[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
DOCUMENT PRODUCTION STATUS UPDATE:
OPM, FBI AND GSA
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 27, 2019
__________
Serial No. 116-42
__________
Printed for the use of the Committee on Oversight and Reform
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Available on: http://www.govinfo.gov
http://www.oversight.house.gov or
http://www.docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-283 PDF WASHINGTON : 2019
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COMMITTEE ON OVERSIGHT AND REFORM
ELIJAH E. CUMMINGS, Maryland, Chairman
Carolyn B. Maloney, New York Jim Jordan, Ohio, Ranking Minority
Eleanor Holmes Norton, District of Member
Columbia Justin Amash, Michigan
Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts Virginia Foxx, North Carolina
Jim Cooper, Tennessee Thomas Massie, Kentucky
Gerald E. Connolly, Virginia Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California James Comer, Kentucky
Katie Hill, California Michael Cloud, Texas
Debbie Wasserman Schultz, Florida Bob Gibbs, Ohio
John P. Sarbanes, Maryland Ralph Norman, South Carolina
Peter Welch, Vermont Clay Higgins, Louisiana
Jackie Speier, California Chip Roy, Texas
Robin L. Kelly, Illinois Carol D. Miller, West Virginia
Mark DeSaulnier, California Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
David Rapallo, Staff Director
Wendy Ginsberg, Staff Director
Amy Stratton, Clerk
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
------
Subcommittee on Government Operations
Gerald E. Connolly, Virginia, Chairman
Eleanor Holmes Norton, District of Mark Meadows, North Carolina,
Columbia, Ranking Minority Member
John Sarbanes, Maryland Thomas Massie, Kentucky
Jackie Speier, California Jody Hice, Georgia
Brenda Lawrence, Michigan Glenn Grothman, Wisconsin
Stacey Plaskett, Virgin Islands James Comer, Kentucky
Ro Khanna, California Ralph Norman, South Carolina
Stephen Lynch, Massachsetts W. Gregory Steube, Florida
Jamie Raskin, Maryland
C O N T E N T S
----------
Page
Hearing held on June 27, 2019.................................... 1
Witness Testimony:
Mr. Stephen Billy, Deputy Chief of Staff, U.S. Office of
Personnel Management
Oral Statement................................................... 8
Mr. Robert Borden, Chief of Staff, General Services
Administration
Oral Statement................................................... 9
Ms. Jill C. Tyson, Assistant Director, Office of Congressional
Affairs, Federal Bureau of Investigation
Oral Statement................................................... 10
The written opening statements and written statements for
witnesses are available at: https://docs.house.gov.
Index of Documents
----------
The documents entered into the record during this hearing are
listed below and available at: https://docs.house.gov.
* QFR's: From Chairman Cummings to Jill C. Tyson, Assistant
Director, Office of Congressional Affairs, FBI
* QFR's: From Chairman Cummings to Robert Borden, Chief of
Staff, General Services Administration
DOCUMENT PRODUCTION STATUS UPDATE: OPM, FBI AND GSA
----------
Thursday, June 27, 2019
House of Representatives
Subcommittee on Government Operations
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:03 a.m., in
room 2154, Rayburn House Office Building, Hon. Gerald E.
Connolly (chairman of the subcommittee) presiding.
Present: Representatives Connolly, Raskin, Cummings,
Meadows, Hice, and Jordan.
Mr. Connolly. The subcommittee will come to order. Without
objection, the chair is authorized to declare a recess of the
committee at any time.
The subcommittee is convening a hearing on the document
production efforts on the Office of Personnel Management, the
Federal Bureau of Investigation, and the General Services
Administration in response to various committees' and
subcommittee document requests.
I now recognize myself for an opening statement.
I want to thank the witnesses for being here, although I
know there could be more comfortable hearings to attend. I
regret we need to have this hearing. We're here because OPM,
the FBI, and GSA have not substantially complied with the
committee's request for documents from several months ago.
We've witnessed a stunning lack of cooperation across the
administration in response to multiple congressional
investigations. For this committee to perform its important
constitutional oversight mission, we must have documents and
information requested from agencies and that, in turn, requires
cooperation.
When the committee or a subcommittee sends a request for
documents or a written response for answers, we expect
meaningful and timely compliance and not stall tactics and
obfuscation. It is because of a breakdown in that process, you
three are here today.
Today, we'll be asking each of you to justify your
respective agency's troublesome production track record and to
identify those hurdles preventing full compliance and to offer
tangible solutions so the committee can fulfill its
constitutionally mandated oversight duty.
This morning, we will examine the status of responses to
three committee and subcommittee investigations. First, the
committee is investigating the administration's plan to abolish
the Office of Personnel Management. We believe, on our side,
certainly, it's a reckless proposal that lacks merit,
justification, or a coherent rationale. Frankly, doubts have
been raised about it on a bipartisan basis.
The subcommittee has requested basic documents from OPM, an
agency that runs programs that serve our Federal Government's
2.7 million active employees, more than 2.5 million Federal
retirees, and more than 8 million family members who receive
healthcare benefits. We requested documents that any project
manager would have required for even a simple restructuring of
an organization. We asked for a legal analysis of the
administration's authority to eliminate OPM, a cost-benefit
analysis, and a timeline.
These aren't intrusive requests. We wanted to know whether
this would work and whether the administration had done its
homework such that it could persuade us as to the merits. We've
concluded it won't and they haven't. We've received next to
nothing in response to this straightforward document request,
and no information provided adequately demonstrates how this
plan would improve services to current Federal or former
Federal employees and their families.
If we've been unclear thus far, let me take the opportunity
to clarify that, from our point of view, this half-baked
proposal is going to be dead on arrival here in Capitol Hill.
The administration's intention to dismantle OPM is
reckless. OPM's acting director has reportedly boasted about,
quote, planning to play chicken with Congress, unquote, by
furloughing or taking hostage 150 employees of OPM if Congress
did not provide the administration with authority to eliminate
the agency by October 1.
This is not a game. These are real lives at stake. OPM's
blanket refusal to provide the information the committee has
requested is unacceptable. OPM offered additional records just
this week. It's ironic that the new records make reference to
the documents we've been asking for without providing them.
The latest documents convince us even more that the
administration is attempting an end run in order to eliminate
more than 130 years of merit-based nonpartisan civil service.
Second, the committee is investigating the abrupt decision
to abandon the long-term plan to move the FBI headquarters to a
suburban location and replace it with a more costly plan to
keep Pennsylvania Avenue location, demolish the existing J.
Edgar Hoover Building, and construct a new facility on the same
site. Now, in order to make that pivot, the administration had
to abandon some of the compelling criteria that had dominated
this RFP for well over eight years, and they included
consolidation of the work force, they included modernization
taking cognizance of 21st century forensics and DNA research,
and getting safe setbacks which cannot be achieved at the
current location, which has inherently urban setbacks that are
inherently insecure.
In February 2018, I wrote the GSA Inspector General and
requested that she investigate the GSA's decisionmaking role
and the role of the White House, if any, in influencing this
decision. In August 2018, the inspector general issued a report
that noted inaccuracies in the cost estimates presented to
Congress to the tune of more than a half a billion dollars, and
revealed that the President was personally participating in
discussions regarding this revised plan, and there are pictures
to prove it.
Yet despite all parties within the administration claiming
the FBI alone made the decision, the FBI has turned over just
1,300 pages in the last 3-1/2 months, and that includes a last-
minute production last night. I might add, in talking to the
FBI, I was assured that they have gone through and filtered 1.5
million documents. And when we had that conversation, we were
in possession of 490 of them. Some of them redacted; some of
them redundant.
While we can admire the production going on at the FBI,
we're not so sure we admire the responsiveness to this
committee's request. To say that Congress continues to have
questions about the abrupt and rushed reversal in the FBI's
years' long plan and that the change of heart involved direct
communications with the chief executive of the country is an
understatement.
Third, the committee is actively investigating the Federal
lease of the old post office building between GSA and the Trump
Organization. Because President Trump refused to completely
divest himself of his global web of business interests, he's
currently both the landlord and the tenant, technically, of
what is now called the Trump International Hotel.
To date, GSA has refused to turn over financial documents
relevant to the committee's investigation that would shed light
on any potential conflicts of interest or constitutional
concerns with respect to the emolument clause.
Finally, I want to address a troubling development across
several committee and subcommittee investigations. All three
agencies represented here today--OPM, GSA, and the FBI--have
suggested that they are withholding many documents because they
are draft documents regarding decisionmaking.
There's a problem. That decisionmaking is exactly the focus
of the committee and subcommittee's investigations. It's not a
new thing to this Congress. Whether it's the decision to
abolish a Federal agency that serves the Federal work force, a
multibillion dollar construction decision affecting thousands
of FBI staff and, frankly, the security and safety of the
country, or the decision to allow our President to serve as
both landlord and tenant of his own hotel, which is on
government-owned property, such decisionmaking documents are
critical to our examination and investigation.
Last week, as I said, the FBI Deputy Director David Bowdich
called me personally to discuss the agency's compliance or lack
thereof. And, as I said, while I thanked him for the outreach
and the 1.5 million documents he said that have been examined,
I did give him specific directions in terms of what would
satisfy the committee's inquiry and, unfortunately, those
conditions have not been met.
