    Mr. Wholley. Second.
    Chairman Miller. But that was before the meeting.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. It was before the tapes were 
destroyed.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. You knew that how this whole matter 
was being handled was something that the oversight committees 
of Congress were interested in, did you not?
    Mr. Wholley. I knew they were interested in the matter, 
yes, sir.
    Chairman Miller. Okay. And you knew, you said that you did 
not want this to subject to FOIA if you kept it. Isn't that 
right?
    Mr. Wholley. That is what I said, sir. If, but as I, that 
is only half of what I said. I said I did not believe they were 
agency records, but if we retained them, they would become 
agency records. From my perspective, we had five copies that 
Public Affairs had made of a closed meeting between the 
Administrator and the IG staff, that was not only not 
authorized, but was specifically said not to be recorded.
    Mr. Sensenbrenner. Will the Chairman yield?
    Chairman Miller. The Chairman happily yields.
    Mr. Sensenbrenner. In what part of the Federal Records Act 
is it intended to encourage agencies to destroy records 
promptly so that they won't become records? Is there any clause 
in that? I haven't been able to find it.
    Mr. Wholley. Sir, I have never looked for that clause, nor 
have I been able to find it.
    Mr. Sensenbrenner. Well, it isn't there. I yield back to 
the Chairman.
    Chairman Miller. Thank you, Mr. Sensenbrenner.
    Mr. Wholley, you are also a lawyer, and the General Counsel 
of NASA. Are you familiar with the evidentiary concept of 
spoilation, s-p-o-i-l-a-t-i-o-n, spoilation?
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. And describe that concept for me.
    Mr. Wholley. Basically, inferences can be taken negative to 
the person who fails to provide certain evidence.
    Chairman Miller. And certainly, destroys it, knowing that 
that the documents are subject to, would be evidence in a 
pending litigation, or anticipated litigation, or an inquiry 
from Congress?
    Mr. Wholley. Yes, sir. May I continue?
    Chairman Miller. You may.
    Mr. Wholley. I don't know how to get that across any more 
clearly. At the time that I, having finished my research, which 
we now may say was not sufficient, at that time, I did not 
believe they were federal records. I did not believe Public 
Affairs should have copies. I did not believe there was any 
reason for these copies to exist and be filed, or they could 
become federal records, and possibly FOIA-able, and as perhaps 
impossible as this may seem, I did not consider, truly, I did 
not consider the political aspects of this.
    As I have said, nobody regrets more that I can't produce 
that particular DVD.
    Chairman Miller. And you are aware that now, there are 
employees of, you spoke of it, or you wrote of it in your 
written testimony, you did not get to it in your oral 
testimony, that there are employees of NASA who attended that 
meeting, who are now providing us with accounts of the meeting 
that you described as patently ridiculous, outrageous----
    Mr. Wholley. Sir, your staff informed me of several 
allegations that were patently ridiculous and outrageous.
    Chairman Miller. Knowing everything that you knew then, 
knowing that this meeting was in its very conception a problem, 
knowing that we were interested, Congress was interested, the 
oversight committees were interested in how NASA dealt with the 
PCIE recommendations, knowing that we would likely eventually 
ask for that DVD, if it still existed, why is there not every 
element of spoliation present, so we should assume the worst?
    Mr. Wholley. Sir----
    Chairman Miller. Under ordinary rules of evidence.
    Mr. Wholley. I cannot stop you from assuming the worst, 
other than to say, sir, that there were 120 to 180 people in 
there, many of whom were NASA IG investigators. There was 
certainly no intent on my part to destroy evidence. Frankly, 
that just was not my intent. As I have stated to your staff, 
and as I will state here, what I did, I did in good faith. If 
it was a mistake that I made on the law, it is probably not the 
first one I have ever made, nor will it, unfortunately, be the 
last. But it was an honest mistake, and I deeply regret that I 
destroyed them, for the reason that we are now here debating 
this.
    Chairman Miller. Okay. Is it your practice to destroy other 
federal property?
    Mr. Wholley. No, sir.
    Chairman Miller. Have you done it on any other occasion?
    Mr. Wholley. Not that I can consciously recall, sir.
    Chairman Miller. All right. And how did you do it in this 
case? Exactly how did you destroy those DVDs?
    Mr. Wholley. Broke them in half, threw them in the trash.
