[Senate Hearing 117-513]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-513

                     SAFEGUARDING INSPECTOR GENERAL 
                        INDEPENDENCE AND INTEGRITY

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             FIRST SESSION

                               __________

                            OCTOBER 21, 2021

                               __________

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

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
47-980 PDF                    WASHINGTON : 2022                     
          
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
            Lena C. Chang, Director of Governmental Affairs
         Matthew T. Cornelius, Senior Professional Staff Member
                 Emily Manna, Professional Staff Member
                Pamela Thiessen, Minority Staff Director
    Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
           William H.W. McKenna, Minority Chief Investigator
              Loren Terry, Minority Investigative Counsel
                     Laura W. Kilbride, Chief Clerk
                     Thomas J. Spino, Hearing Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Peters...............................................     1
    Senator Portman..............................................     3
    Senator Carper...............................................    15
    Senator Johnson..............................................    18
    Senator Hassan...............................................    21
    Senator Lankford.............................................    23
    Senator Ossoff...............................................    26
    Senator Scott................................................    28
    Senator Padilla..............................................    31
    Senator Rosen................................................    33
Prepared statements:
    Senator Peters...............................................    41
    Senator Portman..............................................    43

                               WITNESSES
                       Thursday, October 21, 2021

Hon. Allison C. Lerner, Chair, Council of the Inspectors General 
  on Integrity and Efficiency, and Inspector General, National 
  Science Foundation.............................................     4
Hon. Kevin H. Winters, Chair, Integrity Committee of the Council 
  of the Inspectors General on Integrity and Efficiency, and 
  Inspector General, National Railroad Passenger Corporation 
  (commonly known as Amtrak).....................................     6
Hon. Michael E. Horowitz, Inspector General, Department of 
  Justice, and Chair, Pandemic Response Accountability Committee.     8

                     Alphabetical List of Witnesses

Horowitz, Hon. Michael E.:
    Testimony....................................................     8
    Prepared statement...........................................    59
Lerner, Hon. Allison C.:
    Testimony....................................................     4
    Prepared statement...........................................    45
Winters, Hon. Kevin H.:
    Testimony....................................................     6
    Prepared statement...........................................    53

                                APPENDIX

Additional statements for the Record:............................
NAAUSA statement.................................................    67
Responses to post-hearing questions for the Record:
    Ms. Lerner...................................................    69
    Mr. Winters..................................................    90
    Mr. Horowitz.................................................   239

 
       SAFEGUARDING INSPECTOR GENERAL INDEPENDENCE AND INTEGRITY

                              ----------                              


                       THURSDAY, OCTOBER 21, 2021

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:15 a.m., via 
Webex and in room SD-342, Dirksen Senate Office Building, Hon. 
Gary Peters, Chairman of the Committee, presiding.
    Present: Senators Peters, Carper, Hassan, Sinema, Rosen, 
Padilla, Ossoff, Portman, Johnson, Lankford, Romney, Scott, and 
Hawley.