It's my hope that today's hearing will provide some answers
and prod our fellow Federal employees to cooperate with the
committee of jurisdiction so that we don't have to resort to
methods of compulsion.
And with that, I turn to my distinguished ranking member,
my friend, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman. Thank you for your
leadership.
I thank all of you for being here this morning. Candidly,
document production is something that I know a little bit
about, and I guess I've expressed more than a little
frustration with some document production. So let me just--
instead of doing prepared remarks, let me perhaps get into
where the chairman and I agree.
If any of you are here today to say that it's part of a
deliberative process that somehow Congress can't see the
documents, I would urge you strongly not to go there. You will
find the full force of both Republicans and Democrats coming
together to acknowledge that that is not a legitimate reason
for you to withhold documents.
Second, if you think that somehow the lack of giving
documents to this committee is serving a greater purpose, I
would assure you that it is not.
Ms. Tyson, you've been very helpful, and I want to just say
thank you for your help in trying to get through some of the
documents to address some of the concerns. And certainly, as
with regards to the FBI building, in working with Mr. Borden
and GSA, guys, let me just tell you, I don't agree that we
should be building the FBI building and tearing it down and
doing it there, and I can tell you that I have been vocal about
that. I think it's the wrong decision from a real estate
perspective. I think it's a wrong decision in terms of
efficiency.
That being said, it's not my call. What is my call is
understanding the parameters that went into that decision. I
can tell you, in talking to the administration at the highest
levels, they're agnostic on whether it gets built in D.C. or
Virginia or Maryland or wherever it needs to go. I think most
of this, from what I understand, Ms. Tyson, was more of an FBI
decision than it was an executive branch decision at 1600
Pennsylvania Avenue, and so keeping documents would allude to
nefarious purposes that don't exist.
And so the more that you can be transparent in that, I
think on the Democrat side, they will have a divided concern on
whether the FBI goes in D.C. or somewhere else, in Maryland or
Virginia. I'm not divided, and on our side, I think what you do
is keep a small footprint for the FBI headquarters to allow
them to work with DOJ and you move the majority of the FBI
folks to a more efficient location. That's my take, but again,
we have to have the documents to do that.
As it relates to the Trump Hotel and some of those
documents that are in the custody of GSA or others, guys, let
me just tell you, everybody would have had to have believed
that this President was going to get elected when he started
those negotiations, and nobody believed it. And so holding back
documents on potentially nefarious purposes for the Trump
Hotel, I mean, we were all celebrating the fact that the old
post office was going to be renovated and used for something
other than a food court and a museum. Everybody was applauding
that, including the Mayor of D.C., until the President became
the President.
So giving us documents that allow us to get to the bottom
of this and that they're not fully redacted is key.
From an OPM standpoint, here's one of the areas that I'm
very troubled. I don't agree with the decision to take the
security clearances and move them to DOD. I think I've been
very open about that.
Here's the problem. Congress voted for that, and now what
we've got is we've got a situation where, over the objection of
Mr. Connolly and I, they voted to move the security clearances
to DOD, now we're implementing that and we're coming up with
all kinds of problems.
I was very troubled at the IT capacity of OPM, and we have
got to do something, whether that's consolidation, whether
that's moving the GSA, but let me just tell you, we have a
Third World computing system for OPM. No wonder we got hacked,
and maybe we're not as vulnerable to hacks because we have a
Third World computing system, because all the hackers are on a
much more complicated system. So in going there, I just want to
say, thank you to the OPM folks for allowing me to really see
firsthand what is there.
We've got to find a solution, and this is not about
downsizing jobs or getting rid of jobs. In fact, I want the OPM
folks to know that that is very, very clear, from my
standpoint. We want to make sure that their jobs are protected.
At the same time, we cannot continue to do business the way
we're doing business from a computing standpoint at OPM, and so
I'm using that to say, the more documents that you give us in a
transparent fashion, even if you think that it gives the wrong
impression, it is better than the impression of us not getting
the documents believing that there are bad things that you're
keeping from us. Does that make sense?
And so as you have your testimony today, if you do not go
to the deliberative process and that we don't have a right to
it, because you will find a very unified pushback.
And with that, I will yield back.
Mr. Connolly. I thank my distinguished ranking member, and
also thank him, he is consistent, and I really want to thank
him and express my admiration.
I mean, look, whether it's a Democratic administration or a
Republican administration, all of us have a stake in the
integrity of a document request, and all of us need to be
consistent in insisting on compliance with those requests. What
we end up doing with it, that's a different matter. We may part
ways on some decisions, but----
Mr. Meadows. Do say.
Mr. Connolly [continuing]. but although, I would agree with
almost everything you said, both about the FBI and OPM. I mean,
no one's denying there's a problem, but how we get at the
solution, has to be examined, and that's really what we're
trying to do.
I see the distinguished chairman of the full committee is
here, and I want to give Mr. Cummings an opportunity to make
whatever statement he wishes to make with respect to the
subject.
Welcome, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. And I want
to commend you, Chairman Connolly, for holding this hearing,
and I want to commend Mr. Meadows, our ranking member, for--not
only for his statement that he just made, but for his spirit of
cooperation.
Under this administration, we're witnessing simply a
stunning lack of cooperation that is hampering multiple
congressional investigations, and appears to be a part of a
large scale coordinated pattern of obstruction. I do not say
that lightly. It is frustrating when you cannot get documents.
It hampers us in doing our job, and it literally takes away
power from the Congress of the United States of America. It
takes away our power, clear and simple.
The documents that we seek in the investigations we will
discuss today are documents that we would have received in
previous administrations, many of them without any redactions
and without a fight. Some of them are even the types of
documents that we did receive in the beginning of the Trump
administration before the President declared that he and his
administration were, and I quote, fighting all subpoenas.
Come on now. This is the United States of America. Fighting
all subpoenas? Congress has a constitutional duty. We have a
duty to conduct oversight over decisions that have been made in
the executive branch, especially regarding leases or contracts
that impact taxpayers. It is our job to ensure that these
decisions are being made in the most cost-effective and
efficient fashion without favoritism or abuse.
The committee is conducting two separate investigations
involving GSA. One of its role in the decision to cancel the
plan to move the FBI headquarters to a new site, suburban
campus, and the other of GSA's management of the lease for the
Trump Hotel in the District of Columbia.
My interest in these topics is not new and should not be a
surprise to GSA. I wrote my first letter on the Trump Hotel and
questions about a possible breach of the lease shortly after
the President was elected in the fall of 2016. Along with
several Members of Congress, I first wrote to Administrator
Emily Murphy, raising questions about the FBI headquarters
eight months ago. Eight months ago.
After becoming the committee chairman, Chairman Connolly,
in his great wisdom, and I and others sent new request letters
on these topics. One category of documents we have sought are
monthly reports that the Trump Organization is required to file
to GSA about the Trump Hotel in the District of Columbia.
At the beginning of the administration, we received those
reports, but then something worrisome happened. Without
explanation, GSA reversed course and just stopped producing
them. It is now two years later.
After Democrats were voted into the majority, we again
requested that these monthly financial reports be done, but
now, instead of producing these documents, GSA questioned the
committee, and I quote, legitimate legislative purpose, end of
quote. And I got to tell you, at some point--again, this is the
kind of language that becomes very frustrating, and the courts
have ruled on this very issue.
If that language sounds familiar, it is because it is the
same language and the same baseless line of obstruction that
the President's personal attorneys had been using to challenge
Congress' authority to conduct oversight in other areas. A
Federal district court has already rejected this argument
decisively. I mean it was an ace, slam dunk, airtight case. I
told my staff, I've been practicing law for 40 years, and I've
never seen a case this tight, in Missouri. And he wrote this,
he says, as long--and this is a quote: As long as Congress
investigates on a subject matter on which legislation could be
had, Congress acts as contemplated by Article I of the
Constitution, end of quote.
To our witnesses here today, as I close, any other
executive branch agency that may be watching, we want the
message to be abundantly clear and I have no doubt about it:
Congress must obtain the documents necessary to fulfill our
constitutional responsibilities. Stop obstructing us. Stop
blocking us from doing the job that the voters sent us here to
do and to do the job that we swore we would do. If you will not
provide those documents willfully, willingly, we will issue
subpoenas to compel them.
In closing, let me say this: Today's hearing is not the end
of the story. I appreciate that the agencies have made some
movement toward compliance in anticipation of today's hearing,
but what you have offered is simply not enough. You have not
committed to provide us with the unredacted documents that
actually explain your decisions.
And to Mr. Chairman and to Mr. Meadows, again, I thank you
for the cooperative spirit that we have on this subcommittee. I
got to tell you, when I listen to Meadows and I listen to
Connolly, they're bending over backward to work with you all,
but at some point, you know, you feel like you're getting
slapped in the face. I don't know how they feel, but that's how
I feel. And it's as if you're thumbing your nose at us, say, we
don't care. Well, we got to do better than that.
Last point. You know, a lot of times, people do things and
they assume--they'll say, oh, Congress, I did this. I sent you
a million pieces. Well, you're supposed to do that. I mean,
that's what you are paid to do. You don't get any brownie
points for doing what you're supposed to do. If any Member of
Congress--if our employees are not doing the things that
they're supposed to do, they're fired, period. And we have got
to get back to what is normal.