    Chairman Miller. Mr. Sensenbrenner.
    Mr. Sensenbrenner. I have no further questions.
    Chairman Miller. Mr. Wholley, in addition to your e-mail to 
Mr. Morrell, you sent an e-mail to Jeff Rosen, the counsel at 
OMB for Clay Johnson.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Dated April 4, 2007.
    Mr. Wholley. I do not recall that particular e-mail, sir.
    Chairman Miller. Okay. It is in the evidence book as 
Exhibit 18-B, the exhibit book.
    Mr. Wholley. Sir, my #18 is----
    Chairman Miller. 18-B.
    Mr. Wholley.--the bullet points from----
    Chairman Miller. 18-B. 18-B.
    Mr. Wholley. Yes, sir.
    Chairman Miller. All right. The subject line is Hearings 
with two question marks.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. Now, that was two days after Senator 
Nelson, Chairman Gordon, and I called on Mr. Cobb, called on 
President Bush to fire Mr. Cobb.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. And in the e-mail, you, of course, 
point out the subject of the Cobb case, and you wrote that the 
Cobb case ``continues to spin up to ``escape velocity,'''' and 
``the reason for this e-mail is to arrange a meeting between 
the two us, and anyone else you care to bring from your staff 
who has been involved in vetting this investigation, before 
there is any hearing, so that we can soberly consider the 
approach to be taken.'' ``I am sure that you can appreciate 
that I am not particularly keen on seeing two entities of the 
Executive Branch at odds in a hearing before the Legislative 
Branch.''
    So, you were aware that this would likely be the subject of 
Congressional hearings.
    Mr. Wholley. No, sir. I cannot say I was aware that it was 
likely.
    Chairman Miller. It was possible.
    Mr. Wholley. Possible, yes, sir.
    Chairman Miller. All right. If it was likely, there just 
would have been one question mark. Possible was two question 
marks.
    So, you were certainly very, very aware of the Congress' 
interest in this, this committee's interest in this, and you 
were getting together with OMB to kind of get on the same page?
    Mr. Wholley. No, sir. My concern, which I had expressed as, 
since you have all my e-mails, you know, my concern was that 
the, concerning the disconnect between the Executive Order, the 
Integrity Committee policies and procedures, and what had 
actually been produced and what transpired. That was my 
concern, not the hearing, sir. I mean, you called a hearing. I 
have given you everything that I have on my computer that my 
counsels, that my attorneys believe was relevant. I am here to 
answer any question you have. My concern was about the way the 
Executive Order and the policies and procedures were not 
properly interfacing in the way that the investigation came to 
us.
    Chairman Miller. All right. I am sorry. ``I am sure that 
you can appreciate that I am not particularly keen on seeing 
two entities of the Executive Branch at odds in a hearing 
before the Legislative Branch.''
    Mr. Wholley. Yes, sir.
    Chairman Miller. What was it you were concerned that OMB 
and NASA might be at odds about?
    Mr. Wholley. It wasn't so much OMB, sir. It was the 
Integrity Committee and the PCIE. And it is not OMB. I was 
talking to Jeff Rosen, Mr. Rosen, in his capacity as the 
Counsel to Clay Johnson, Chairman of the PCIE. He was well 
aware, as were others, of my concerns about the Executive Order 
and the policies and procedures, and how they were or were not 
interfacing properly.
    Chairman Miller. All right. Mr. Wholley, could you describe 
what your role was in the response by Administrator Griffin to 
the findings of the PCIE, the report of the PCIE?
    Mr. Wholley. I was given the package, sir. I was given the 
package by Mr. Morrell, as I said on, my e-mails reveal it was 
the 26th. I did review it. I turned it over to someone who knew 
nothing about it, a very experienced today, and asked for her 
unvarnished opinion on it.
    I had her brief Dr. Griffin. I was in the room. At the 
conclusion of her brief, he asked me my thoughts. I explained 
that I was on all fours with her analysis, which had been done 
independently. We had previously or simultaneously given him 
the range of options. As you know, sir, he has no disciplinary 
options, which is why his letter talks in terms of with the 
concurrence of the Chairman of the PCIE.
    And that was my role, sir.
    Chairman Miller. All right. What was the standard that the 
attorney that you referred to used in her analysis? Was it one 
of criminal misconduct, or was it one of appearances?