            OPENING STATEMENT OF CHAIRMAN PETERS\1\

    Chairman Peters. The Committee will come to order.
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    \1\ The prepared statement of Senator Peters appear in the Appendix 
on page 41.
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    I want to first off thank each of our witnesses for being 
here today and for your service to our nation each and every 
day. You have extremely challenging jobs to ensure that 
government is working effectively and efficiently for the 
American people. I look forward to hearing from each of you on 
how this Committee can ensure the independence and the 
integrity of Inspectors General (IGs) as you continue this 
work.
    As current Federal watchdogs, your perspective will be 
critical in helping us finalize legislation that will provide 
you and your colleagues with protections to strengthen 
independent oversight of the government's effectiveness.
    This legislation is, quite frankly, long overdue. For 
decades, Inspectors General have acted as independent, 
nonpartisan watchdogs tasked with helping Congress prevent and 
uncover fraud, waste, and abuse in the Federal Government, and 
ensure taxpayer dollars are being used appropriately.
    The Council of the Inspectors General on Integrity and 
Efficiency's (CIGIE) recent annual report to Congress estimated 
that Inspectors General saved American taxpayers more than $50 
billion last year alone. It is absolutely vital that our 
Federal watchdogs are able to work independently and without 
the threat of political interference.
    Current law allows for actions that threaten to undermine 
this independence, including the removal of Inspectors General 
from office without sufficient explanation and the appointment 
of partisan political operatives to serve in these 
traditionally nonpartisan roles. These actions, and others, 
have left Inspectors General, and their critical work, 
vulnerable to political influence, and that is simply 
unacceptable.
    We must ensure that no administration is able to undercut 
the independent transparency and accountability that Inspectors 
General provide to the American people. That is why Ranking 
Member Portman and I are working together to enact the first 
significant reforms to support Inspectors General in more than 
13 years. I am proud our bipartisan, bicameral effort enjoys 
broad support from our colleagues and numerous good government 
groups.
    I am grateful to Senators Grassley and Hassan, as well as 
U.S. House Oversight Chairwoman Maloney, for helping us create 
these reforms, which will require a more detailed explanation 
from the President before removing an Inspector General, ensure 
that Acting Inspectors General are selected from a pool of 
senior-level employees within the watchdog community, and 
provide Federal watchdogs the authority to subpoena the 
testimony of contractors and former Federal officials.
    Through these common-sense solutions, this Committee has 
the opportunity to consider and advance historic, meaningful 
reforms that strengthen our democracy and promote independent 
oversight, a goal I know we all share.
    I look forward to discussing how we can best protect our 
Inspectors General and swiftly pass these urgently needed 
reforms.
    The Ranking Member is en route and will be here shortly, so 
I will swear in the witnesses now.
    It is the practice of this Committee to swear in witnesses, 
so if you will each rise and raise your right hand.
    Do you swear that the testimony you will give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Ms. Lerner. I do.
    Mr. Winters. I do.
    Mr. Horowitz. I do.
    Chairman Peters. You may be seated.
    Our first witness, Allison Lerner, is the Inspector General 
of the National Science Foundation (NSF) and Chair of the 
Council of the Inspectors General on Integrity and Efficiency. 
In her role, she recommends policies and leads efforts to 
prevent and detect fraud, waste, and abuse; improves the 
integrity of the National Science Foundation programs and 
operations; and investigates allegations of misconduct in 
science.
    Ms. Lerner has 30 years of Federal experience, initially 
starting her career in the Office of Inspector General (OIG) at 
Commerce as Assistant Counsel. In 2011, she was designated by 
President Obama as a member of the Government Accountability 
and Transparency (GAT) Board.
    Welcome, Ms. Lerner. But before we hear your opening 
comments I would like to recognize Ranking Member Portman for 
his opening comments.

            OPENING STATEMENT OF SENATOR PORTMAN\1\

    Senator Portman. Great. Thank you, Mr. Chairman, I 
appreciate your indulgence, and thank you for convening this 
hearing today.
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    \1\ The prepared statement of Senator Portman appears in the 
Appendix on page 43.
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    Inspectors General are essential to good government. I 
think everybody understands and agrees with that. Congress has 
a responsibility, of course, to conduct oversight of the 
Executive Branch, and that responsibility would be far more 
difficult without Inspectors General. They are inside the 