I know there are going to be debates, but as Mr. Meadows
said, don't throw stuff out there that just goes against court
decisions, I mean, things that you know is basically rope-a-
doping.
And with that, Mr. Chairman, I yield back.
Mr. Connolly. I thank the distinguished chairman, and thank
him very much for his guidance on the subject, because I think
it's a widely shared view, certainly on this subcommittee, as
expressed by my distinguished ranking member and myself.
I want to now turn to the testimony of our witnesses. We
have three witnesses: Mr. Stephen Billy, who's the deputy chief
of staff of the Office of Personnel Management; Jill Tyson,
who's the assistant director of the Office of congressional
Affairs for the Federal Bureau of Investigation; Robert Borden,
the chief of staff of the General Services Administration.
If the three of you would rise and raise your right hand;
it is the tradition of our committee to swear in witnesses.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Let the record show that all three answered in the
affirmative. And I thank you, and if you would be seated.
Without objection, your written statements will be entered
into the record in full, and we now are going to give you 5
minutes to summarize that testimony. And we'll begin with you,
Mr. Billy.
STATEMENT OF STEPHEN BILLY, DEPUTY CHIEF OF STAFF, U.S. OFFICE
OF PERSONNEL MANAGEMENT
Mr. Billy. Thank you, Mr. Chairman.
Chairman Connolly, Ranking Member Meadows, and members of
the subcommittee, thank you for the opportunity to discuss with
you today the administration's plan to modernize the
infrastructure that supports our merits-based civil service
system in the entire Federal work force.
I appear before you today just weeks after Acting Director
Margaret Weichert testified before this subcommittee. At that
hearing, the committee expressed the need for additional
information to help provide clarity behind the proposed reform.
In our effort to further accommodate the committee and be as
transparent as possible, OPM has redoubled their efforts and is
in the process of continuing to gather and provide additional
responsive documents to this committee.
The discussion during the recent hearing clarified that
broad and bipartisan agreement exists, that fundamental changes
are needed to ensure we are capable of meeting the
responsibility entrusted to us under the Civil Service Reform
Act of 1978 to promote an efficient civil service.
There's reason for optimism that now, possibly for the
first time in decades, Congress seems willing to acknowledge
root causes in a way that will further the ability of the
executive branch to manage the Federal personnel system and
advance merit system principles through improving hiring,
reskilling, performance management, and the processing of
retirement and healthcare benefits.
OPM is committed to working with the subcommittee in
providing you information. As the acting director expressed
last month, OPM leadership fully respects the oversight
function of Congress and this committee.
In line with Chairman Connolly's desire for a reset on the
OPM reorganization discussions, OPM is committed to continuing
to engage with members of the committee and committee staff. In
fact, the agency has already invited multiple Members of
Congress to visit our offices for a briefing on the OPM office
of the chief information officer and retirement operations, and
would look forward to having the Chairman and any other
interested members of the subcommittee participate in that
briefing.
Acting Director Weichert was pleased to host Ranking Member
Meadows just last week for this briefing, and his staff
conveyed to us that the visit really highlighted the
operational challenges facing OPM and they were highly
impressed by the commitment to service of OPM employees. OPM
leadership also holds this high regard for our employees.
OPM leadership shares that there's no substitute for seeing
firsthand the hard work of our Federal employees as they
overcome technological barriers to serve the American people,
and we see this briefing as a critical way to continue the
dialog between Congress and OPM.
Additionally, we are compiling thousands of pages of
information to share with the committee. While we must strive
to respect executive branch interests, we are also committed to
continuing to engage with the subcommittee members and staff to
provide information and receive constructive feedback on the
reorganization proposal.
As you are aware, the transfer of OPM background
investigations' functions and related staff and resources to
the Department of Defense derives from a congressional mandate.
This transfer will create a funding gap for OPM that compounds
existing structural challenges that the agency faces.
On June 13, OPM and DOD held a tollgate meeting to finalize
the DOD buyback of general services OPM would continue to
provide to support background investigation operations during
Fiscal Year 2020 after the transfer of those functions. That
same afternoon, OPM staff briefed staff of this subcommittee
and committees from appropriations and the Senate on those
deliberations. This is an example of our commitment to
transparency and engagement with Congress and what we will
continue to display moving forward.
Thank you for having me here today. OPM leadership is
heartened that Congress has acknowledged the fundamental issues
facing our agency, and we are optimistic that together we can
work toward solutions. I look forward to answering your
questions and continuing to engage with the committee as we
work together toward reforms that best serve the American
people.
Thank you, Chairman.
Mr. Connolly. Thank you, Mr. Billy.
I had the opportunity to go to a demonstration outside of
OPM earlier this week, and I'm sure it would come as a
reassuring message to know how committed leadership is to its
work force at OPM, because morale was pretty low.
Mr. Borden.
STATEMENT OF ROBERT BORDEN, CHIEF OF STAFF, U.S. GENERAL
SERVICES ADMINISTRATION
Mr. Borden. Chairman Connolly, Chairman Cummings, members
of the subcommittee, good morning, and thank you for the
opportunity to answer your questions about GSA's ongoing
efforts to assist the committee.
I joined GSA as its chief of staff in June of last year.
Before joining the agency, I spent 23 years working in the
House of Representatives, including eight at this committee.
Most of my career in the House----
Mr. Connolly. Mr. Borden, excuse me, but I think you also
worked for my predecessor, did you not?
Mr. Borden. Yes, sir.
Mr. Connolly. Yes.
Mr. Borden. Much of my career in the House was dedicated
to--and I'm glad his portrait is now hanging back there.
Mr. Connolly. Well, you can thank Mr. Cummings. It took a
Democrat to put the Republican chairman's pictures back on the
wall. Sorry.
Mr. Borden. Much of my career in the House was dedicated to
oversight and investigations. In addition to this committee, I
worked on significant investigations at the Education and Labor
Committee as well as two select investigative committees. I've
had the honor of serving two majority leaders as director of
oversight. I've also had firsthand experience conducting
oversight over four different administrations.
I believe no one has a greater respect for the value of
congressional oversight or this committee's role as the House's
principal investigator. Administrator Murphy, herself a former
congressional staffer, shares my respect.
In the last seven months, GSA has provided more than 34,000
pages of documents to Congress. We have created working groups
to coordinate our efforts to respond to each of your requests
and committed considerable resources to those efforts.
We have provided more than 17,000 pages of documents to
this committee regarding the revised FBI headquarters plan, and
nearly 16,000 pages of documents regarding the old post office
outlease. Finally, our staff have stayed in regular
communication with the committee, offering to focus production
efforts on your priorities, sharing our search terms, and at
your request, broadening the scope of document searches.
While I understand I am not here today because you are
satisfied with our efforts, I do hope my testimony will convey
the sincerity of our interests in complying with your requests.
We do want to work with you to accommodate the legislative
branch's oversight interests, while safeguarding the executive
branch's legitimate confidentiality interests.
I thank you for your time and look forward to your
questions.
Mr. Connolly. Thank you, Mr. Borden.
Ms. Tyson.
STATEMENT OF JILL C. TYSON, ASSISTANT DIRECTOR, OFFICE OF
CONGRESSIONAL AFFAIRS, ON BEHALF OF FEDERAL BUREAU OF
INVESTIGATION
Ms. Tyson. Good morning, Chairman Connolly, Chairman
Cummings, Ranking Member Meadows, and other members of the
committee. My name is Jill Tyson. I'm an assistant director of
the FBI. I oversee the Office of congressional Affairs and I
manage an outstanding team of special agents, professional
staff, and attorneys. I'm honored to be here today representing
the FBI's 37,000 dedicated men and women.
As a career DOJ employee, I've worked with many members of
this committee and also with your staff; however, this is a new
vantage point for me as it's my first time testifying. My
comfort zone is definitely sitting behind the witness.
I'm here today to discuss the FBI's significant ongoing
efforts to provide information to this committee regarding the
FBI headquarters project. We've taken a number of steps to
respond to the committee, including producing documents on a
rolling basis, providing a briefing by a subject matter expert,
and offering a second subject matter expert to brief the
committee. Before I get into the specifics of those efforts,
I'd like to briefly discuss the FBI's need for a new
headquarters facility.
The FBI appreciates the committee's interest in FBI
headquarters because, as you know, the building has been
deteriorating for some time. The FBI headquarters project
really began to take shape in 2013. The procurement was
canceled in July 2017, however, due to a lack of dedicated
appropriated funding. This gave the newly confirmed Director,
Christopher Wray, an opportunity to take a fresh look at the
project.
As Director Wray has said repeatedly, it is the FBI's
strong preference to remain at our current location at 935
Pennsylvania Avenue. This is in order to balance overall
mission requirements, including improved security, optimal
transportation options for FBI employees, close proximity to
our partners and public visitors, and a consolidation of the
FBI's national capitol region footprint.
Now turning to oversight. The FBI values the important role
of congressional oversight. As Director Wray and Attorney
General Barr have stated, the FBI and the Department of Justice
are committed to accommodating the committee's informational
needs. In every instance, we strive to provide Congress as much
information as possible. We must do so without compromising our
law enforcement and national security efforts as well as our
investigative and prosecutorial responsibilities.