    Mr. Wholley. I believe she would be better able to answer 
that, sir, but I do know that she had the policies and 
procedures, with the definitions therein. She had the Quality 
Standards for Inspectors General. She had the Executive Order. 
She had all of the, she had everything I had. And she had a 
number of years of experience.
    Chairman Miller. And--I am sorry.
    Mr. Wholley. I am sorry. I don't want to speculate. I was 
going to say I doubt she used criminal law standards, since any 
criminal law violation, I assume, would have been given to the 
Justice Department, and as you know, sir, the investigation 
specifically says there is no violation of law, rule, or 
regulation, gross misconduct, or gross waste of funds. They did 
say there was an abuse of authority in creating a hostile work 
environment.

                Mr. Wholley's Relationship With Mr. Cobb

    Chairman Miller. Just one more set of questions, Mr. 
Wholley.
    I know in your written statement, and perhaps in your oral 
statement as well, you said that you did not socialize, you do 
not visit with Mr. Cobb in his home. He did not visit in your 
home. You did talk whenever you saw each other.
    Did you have regular meetings with him to discuss matters 
before your Office or before his Office?
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. And how often was that?
    Mr. Wholley. Sir, I would say probably it would be rare 
that if I didn't see him once every couple of weeks.
    Chairman Miller. Okay. Did you----
    Mr. Wholley. Probably more. Weekly, ten days.
    Chairman Miller. Did you tell our staff that you met once a 
week from the time that you joined NASA?
    Mr. Wholley. Yes, sir. Initially, we did have weekly 
meetings, when----
    Chairman Miller. All right.
    Mr. Wholley. There were weekly meetings between the 
Administrator, that the parties that were supposed to be at the 
meeting were the Administrator, Deputy Administrator, Chief of 
Staff, Inspector General, and General Counsel. That had existed 
before I got there. More often than not, the Administrator 
wasn't there. It was the Deputy Chief, and this was prior to 
Dr. Griffin arriving.
    Chairman Miller. All right. And did the two of you compare 
notes on your discussions with our staff?
    Mr. Wholley. No, sir. Compare notes, sir?
    Chairman Miller. Well, that is a phrase. Did you talk with 
each other about the interviews?
    Mr. Wholley. I think we said something, but it was not, 
frankly, it was not what I would consider anything substantive.
    Chairman Miller. Okay. And you are familiar with all of the 
allegations, not just the summary report, but all of the 
allegations within the file of the PCIE matter, the Inspector 
General, began as an Inspector General's investigation by the 
Inspector General of HUD. Have you reviewed all of that?
    Mr. Wholley. Sir, I have reviewed what I was provided, what 
NASA was provided. I have reviewed that. I don't know if I have 
everything. I was, as I mentioned to your staff, I dealt with 
the pile of wood that was given to us.
    Chairman Miller. All right. In, well, allegation 43, in the 
Record of Investigation, again, it is an allegation, was that 
Mr. Cobb had improperly provided you information pertaining to 
criminal cases.
    Mr. Wholley. Yes, sir.
    Chairman Miller. You are familiar with that allegation.
    Mr. Wholley. Yes, sir.
    Chairman Miller. Okay. And you are familiar, you know that 
one of the principal concerns about Mr. Cobb's conduct at NASA 
was the inappropriateness of his relationship with Sean 
O'Keefe, and how close it appeared to be, rather than an arm's 
length independence.
    Mr. Wholley. Yes, sir. And again, I believe Mr. O'Keefe 
left in February of 2005.
    Chairman Miller. All right. Did you seek advice from Mr. 
Cobb on how to manage your own staff, how to lead it, how to 
deal with challenges, or did he seek advice from you on those 
matters?
    Mr. Wholley. He did not seek advice from me, no sir.
    Chairman Miller. Did you discuss it?
    Mr. Wholley. We discussed leadership at times, sir.
    Chairman Miller. Okay. I have no further questions.
    Mr. Sensenbrenner. Neither do I.
    Chairman Miller. I thank both of you for appearing, and for 
your testimony, and I believe that Mr. Sensenbrenner and I have 
already discussed further action that we may take. Thank you.
    Mr. Wholley. Thank you, Chairman Miller and Mr. 
Sensenbrenner.
    [Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
                               Appendix:

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                   Additional Material for the Record







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