agencies they oversee. They have unique expertise in their 
agencies' programs and budgets. I really think they are 
Congress' first line of defense against waste, fraud, and abuse 
at those agencies.
    According to the Council of Inspectors General on Integrity 
and Efficiency--and we will hear from CIGIE today--in fiscal 
year (FY) 2020 alone, IGs' work resulted in potential savings 
totaling $53 billion. That is a lot of waste, fraud, and abuse. 
We ask IGs to undertake some of the most important and 
sensitive oversight work. For example, I intend to offer an 
amendment today to our IG legislation we will consider next 
week to require the appropriate IGs to review the 
Administration's Afghan vetting policy. This review would 
include multiple agencies, complex programs, and evolving 
information. I think IGs are the best place to do that. They 
are in the best position to conduct this type of nonpartisan 
expert review needed to understand an important issue.
    This Committee is responsible for protecting IG 
independence and providing them with the authorities to do that 
kind of important work. Since 1978, Congress has improved and 
reformed Inspector General authorities many times. This 
includes legislation to establish a total of 73 IGs across the 
Federal Government, bolster IGs' access to information and, of 
course, to protect whistleblowers. These reforms represent 
steps in the right direction, but we think more work is still 
needed.
    I requested today's hearing so the Committee can discuss 
this IG legislation Senator Peters and I plan to consider at 
next week's business meeting, and I want the Chairman to know I 
appreciate the fact that you have accommodated the request. I 
think this will be positive for our legislation and for a 
general discussion about the importance of IGs.
    As noted, we have three very important members of the IG 
community in front of us here today: the Department of Justice 
(DOJ) IG and former CIGIE Chair, Michael Horowitz, who all of 
us know; National Science Foundation IG and current CIGIE 
Chair, Alison Lerner; and Amtrak IG and CIGIE Integrity 
Committee (IC) Chair, Kevin Winners.
    To start, the legislation that we are going to be talking 
about provides much-needed protections for Inspector General 
independence. Many have worked on this, including Senator 
Grassley. We should notice his work. I will point out that the 
current law already requires the President to provide Congress 
the 30 days' notice before removing an IG. We do not change 
that. It does not increase the time period.
    It does, however, preserve the congressional intent and the 
interest in understanding why that IG was removed by requiring 
the President to provide a substantive rationale for removing 
an IG. Both President Obama and President Trump removed IGs and 
told Congress they had lost confidence in their removed IG. I 
do not think we should be satisfied with such a statement, no 
matter the party of the President.
    The legislation also remedies another problem that occurred 
during the Obama and Trump administrations by requiring that 
acting IGs be named from the Inspector General community. Both 
President Obama and President Trump named agency officials as 
acting IGs, raising questions about the independence of those 
IGs. An agency official cannot conduct independent oversight of 
his or her own agencies and actions. Putting an agency official 
in charge of its IG office also risks exposing whistleblowers 
and could show future reports of waste, fraud, and abuse.
    The legislation also provides testimonial subpoena 
authority for IGs. This will allow IGs to complete interviews 
of important witnesses, even if a person has resigned, to avoid 
participating in an investigation. Unfortunately, that has been 
a common occurrence within our system, according to IGs. 
Subpoena authority is a weighty responsibility, though, which 
is why I have worked with Senator Peters to ensure the bill 
does provide effective guardrails and effective reporting to 
Congress.
    Additionally, the bill incentivizes filling IG vacancies. 
Installing permanent IGs is important. They provide more 
independence and continuity than acting IGs. This May, I sent a 
letter to President Biden, with the Chairman, and many of this 
Committee's Members urging him to fill the 13 vacant Senate-
confirmed IG positions. I am pleased to see that the President 
has taken our advice seriously and nominated individuals to 
fill a number of those vacancies, but all those vacancies need 
to be filled.
    Finally, the legislation provides measures to improve 
oversight of the IGs themselves, such as requiring that CIGIE 
report to Congress when it becomes aware of a particularly 
serious problem at an IG office. I know all three of these 
distinguished witnesses have much to give us today in terms of 
their input. They have given us a lot of thought. They 
understand the need for these proposals for change. I thank 
each of them for their service and for taking the time to 
appear before us today and I look forward to your testimony.
    Chairman Peters. Thank you, Ranking Member Portman.
    Ms. Lerner, you may proceed with your opening comments.