We are committed to working in good faith to accommodate
this committee's legitimate oversight interests. We hope the
committee will in turn continue to engage in good faith with
the FBI and recognize the importance of our law enforcement and
confidentiality interests.
The FBI has found the committee's March 6 letter to present
some unique challenges, given its breadth and the multiagency,
multiyear complexity of the headquarters project itself. Due to
the nature of the search for FBI headquarters and renovation in
similar terms, our initial collection yielded an exceptionally
broad return. We are actively working through it and taking a
surgical approach based on what we believe the committee has
articulated it is seeking.
Consistent with longstanding and well-accepted
accommodations process, the FBI has already taken significant
steps to respond to the committee's request for information.
Those include: The FBI has surged resources. We have assigned
additional agents, attorneys, and professional staff to work on
the committee's requests and support the document review.
Second, the FBI has provided a briefing by a subject matter
expert. Third, the FBI has offered the committee an opportunity
to interview the most senior official who oversaw the FBI
headquarters project. And fourth, the FBI has produced
approximately 1,300 pages of relevant documents. These
documents include substantive agency communications,
information about relevant meetings, and documents pertaining
to the decision to demolish and rebuild the FBI headquarters.
We appreciate the committee's efforts, particularly in the
last week, to focus some aspects of its requests. In fact,
because of your input, FBI and GSA were able to make a large
production of dozens of reports yesterday totaling
approximately 800 pages. We believe these are directly
responsive to the committee's interests. Such input from the
committee will help us be more efficient in our processing of
documents and more targeted in the information that we produce
of interest to the committee. This is the type of collaboration
that the FBI welcomes and hopes the committee will continue.
In conclusion, the FBI and the Department of Justice
recognize that congressional oversight is an important part of
our system of government. We remain optimistic that by working
together cooperatively, we'll be able to satisfy the
committee's oversight interests. We can do this while
safeguarding the independence, integrity, and effectiveness of
the FBI's vital law enforcement and national security
responsibilities. I would be happy to answer the committee's
questions.
Thank you.
Mr. Connolly. Thank you.
I would just say, before I call on the distinguished
Chairman for his questioning, two points. One is, the use of
the word legitimate inquiry. One needs to be very careful. The
legislative branch will not be lectured by the executive branch
as to what constitutes a legitimate inquiry. That's our
business. We decide what's a legitimate inquiry, not you.
We will not be delimited by the executive branch in our
inquiries, and I will point out that court rulings uphold this.
I'll turn to my professor friend, Mr. Raskin, a little bit
later to confirm this, but every court that's ruled on this has
said it's an inherent function of the legislative branch and
it's up to them to decide the nature of an inquiry, not you.
And I don't know if that's what you meant, Ms. Tyson, in
the use of the word ``legitimate,'' and we'll get into that,
but I just want to assert that. And second, while I appreciate
your version of history in terms of the RFP for the FBI
headquarters, unfortunately for you, there's an eight-year
history that goes before Mr. Wray's decision or somebody's
decision to abruptly change the terms of reference and actually
pull the plug on what was about to be an award, and that has
more than our curiosity.
So we have different versions of history, and we'll
certainly explore that.
The chair now calls upon the distinguished chairman of the
full committee, my friend, Mr. Cummings from Maryland.
Mr. Cummings. Thank you very much, Mr. Chairman.
First of all, let me go back, Mr. Chairman, to what you
just said. I agree with you a million percent with regard to a
legitimate interest and what we investigate. We are blessed on
this committee to have broad jurisdiction, and as was stated in
Mazars, the Mazars case, I mean, we--they reiterated what you
just said. So I want to thank you for saying that.
Now, Ms. Tyson, this committee has asked the FBI to produce
documents that memorialize the administration's decision to
reverse the longstanding plan to move FBI headquarters to a
suburban location. We have been told that no final documents
exist.
Ms. Tyson, is that correct?
I can't hear you.
Ms. Tyson. Congressman, as you're aware, the FBI's in the
process of reviewing and processing and producing documents. I
can only speak to the 1,300 pages or so that we've produced
thus far.
Mr. Cummings. So are there really no formal decision
documents related to this project?
Ms. Tyson. I believe in the course of our production, sir,
you will find a number of documents that do, in fact, indicate
the direction and decisions of the FBI headquarters project.
Mr. Cummings. So if true, I find it highly troubling that a
decision, you know, relocating thousands of FBI staff and
costing billions of taxpayer dollars would be made without
significant paperwork explaining that decision. And, Ms. Tyson,
we've also requested all of the other documents relating to
these discussions and this decision.
Ms. Tyson, will you commit to provide that material to the
committee?
Ms. Tyson. Sir, again, we are absolutely committed to
pulling, reviewing, processing, and producing documents to the
committee.
Mr. Cummings. How many people are working on that
particularly production?
Ms. Tyson. Sir, we have multiple divisions working on it. I
believe there are at least three or four at this point. We also
surge resources in recent weeks in terms of taking agents,
professional staff, and attorneys off of other projects in
order to expedite the production.
Mr. Cummings. Yesterday, you provided drafts of a joint
presentation that was made to the Senate. This was a welcome
first step, but you did not produce the communications around
the presentations, as we have requested.
Now, Ms. Tyson and Mr. Borden, will you commit to providing
the communications related to the development of this
presentation soon?
Mr. Borden. Chairman Cummings, we've had discussions with
your staff regarding the email communications that surround
these draft reports that were put together, my understanding,
and I could be mistaken, but we'd asked for a date range of
those emails and haven't received that yet.
Mr. Cummings. I promise you, we will get them immediately
to you. So we get you that date range, you will work within
that date range to get us what we want?
Mr. Borden. We haven't put eyeballs on those emails yet, so
we don't see any reason why we wouldn't be able to turn them
over, but we do need to look at them first.
Mr. Cummings. We'll give you the date range.
Ms. Tyson and Mr. Borden, the committee is specifically
requesting your decisionmaking materials in draft and final. We
have worked with your staff to prioritize those of highest
interests and will continue to do so. These documents are key
to our investigation as we're trying to understand how the
decisions were made, what factors were considered, and who
influenced the decision.
Have your agencies decided not to provide the committee
with the documents, certain documents?
Ms. Tyson. No, sir, I've not received such instructions.
Mr. Cummings. Can you commit today to provide the committee
with these documents?
Ms. Tyson. As my colleague, Mr. Borden, said, we are in the
process of pulling and reviewing documents. I can't make a
blanket commitment without having seen the documents, but we
are certainly committed to working with the committee and
providing as much information as we can.
Mr. Cummings. I understand that many of the documents have
gotten stuck in an interagency group that has not decided to
produce the documents to us yet. How long have those
discussions been going on? What is taking so long? And why has
the decision not been made?
First of all, is there a spat in the interagency?
Go ahead, Mr. Borden.
Mr. Borden. I'm not aware of any disagreement between the
agencies. It does definitely draw out the time it takes to be
responsive when we have a lot of agencies to coordinate with,
but I'm not aware of any disagreement there, no, sir.
Mr. Cummings. You may go on.
Ms. Tyson. Likewise, Mr. Chairman, I'm not aware of any
disagreements. In fact, I think our agencies are working
exceptionally well. We've both surged resources and have great
lines of communication that are open as a part of this
production.
Mr. Cummings. Mr. Chairman, my last question.
Finally, Ms. Tyson, I understand that the FBI has agreed to
provide Mr. Richard Haley for a transcribed interview in mid-
July in response to our requests. We accept your offer and
thank you for agreeing to make him available; however, I want
to make one additional comment. Will you commit today to
producing Mr. Haley's documents before the interview?
It really works against us, it works against us when we get
documents after the interview.
Ms. Tyson. Yes, sir. I understand. I believe that we are
trying to process Mr. Haley's documents as quickly as possible.
We have been waiting for several weeks to get a date for his
interview, and I certainly appreciate that the committee is
going to be willing to do that with us.
Mr. Cummings. Very well.
Mr. Chairman, thank you so much for your courtesy.
Mr. Connolly. Absolutely. Thank you, Mr. Chairman.
The gentleman from Georgia, Mr. Hice.
Mr. Hice. Thank you very much, Mr. Chairman.
Mr. Billy, how many documents--I don't believe in your
opening statement that you gave a figure of how many documents
have been produced to the committee.
Mr. Billy. To date, I believe we've produced around 400.
We've got a few thousand more that we are finalizing the
production of to turn over to this committee.
Mr. Hice. What's taking so long?
Mr. Billy. So a lot of the documents, as the acting
director testified to a few weeks ago, are data and public
documents that stretch back decades that we used in our--you
know, to analyze the proposal. We're putting those together.
We're working to categorize them that would be most helpful the
way GAO is looking for them and this committee from the
chairman's request, and so--another piece of this is that we're
in ongoing process right now through our tollgate meetings, so
we don't have a defined set of documents that we're working
through.
Mr. Hice. How many people are working to get that job done?
Mr. Billy. We have multiple people from our general
counsel's office, congressional affairs office----
Mr. Hice. And multiple people, it doesn't take multiple
people to get 400 pages. That's not a whole lot of pages. It
sounds like there's a stall taking place.
Mr. Billy. Absolutely not, sir. We're committed to
providing information and compiling it and getting it to you as
quickly as----
Mr. Hice. Any idea of the 400 that have been submitted how
much, percentagewise, have been redacted?
Mr. Billy. Not off the top of my head, sir.
Mr. Connolly. Would my friend yield and----
Mr. Hice. Sure.
Mr. Connolly [continuing]. I'll freeze your time, because
you're making such a good point.
We have a total of 524 pages, almost none of them
responsive to the direct request we've made. 461 from OPM, 63
from OMB.
But to the point you just made, so we asked for, just tell
us, cite the legal authority that you say you have to go
forward. That's it. Redacted. The reference the legal authority
makes to the meeting they had on the rationale, also redacted.
Now, how the committee can do an inquiry as dispassionately
as possible for people to make up their own minds, when
that's--that's called responsive. That's part of that just
voluminous 400 pages that they broke sweats over to give us. I
think any reasonable Member of Congress can look at that and
realize----
Mr. Hice. We have a problem.
Mr. Connolly [continuing]. that we have a problem.
I thank the gentleman.
Mr. Hice. Thank you, Mr. Chairman.
And your point is right in line with what the concern is.
Mr. Billy, you're not doing your job. There is a stall. It does
not take multiple people to get 400 pages, particularly--or
500, whatever it is, particularly when those pages are filled
with redactions to questions that have no reason to be
redacted.
What is the legal basis for redacting basic answers to
questions?
Mr. Billy. So I'm not an attorney. I'm not able to talk to
the specific about that. I know that we are--our attorneys are
working to provide as much information as we can. There are
some things that, where the legal analysis hasn't been
completed, we don't have a legal analysis to provide at this
time.
Mr. Hice. Mr. Billy, that's totally unacceptable, your
answer, and we expect to get the information that we request.
Is that understood?
Mr. Billy. Yes, Congressman.
Mr. Hice. A couple of weeks ago, Acting Director Weichert
was here, and there was a bipartisan call for documents
relating to the OPM-GSA merger, specifically the legal analysis
for the merger. Do you have any idea when that analysis will be
provided to this committee?
Mr. Billy. So attorneys are working across the agencies
that are involved in this to finalize the legal authorities
that currently exist, and as soon as that is done, we will
provide that.
Mr. Hice. Do you have any idea when that will be done?
Mr. Billy. I don't have an exact timeline, no, sir.
Mr. Hice. Do you have an estimate?
Mr. Billy. We are hoping to have it as soon as they're
completed. The attorneys are working daily on this.
Mr. Hice. Mr. Billy, frankly, you seem quite ill-prepared
for answers to questions that you should anticipate would come
from this committee.
What about the $70 million funding gap? We discussed a
little bit of that where that money's going to come from.
Mr. Billy. So the $70 million is caused by the mandate from
Congress to transition NBIB operations to DOD. We have been
able to mitigate that number from $70 million down to $23
million. Just two weeks ago, we were in a tollgate meeting with
the Department of Defense where we were finalizing the buyback
numbers that would cement what our final funding gap would be
for next year. We left that tollgate meeting with those numbers
and came straight to the Hill to brief the committee staff from
this committee, the appropriations, and the Senate committee,
so that everybody knew, as soon as we had the information, what
that final funding gap would be.
I know that's information that this committee has asked
for, as have other committees, and as soon as we had it, we
brought it to this committee in an effort to continue
engagement and be as transparent as possible.
Mr. Hice. Mr. Borden, you've mentioned some 34,000
documents that have been submitted. Do you have any idea what,
percentagewise, has been redacted and what you have submitted?
Mr. Borden. I should know better. To be clear, 34,000 pages
of documents. I could probably get a document count for you as
well. It's a little--happy to do that if that's helpful.
I don't believe we've made significant redactions in what
we've produced to this committee.
Mr. Hice. Okay.
Mr. Borden. I'll double check and happy to get you a count
on how many redactions there are, but I think they've very
minimal, if any, at all.
Mr. Hice. Okay. My time's almost gone. Ms. Tyson, I just
want clarification. Was the decision from the FBI location 100
percent made within the FBI?
Ms. Tyson. Sir, although the decision-making predates my
tenure in the FBI, my understanding is that the decision was,
in fact, made by Director Wray, certainly in close consultation
with the Administrator of GSA.
Mr. Hice. So no outside opinions or thoughts or discussions
were taken into consideration?
Ms. Tyson. Sir, I believe, as the Director has said
repeatedly, that the decision was his.
Mr. Hice. Thank you.
Thank you, Mr. Chairman. I yield.
Mr. Connolly. Thank you, Mr. Hice. And thank you for your
commitment to, on a bipartisan basis, to the presentation of
documents and the need for unredacted documents.
The chair now calls upon the gentleman from Maryland, my
friend, Mr. Raskin.
Mr. Raskin. Mr. Chair, thank you for calling this urgently
important meeting. And I also want to salute Mr. Meadows and
Mr. Hice for their thoughtful comments and support for a broad
and robust congressional investigatory power and the central
importance of document production in the exercise of that
power.
I want to welcome all of our witnesses today, especially
Mr. Borden, who's a distinguished former student of mine, a
prized pupil from the late 20th century. And I can't tell you
his grades because of the privacy laws, Mr. Chairman, but maybe
another member in the committee will ask him for some more
document production on that.
Mr. Borden. It's for the best.
Mr. Connolly. If I can interrupt the distinguished
gentleman and freezing his time. The one thing Mr. Borden
didn't fess up to was that he was a former student of yours.
Mr. Raskin. I noted he gave a very detailed autobiography,
but he excluded that point. I don't want to compromise his
objectivity. We never agreed politically, but I always found
him to be intellectually very engaged and astute.
So, Mr. Chairman, you and the chairman of the full
committee and Mr. Meadows, I think, have made the central point
about these hearings, which is that Congress has a broad robust
and comprehensive power that's been recognized by the Supreme
Court and all the courts to investigate, and that is essential
to representative democracy.
I think it was James Madison who made the crucial point
when he said, those who mean to be their own Governors must arm
themselves with the power that knowledge gives. And that power
which belongs to the American people has been vested in the
Congress of the United States through the Constitution. We
exercise the power of the people to obtain knowledge about
whatever it is we want to legislate about. And so it is indeed
up to us to determine what we're going to legislate about, and
so it's up to us to determine what information we're going to
get. And that demonstrates the absolute importance of complete
compliance with the document requests of Congress.
Now, I want to tell you a story about our Constitution, and
I could proceed Socratically, Mr. Borden, if you want to answer
the questions or else I could do it as a little lecture, but
there are two provisions in the Constitution I want to focus
on.
One is the Foreign Emoluments Clause, which is in Article
I, section 9, clause 8, which simply says that everybody in
this room and everybody on the floor of Congress and the
President of the United States may not collect a present, an
emolument, which means a payment, an office or a title from a
king, a prince, a foreign government of any kind whatever, of
any kind whatever, without the consent of Congress, okay?
And we went for more than two centuries with anybody coming
close to creating a problem under the Foreign Emoluments
Clause. You know, there were Presidents who got saddles for
horses, there were Presidents who were given a Persian rug. All
of them came directly to Congress and said, can I keep this or
not? And Congress either said, yes, you can keep it, or no,
it's a little bit too value. Turn it over to the State
Department or make a deposit with the U.S. Treasury.
There's another clause called the Domestic Emoluments
Clause, which is Article II, section 1, clause 17, which says
that the President may not receive any emolument from the
United States or any of the states beyond his salary
compensation. And we can't increase the President's salary and
we can't decrease the President's salary, and he can't get a
dollar more from a Federal Government or agency.
Now, the story all changes with the Presidential election
of 2016 and the inauguration of President Trump, who made a
decision not to divest himself of any of his businesses and not
to put anything into a blind trust. And since then, there have
been reports that 24 different foreign governments have spent
money at different Trump enterprises--hotels, office tower,
golf courses, and so on.
In 2019 alone, 17 officials of foreign governments stayed
at the Trump Hotel just in Washington, DC, from 13 different
nations, including Eduardo Bolsonaro, a Brazilian Congressman
and the son of the Brazilian President Jair Bolsonaro. Also,
the engineer of Brexit and the leader of the British UK party,
Nigel Farage, and an official from the administration of
Filipino President Duterte. Kuwait, the Kuwaiti Embassy spent
between $50,000 and $60,000 there on a national day
celebration, and so on.
So the money is flowing in from foreign governments to the
Trump Hotel, and President Trump continues to collect money
from the Trump Hotel, as well as the office tower and the other
hotels.
Now, that hotel has a deal with the U.S. Government,
through the General Services Administration, for the old post
office building, which is Federal property, and they've got a
lease. In the lease is a provision which I hope is boilerplate.
It should be, if it's not, but I assume it is boilerplate,
which just says that no government official, no matter how high
U.S. Government or local in the District of Columbia, can
derive any value or benefit from the lease. That's an echo of
the constitutional prohibition on foreign and domestic
emoluments, and yet we know all of this money has been flowing
into the administration.
Mr. Borden, is it GSA's position that any of the
committee's requests about the lease with the Trump
Organization do not serve a legitimate legislative purpose?
Mr. Borden. No, sir.
Mr. Raskin. Well, why is the GSA making arguments, that are
also being advanced by the President's personal attorneys, that
we can't obtain information about a government lease, a very
valuable property which is controlled, owned by the U.S.
taxpayers, the old post office building?
Mr. Borden. Yes, sir. I believe we're talking about the
financial summaries and all the documents and so forth that are
produced to GSA under the lease. And the top line message I
want to leave with you on that is that there are no documents
that we're not willing to talk about producing to the committee
working through the accommodation process.
With regards to those financial documents, as in many of
our arrangements with our business partners, there's a
confidentiality provision, and the confidentiality provision
says that these documents aren't to be produced outside of GSA
without----
Mr. Raskin. It says they may not be turned over to the
United States Congress?
Mr. Connolly. I'm going to have to interrupt the gentleman.
You may finish, Mr. Borden.
Mr. Borden. It doesn't reference the Congress at all. It
does reference FOIA, and it's probably a weakness in that
provision that's not in there. What it does say is that, with
the consent of the tenant, we can do it or if it's required by
law. And we are trying to work through the process of figuring
out whether we can--and under what terms we can provide those
to the committee in reference to the legitimate legislative
purpose, when we sought the tenant's consent. That was a
question that was posed to us, and we were bringing it back to
the committee. It's not our place to answer for you. For this
committee, I know very well rule X, clause 4(c), I believe, is
quite broad and should be an easy question to answer.
Mr. Connolly. Right. Knowing of your history of this
committee, we would assume that your default is to give us
more, not less.
Mr. Borden. Yes, sir.
Mr. Connolly. Yes. That's what I thought.
Votes have been called. That is to say one vote has been
called with respect to the rule. There are about 10 minutes
left.
We have time, Mr. Meadows, if you want to----
Mr. Meadows. Yes, let me go ahead and go. And maybe----
Mr. Connolly. And then we will recess and return.
Mr. Meadows. All right.
So, Ms. Tyson, let me come to you. I think it would be
prudent for the FBI and maybe even Director Wray to come in and
meet with the chairman and a few others that are very
interested, I think would be the best word, in where we go with
this.
It is very clear to me, having talked with the President
directly, it is very clear with me in talking with a number of
people at the White House, that the FBI's location, whether it
be in D.C. or anywhere else, they're agnostic. All they want to
make sure is that Director Wray and some of the FBI agents can
work very closely with DOJ in the proximity.
If you would take the message back, if they're not tuning
in, that really revisiting this situation with Mr. Borden's
team and your team. I know that everybody feels like the
decision has been made. It's going to get more complicated than
that, I'm afraid.
But I want to take one thing off the table. If you can get
us as many documents as you can to be as transparent as
possible with my Democrat colleagues to assure them that the
President could care less on whether the location is there or
anywhere else, if you would personally go back and look for
those documents. And then if you get pushback from the Director
or from the Attorney General on giving those documents, will
you let this committee know if you're getting pushback on the--
delivering those types of documents?
Ms. Tyson. Yes, Congressman. Let me try to answer your
questions.
No. 1, I'll be happy to take the message back. No. 2, yes,
we're absolutely committed to getting the committee as many
documents as possible as quickly as possible.
I'll reiterate a request to the chairman that we've made
several times to your staff, which is the more that we can
narrow and focus the committee's request, the more
expeditiously we can provide those documents.
Mr. Meadows. So what they're looking for--and so I'll cut
to the chase. What they're looking for is anything that has--
they're going to keep their request broad, Ms. Tyson. What
they're really looking for is where there was undue influence
on the decision to move the headquarters. So I'm not going to
speak for the chairman, but I'm going to tell you, I bet that's
what he's looking for. So if you will focus that request on
that, I think the more you do that, the less pressure you'll
get from the chairman. Okay? And that's----
Mr. Connolly. Would my friend yield?
Mr. Meadows. Yes, sure.
Mr. Connolly. Not prejudice to his time.
I think he makes a really good point. Two things. One is,
aside from even suspicious thinking, and I freely confess we
have some of that, it is a complete puzzlement that the FBI
could, with a straight face, walk away from a rationale it had
been propounding for eight years. I've been to many, many
meetings and briefings. And I'm particularly struck by both the
consolidation abandonment argument and the urban setback
problem, which remains a problem in the current site.
And the second point, and then I'll shut up. I think
impliedly what my friend is saying is assume there's nothing
there, assume this is as innocent as a newborn babe. The more
FBI holds back on documents, the more it does a disservice to
the President, given the suspicious nature of this town. And so
maybe it's protecting FBI prerogatives, but it's not helping
the President.
And I restore my friend's time, and I thank him for
allowing my intervention.
Mr. Meadows. So, Ms. Tyson, without forcing you to answer.
So let me just say, the reason why they're broad is because--
not just because of you, because you have been very honest and
direct, and you have great credentials from someone I respect
very highly at DOJ.
And so in saying that, the reason why it's broad is because
we have--time and time again, we have witnesses that come in
here and they say, oh, you didn't ask for that, when they knew
full well that that's really what we were asking for. And so
that's why you get these broad requests. And so you're some--in
some ways, it's a function of the games that get played between
the executive branch and the legislative branch. And so I don't
see you getting that in there.
That being said, I don't tell the FBI how to do law
enforcement. And I think it would serve Director Wray well to
not tell this Member of Congress how to do real estate well.
You know, he's not a real estate guy. And I'm telling you, I
fundamentally so disagree with the decision that's made that--
and I'm trying to be--but it is wrong. It just is wrong. There
is no way it is efficient use of the taxpayers' dollars. Not to
say that you shouldn't have a presence there. I believe you're
going to have to have a presence there. But the majority of the
campus being outside the city will be cheaper. There's just no
way. And I know GSA has all these different studies. But when
you compare apples to apples, there's no way that it could be--
that it just would not be cheaper.
That being said, we want to balance that function. And so,
Mr. Borden, as you all look at that, the documents--I just want
to say, GSA has been pretty good on some of the document
requests. I will also say that you've got staffers that work
with you and that I trust. And yet they worked with me, they
didn't work with the chairman.
And so in doing that, we've really got to get to the bottom
of some of these documents as it relates specifically to the
Trump Hotel. It's a big deal for him, less so for me. And yet I
don't think--in fact, I know there's nothing to hide. So I
guess what I'm saying, help us get the documents so we can take
the political side of this out and start to make legislative
questions.
So, Mr. Billy, let me come to you at the end. Ms. Weichert
and I--I have high respect for her, and I believe she's trying
to do the very best for our Federal Government. In this
reorganization, while we may disagree on that, we do agree on
the fact that no Federal employee should be--it shouldn't be a
slippery slope when Federal employees having to worry about
their job. They have that commitment from the chairman, they
have that commitment from me.
Some of the lack of information that even in the re-org
that we had made--the day I'm at OPM--a headline come out
saying that we're furloughing people. And it caught me by
surprise. So I'm having a great visit at OPM. You were there
and some of your colleagues were there. And I come back to have
to answer reporters' questions about furloughing employees. It
embarrassed me because I felt like some of those OPM employees
may have thought that I knew about that, and I didn't. And yet
it's inconsistent with where I am philosophically.
So the more information, Mr. Billy, you can get us as it
relates to what you need, the better off we'll be. That make--
--
Mr. Billy. Absolutely, Congressman. We're going to work--
you know, we're redoubling our efforts to get the information
for you and the chairman on this.
Mr. Meadows. All right. And we may end up prioritizing some
stuff. And so as the chairman prioritizes it, just assume that
we're speaking from, you know, the same voice. Okay?
Mr. Billy. Absolutely.
Mr. Meadows. I thank you all for your testimony.
Mr. Connolly. I thank the gentleman.
We're going to have to go into recess because we have one
vote, procedural vote, and we will come back as soon as
possible.
If Mr. Raskin comes back before us, he is authorized to
take the chair and gavel us back into session.
We stand in recess.
[Recess.]
Mr. Raskin.
[Presiding.] Welcome back to the hearing.
I want to thank the witnesses for their patience. And I
will now recognize myself for a second round of questioning.
Let's see. I want to go back to the question of the
Domestic Emoluments Clause, Mr. Borden. We talked about the
Foreign Emoluments Clause, which was an attempt to guarantee
the undivided loyalty of the President and all Members of
Congress to the American people and not to foreign powers. And
that's why there was this absolute prohibition on payments of
any kind whatever coming from foreign governments.
And so that's why we're very concerned to get as much
information from the GSA about whatever you know and whatever
you can find out about foreign governments using the Trump
Hotel for business because of the President's continuing
business ownership interest in the Trump Hotel.
But the Domestic Emoluments Clause limits the President to
his salary in office. And we can't increase it, we can't reduce
it. But also it says that the President cannot receive any
other payments from the U.S. Government or from any of the
individual United States. And yet we have reports that the GSA
gave the hotel $534,000 in Federal credit for maintaining the
historic clock tour. Is that correct? Can I confirm that with
you?
Mr. Borden. I'd have to get an answer to you in writing on
that. I don't know the numbers. I know there is an arrangement
where they provide some services for the clock tower, like
cleaning services. But I'm speaking off of----
Mr. Raskin. Okay.
Mr. Borden [continuing]. dim memory on this. But I'll get
you an answer in writing.
Mr. Raskin. So without pinning you down right now--although
I would love the accurate information later. But without
pinning you right down on the number, you can confirm that the
GSA does have some arrangement in which it makes a payment to
the hotel for keeping up the clock tower which is on the
building?
Mr. Borden. I'm working off of dim memory here, so I will
get that answer to you in writing. But my recollection is there
was an arrangement where some services, like cleaning, are
provided to the clock tower.
Mr. Raskin. Gotcha.
Mr. Borden. And we're paying for that.
Mr. Raskin. And in the first few months of the Trump
administration, which is the only period in which we have any
detailed accurate information at all from the Federal
Government, taxpayers funded massive payments to the Trump
properties such as the Trump Hotel in D.C. The Department of
Defense spent $147,379.50 on Trump properties, including the
Trump Hotel in Washington. The Commerce Department spent almost
$4,000 primarily at the Trump Hotel in the first few months
alone. We don't know how much the Department of Commerce spent
after that period of time.
The American people have a right to know how much is being
spent there. And Congress, on behalf of the American people,
has a right to obtain this information because we have to
defend the integrity of the business practices of the
government.
NBC has reported that $56,000 has been spent by the
Department of Defense, the Department of Agriculture, and the
GSA itself at the hotel.
Does the GSA actually occupy rooms at the hotel for
business purposes?
Mr. Borden. I'd have to check on the facts on that. But we
often get tagged for spending that's not ours because it's
going through one of our programs like FedRooms----
Mr. Raskin. I see.
Mr. Borden [continuing]. and so forth. Just in general on
Federal employees staying at the hotel, as long as fits within
the per diem, there's no prohibition on that.
Mr. Raskin. Well, what legal authority or opinion are you
relying on at GSA for continuing to allow Federal agencies and
departments to spend money at the hotel or foreign governments
to spend money at the hotel?
Mr. Borden. I don't believe we have any authority over
other agencies or foreign governments where they choose to----
Mr. Raskin. No, no. I'm sorry. I meant legal authority in
the sense of what precedent or what opinion--what legal opinion
are you basing your acquiescence to these practices on?
Mr. Borden. I'm not aware of a provision in the lease
beyond the one that you mentioned in your previous statement
that we've already--sort of been discussed, you know. But the
agency has made a determination that the tenant is in
compliance with that provision.
Mr. Raskin. Wait. That provision says that no government
official can profit and benefit in any way from the hotel. Is
that not right?
Mr. Borden. I don't want to characterize what the provision
does or doesn't mean, but it was a legal opinion----
Mr. Raskin. Well, you discussed--can you read it to us? Do
you have it?
Mr. Borden. It might take me a few minutes to----
Mr. Raskin. Okay.
Mr. Borden. Actually, I don't even think I have that one in
my binder.
Mr. Raskin. Maybe I can have someone hand it to me.
But I understood it to be completely clear and unambiguous,
crystal clear, that neither an official of the U.S. Government,
an elected official of the U.S. Government, nor an elected
official in the District of Columbia could benefit in any way
from the lease. The GSA's position, I think during the Obama
Administration, was that this would prevent the President or
any other elected official from deriving profits from the
hotel. And that position apparently changed with the new
administration. Is that right?
Mr. Borden. To my knowledge, there wasn't any official GSA
position on that provision in the lease. The legal analysis
that was done on that provision in the lease, and as discussed
in the Inspector General's report, hinged on the admit to
language in that provision. So it was a distinction between a
continuing lease versus being entered into a lease, hence the
admit to language, I believe, in that provision.
I'm a lawyer by education, but I'm not serving as a lawyer
for the agency.
Mr. Raskin. I gotcha. Well, the inspector general of the
GSA raised profound questions about this. In other words, he
saw it as a prohibition on the President being able to collect
money from the Trump lease.
I mean, look, the commonsense perception of this is simply
that the President as President of the United States, who
oversees GSA, is acting as the landlord. But then on the other
side, the President is acting as the tenant, so--look, the
purpose of the Domestic Emoluments Clause was to say that the
President has one way to make money off of his tenure as
President, which is his salary. That's it. You're not going to
get extra money from the Defense Department and the Commerce
Department and the GSA and the State Department. And yet it
appears that we're violating that.
The purpose of the Foreign Emoluments Clause was to
guarantee the independence of the President so he would be
zealously devoted to the American people, not to the United
Arab Emirates or Saudi Arabia or Turkey or Azerbaijan or
somebody else who comes and decides to spend $50,000 or
$100,000 at the hotel.
So I guess what I'm troubled about is that we have a sense
of urgency about getting to the bottom of this. The chairman of
the committee sent on April 12, 2019, to Emily Murphy, the
administrator at GSA, a letter asking for a whole lot of stuff
that we haven't gotten back yet. For example, all documents
referring or relating to Mazars USA LLP related to the old post
office. Why? Because when the President acting as a businessman
made his deal for the old post office, Mazars had to present
all of the documents reflecting the financial condition of his
company and where he's getting his money from, who he's doing
his business with and so on. We want those documents, but we
haven't gotten them.
Do you know why those haven't been produced?
Mr. Borden. So you're referring to the documents that--
before the lease was initiated establishing sort of financial
wherewithal and so forth?
Mr. Raskin. Exactly.
Mr. Borden. We have that request from the committee. There
are also some confidentiality provisions regarding those
provisions, but we are willing to work with the committee and
see how we can accommodate that.
Mr. Raskin. Yes. I mean, you understand that when Congress
makes a request for documents from anybody in the country,
everybody's first instinct is to say, oh, we stamped it
confidential. We got a rubber stamp, one of those blue ones,
and we put it in the ink and then we stamped it confidential.
What does that mean to us? We're the Congress of the United
States. We're representing the American people. So everybody
has a duty to present documents and witnesses that are being
requested by Congress, unless there is a some kind of legal
immunity that's been recognized by the Supreme Court.
So I think that stamping a document confidential is beside
the point from the standpoint of our wanting to see it. This is
a lease that relates to the U.S. Government and it relates to
the Constitutional powers of Congress and it relates to
prohibitions on money going to the President of the United
States.
So, you know, I'm not detecting in your answer any
intention to give us this stuff. Is that right?
Mr. Borden. I think--I think that's wrong. The first thing
I want to say, just in general, about $55 billion in contracts
flow through GSA, and we have a lot of confidential financial
information where we make arrangements to protect that
information for our business partners, and that's one of the
reasons they're willing to do business with us.
However, we're not hiding behind this, and we are actively
working with the committee and working our way as we can
accommodate the committee's interest. And I would point out
the--it's been mentioned that--I believe some of the monthly
financial summaries had been produced earlier, and they showed
up in The New York Times shortly thereafter.
Mr. Raskin. Okay. Well, when you said you want to work with
the committee, what exactly does that mean? In other words,
that you do want to produce those financial documents or--I
mean, I guess what I'm saying is, where is the blockade?
Where's the blockage happening? Because GSA had no problem
turning over materials like that before, and now there's a
problem turning it over. And is it a problem in GSA? Is it a
problem at the White House? Is it a problem with--is it a
problem with Trump, the President? Is it a problem with Trump,
the businessman? Is it a problem with the Trump Hotel? Like,
where is the blockage coming from us obtaining the Mazars
document?
Mr. Borden. These are agency decisions, and we are trying
to treat them. And it's obviously a unique situation, but we're
trying to treat them the way we treat any other confidential
business documents that the agency holds.
And to answer your earlier question----
Mr. Raskin. Yes.
Mr. Borden [continuing]. which I don't think I got to is
it's--the accommodation process, which a number of cases have
referred to, is a process where the two coequal branches of
government work through, legitimate interests that they're both
trying to protect.
Mr. Raskin. Yes. I see it a little bit differently. We are
the lawmaking branch of government. We represent the people.
The President's job is to take care that the laws are
faithfully executed, not thwarted, not circumvented, not
violated.
And as the district court found in the Mazars case,
upholding this committee's power to obtain documents. If this
body has the power to impeach the President, which we do, we
have, by definition, all of the subsidiary power to get any
information that we need in order to investigate the President.
And I think that that--that logical syllogism is just
inescapable. The President doesn't have the power to impeach
Congress. We have the power to impeach the President. So we are
not coequal in that sense. We are the people's branch of
government. We are the lawmaking authority. We pass the laws.
The President's job is to take care that the laws are
faithfully executed.
So, you know, I wish there were some way we could break the
logjam, because, you know, I've seen this process, and I think
it's frustrating to members on both sides of the aisle where
people will come from an agency or department and say, well,
we're working on it, and so on. And then you don't hear
anything from them for 2 or three months. They get called back
and they say we're working on it. We're cooperating. And it
looks like a shell game to everybody else.
And so, you know, can you just tell me--this is going to be
my final question along this line. What is the legal authority
for GSA saying this is--that a government lease, a U.S.
Government lease for the taxpayers is confidential and the
representatives of the American people in the U.S. Congress
can't obtain access to it? Well, what's the legal authority for
that? Is there a Supreme Court case? Is there a D.C. Circuit
Court case? Is there a U.S. District Court case? Where is that
coming from?
Mr. Borden. Sir, we're not making a legal assertion about
these documents. We're, like I said, willing to work with the
committee and try to accommodate the interest. As you know,
there isn't Federal rules of oversight procedure. There's not a
third-party magistrate calling balls and strikes, you know. But
there's not--it's not something where you have motions and
assertions and so forth. We are a----
Mr. Raskin. All right. So you do advance no legal claim
that you've got an immunity from us obtaining that document?
Mr. Borden. I'm not sitting here advancing that. That would
be something for our lawyers to do.
Mr. Raskin. Okay. Well, but on behalf of the agency--I
mean, I thought you just said you're not making a legal
argument?
Mr. Borden. The point I was trying to make is that the
interaction between Congress, a committee of Congress, and
agencies of the--entities of the executive branch in this
accommodation process isn't taking place in a legal forum. It's
a negotiation between coequal branches of government.
Mr. Raskin. Okay. All right. Well, you know, I would love
to do whatever we can to sit down and go through the documents,
if you could give us a list of the documents that are----
Mr. Borden. One thing I would like to emphasize----
Mr. Raskin. Yes.
Mr. Borden [continuing]. is simply I'm not trying to not
answer your questions or just keep saying accommodation over
and over again, which I recognize that I have, that we are
sincerely interested in working through ways to provide these
documents to the committee. And we stay in regular
communication with the committee, and we know these are a
priority for you, and----
Mr. Raskin. Yes.
Mr. Borden. So that makes them a priority for us.
Mr. Raskin. I mean, I would just say, it is an absolute
constitutional imperative for us to do our jobs, having taken
an oath to uphold and defend the Constitution of the United
States. And we represent the people. And there are very serious
reports that are in the media that have come out in different
cases that the Domestic Emoluments Clause is being violated
frequently. The foreign government emoluments clause is being
violated on an almost daily basis.
We have an absolute responsibility to stop that if it's the
case. You hold Federal office in America, it's not a money-
making operation. America is a great country. If you want to go
out and make money, just go out and make money. But if you want
to be President of the United States, be President of the
United States. Your job is to collect your salary and do the
people's business, not your business. But our job is to make
sure that the Constitution is being respected, and the rule of
law.
I believe, based on what I've seen, which is not enough,
which is why we're here today, but I believe, based on what
I've seen, that the Trump Hotel and President Trump are in
violation of the lease and the provision, which says that no
elected official can be deriving any benefit from the lease,
the old post office lease, with the Trump Hotel. I believe the
President is in absolute and repeat violation of the foreign
government emoluments clause, which provides that the President
cannot collect a payment of any kind whatever from a prince, a
king, or a foreign government. And I think he's in violation of
the Domestic Emoluments Clause, which says that he's limited to
his salary and he can't be pocketing money from agencies and
Federal departments that spend money at the Trump Hotel or the
Trump office tower or Mar-a-Lago or all of these other places.
And what we're getting here, perhaps unsurprisingly but
certainly unfortunately, is a stonewalling of the committee.
So we are available 24/7. We will meet day, evening, night,
whatever we need to do to convince you that this is information
that we've got to get. And obviously, you know, we're in the
process where we have been rendering subpoenas. We've been
holding people in contempt. We know that President Trump
ordered everybody in the executive branch to stop cooperating
with congressional investigations. And I think what you saw
today was a bipartisan expression of frustration with that
attitude. There is nothing illegitimate about the
representatives of the people obtaining documents that go to
our constitutional duty.
Let me turn for a second to Mr. Billy. Apparently, you
testified--I just want to give you a chance to clear this up
quickly. You testified that you were not a lawyer, under oath.
According to the information the committee has, you do have a
JD. It's just that you have a JD but you're not a lawyer.
You've not taken the bar. Is that it or----
Mr. Billy. Correct.
Mr. Raskin. I gotcha. Okay.
So the--I want to go to the legal underpinnings for the
closure of OPM. And so let me come to you, Ms. Tyson, if I
could--or, no, Mr. Billy, I'll come to you.
How many formal legal opinions, which would all be
responsive to our request, did OPM create or use that assessed
the administration's authority to dismantle OPM?
Mr. Billy. So the administration's proposal is about
merging the mission of OPM and the mission of GSA, right, to
make sure we have a stable and sustainable platform to deliver
on those missions into the future. The legal analysis of what
statutory authorities exist today to enact parts of the
transaction are still undergoing.
Mr. Raskin. So are there no existing formal legal opinions
that you could hand to us that assessed the administration's
authority to engage in this reorganization, as you describe it?
Mr. Billy. I don't believe that there's any final documents
that, you know, are ongoing--part of ongoing analysis.
Mr. Raskin. Okay. Well, what was the legal analysis or
guidance of the administration's authority to order this
reorganization before the decision was made? In other words,
did you just not consider it a matter for the lawyers?
Mr. Billy. So the proposal came out at a high level in June
2018, right? And that put forward kind of the view of what we
believed as the possible, and we're continuing to now go
through a tollgate process, which is a Six Sigma process. It's
a best practice in the private sector for transformational
change of this kind. And as part of that, we address the legal
analysis.
And so that is one workstream within the tollgate process.
Additional workstreams include understanding what the impacts
to our customers and stakeholders would be, impacts to our work
force, how we can mitigate different things, how we can create
more efficiency and effectiveness and service delivery. And so
we----
Mr. Raskin. So those were all the policy considerations you
looked at. But why is the legal authority redacted in the
documents that OPM provided yesterday?
Can we put that back up on the screen? I just want
everybody to take a look at them.
So legal authority, that whole--that whole section is
redacted out, which is the one part you think it would be the
easiest to turn over because it's an interpretation of the law,
right? So can you tell us why the legal authority is redacted
in these documents that we received yesterday?
Mr. Billy. Yes. So it's an ongoing process. The legal
analysis is ongoing. And at this time, we don't have a final
analysis to share.
Mr. Raskin. Oh, okay. But why does that give you the
authority to redact that? In other words, you're saying that
the legal analysis might change or there might be more
information given, but why is that justification for blacking
out what the legal authority was when that memo was written?
Mr. Billy. So our acting director has instructed us to
provide as much information as we can to this committee, that
we fully respect the oversight authority of this committee and
want to continue working with you. Our attorneys are providing
us, you know, guidance right now as we're going through
interagency workings to determine what we're able to present
and when. We're not withholding anything, you know, at this
time. We're just going through the process of releasing it all.
Mr. Raskin. Gotcha.
All right. Mr. Billy, so if I'm reading the last several
responses correctly together, there was no detailed legal
analysis--or there was no legal analysis at all done of the
proposed merger before it was accomplished. In other words,
there was just an assumption that it was lawful. But how do you
know that OPM has not been the subject of an illegal scheme?
How do you know that you're not violating the law?
Mr. Billy. So we know that--as you said, there's an
assumption that some parts likely are able to be executed under
current statutory authority. We are going through that
analysis, and there are different authorities that could
potentially move different pieces, how they would affect people
versus resources. And so we are going through that full
analysis together with our inner agency partners in this. And
we provided a legislative proposal to this Congress to work
with us to engage in the legislative process, because we
believe it would be the most effective and efficient way to
carry out the entirety of the transformation that we critically
need for the agency to help us deliver on merit system
principles moving into the future.
Mr. Raskin. Okay. Well, look, in closing out this part of
the hearing, I just want to say that OPM made a very
significant decision, essentially, to dismantle itself or to
dissolve itself without first obtaining any formal opinion as
to the legality of this decision. And my first take on it,
having looked at some of the legal authorities, is that the
proposal is likely illegal.
The administration came up with a plan and never took care
to vet it or to assess its lawfulness. And there are obviously
dramatic implications for this. So we will have to, you know,
proceed there.
I would just say generally, and I'll offer Mr. Meadows a
chance to close if he has anything to say, but that I hope that
all of the witnesses heard a very strong bipartisan sense that
our ability to get documents is essential to our lawmaking
function. And we will never allow that to become a partisan
football. We are all committed that when Congress seeks
documents, it gets the documents, because the lawmaking
function is integral to what we do.
Mr. Meadows.
Mr. Meadows. Yes. So I would just agree with that. We just
need the documents. This is not my first request for documents.
When we were in the majority, Mr. Borden knows that I'm there.
And when we talk about--Ms. Tyson knows that. Mr. Billy, maybe
less so. But I can assure you that getting--and pages does not
equal quality.
And I guess what I would rather have is quality--I know
it's real good to come here and be able to say, well, we gave
you 30,000 documents or 30,000 pages. And I appreciate you
making the difference, Mr. Borden, because you know it all too
well. But enough said. I think you all have gotten the message.
Here's the only other thing I would say. For the people who
produce--that actually do your production, I would encourage
all three of you to check in with them, because sometimes they
act like they're making great progress, only to find out that
they're not making as much progress as they would indicate. Oh,
we're making great progress, and yet when you look at it,
it's--and so if you would just check with the people who do the
production, because I think some of that can be streamlined.
Listen, this is not your first rodeo for any of the three
of you. So if you'll just do that, I think we'll all be happy.
And I have nothing further to add, so I'll yield back.
Mr. Raskin. Mr. Meadows, thank you very much.
Thank all of you for coming. And we look forward to working
with you to complete the production process. Many thanks.
The meeting is adjourned.
[Whereupon, at 12:01 p.m., the subcommittee was adjourned.]
[all]