TESTIMONY OF THE HONORABLE ALLISON C. LERNER,\1\ CHAIR, COUNCIL 
     OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY

    Ms. Lerner. Thank you. Chairman Peters, Ranking Member 
Portman, and distinguished Members of the Committee, thank you 
for inviting me to appear before you today in my role as 
Chairperson of the Council of in the Inspectors General on 
Integrity and Efficiency.
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    \1\ The prepared statement of Ms. Lerner appears in the Appendix on 
page 45.
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    Despite the tumult caused by the Coronavirus Disease 2019 
(COVID-19) pandemic, our community has remained focused on its 
vital mission: providing impartial and nonpartisan oversight 
and transparency into some of the most difficult problems 
facing the agencies we oversee. Altogether, our work in 2020, 
as has been noted, resulted in potential savings totaling 
approximately $53 billion, a $17 return on every dollar 
invested in IG oversight. For accomplishments like this to 
continue and expand, action is necessary.
    Each Congress, the CIGIE Legislation Committee presents the 
community's critical reform proposals to strengthen government 
oversight or resolve challenges that IGs face under current 
law. This session, our legislative priorities strongly focus on 
enhancing Inspector General independence, the institutional 
independence of OIGs, and enhancing OIG oversight. Today I want 
to highlight some of these initiatives, which are part of H.R. 
2662 IG Independence and Empowerment Act, and included in the 
Peters/Portman substitute amendment.
    First, as I noted, it is imperative that Congress take 
steps to protect the institutional independence of Inspectors 
General. To be effective, IGs have to be independent in both 
mind and appearance, and being independent is no less important 
for individuals temporarily serving as head of an OIG. The IG 
community urges Congress to amendment the Federal Vacancies 
Reform Act to prevent the appointment of an acting IG that 
calls into question the independence of the office.
    Currently, a President can fill a Presidentially appointed 
Senate-confirmed (PAS) IG vacancy with a political appointee or 
a senior official from the agency the IG oversees. Such 
appointments, which have occurred under both Democratic and 
Republican administrations, create actual and perceived 
conflicts of interest that undermine the IG's independence and 
stakeholders' confidence in its work; discharge whistleblowers 
from coming to the IG with evidence of fraud, waste, and abuse; 
and create a disincentive for the President to appoint a 
permanent IG.
    The proposed change would have the First Assistant of the 
Inspector General serve during a vacancy but allow the 
President to designate another IG or senior OIG official to 
fill the vacancy. This reform would provide an acting IG with 
the independence necessary to maintain the public's trust and 
widen the pool of professional oversight officials the 
President may direct to serve as an acting IG.
    This legislation, together with an additional provision 
requiring notification to Congress when an IG is placed on non-
duty status, will greatly improve IG independence. We 
appreciate that these safeguards are part of the Peters/Portman 
substitute amendment.
    Second, Congress must strengthen oversight tools available 
to OIGs. The IG community, with bipartisan support from this 
Committee since at least 2015, has long sought testimonial 
subpoena authority, an essential tool for IGs to be able to 
conduct comprehensive oversight. Because most IGs lack this 
authority, they cannot obtain potentially critical evidence 
related to alleged wrongdoing from certain individuals unless 
they voluntarily agree to be interviewed. The fact that we 
cannot require these interviews undermines our ability to 
complete investigations and hold individuals accountable for 
their misconduct, thereby diminishing the public's trust in 
government.
    We are committed to providing technical assistance to 
develop controls to ensure the effective and appropriate use of 
this new authority. We want to express our appreciation to 
Chairman Peters and Ranking Member Portman, as well as Senators 
Grassley and Hassan, for including this authority in the 
substitute amendment and otherwise working diligently with the 
IG community on this needed authority.
    Finally, we also support the Committee and Members' efforts 
to reform OIG semiannual reports by leveraging public 
information and resources such as oversight.gov, requiring OIG 
employees to be informed about their whistleblower rights and 
protections, making needed change to support CIGIE's Integrity 
Committee, and replacing the current indirect process for 
funding CIGIE with the direct authorization of an appropriation 
that affords transparency but does not require additional 
funding from taxpayers.
    In closing, I would like to thank all Members and staff of 
this Committee for your strong, bipartisan support for our 
community and for the seriousness with which you take our 
mission. I look forward to working closely with you all to 
ensure that Inspectors General continue to be empowered to 
provide the independent, nonpartisan oversight our agencies, 
Congress, and the American public so richly deserve.
    This concludes my statement, and I am happy to answer any 
questions.
    Chairman Peters. Thank you, Ms. Lerner.
    Our next witness is Kevin Winters, Inspector General of the 
National Railroad Passenger Corporation (AMTRAK) and Integrity 
Committee Chair, Council of the Inspectors General on Integrity 
and Efficiency.
    Mr. Winters brings a wealth of experience, formerly serving 
as a senior executive with National Aeronautics and Space 
Administration (NASA's) Office of Inspector General from 2005 
through 2015. As NASA's Assistant Inspector General for 
Investigations, his staff of special agents, investigative 
auditors, and computer forensic examiners focused on 
allegations of fraud, waste, and abuse affecting NASA's 
programs.
    Mr. Winters also served in the United States Marine Corps 
(USMC), eventually retiring as a Brigadier General. 
Subsequently, he held several domestic and overseas 
assignments, including duties as a prosecutor and defense 
counsel.
    Welcome, Mr. Winters, and thank you for your service.
    You may proceed with your opening remarks.

    TESTIMONY OF THE HONORABLE KEVIN H. WINTERS,\1\ CHAIR, 
   INTEGRITY COMMITTEE, COUNCIL OF THE INSPECTORS GENERAL ON 
                    INTEGRITY AND EFFICIENCY

    Mr. Winters. Thank you, Mr. Chairman, Ranking Member, and 
thank you for the opportunity to testify about the important 
work of CIGIE's Integrity Committee. As you mentioned, I 
currently serve as Amtrak's Inspector General, and I have been 
a member of the IG community for the past 15 years, to include, 
as you said, service at NASA, as the Assistant Inspector 
General for Investigations.
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    \1\ The prepared statement of Mr. Winters appear in the Appendix on 
page 53.
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    In 2019, the then-CIGIE chair, Michael Horowitz, appointed 
me to be an IC member. In 2020, the IC membership elected me to 
serve as the chairperson for a 2-year term.
    My testimony today will focus on three topics. First, an 
overview of the IC's mission and structure--IC is short for the 
Integrity Committee, by the way. Second, an insight into our 
workload, recognizing that we cannot discuss ongoing matters. 
Third, our challenges, which present opportunities for 
improvement.
    By law, IGs have daunting oversight responsibilities over 
agencies, programs, and operations. Amtrak's, for example, 
includes a 24/7 nationwide rail service to 46 States and three 
Canadian provinces and employs 17,000 people. As their IG, 
Congress entrusted me with tremendous oversight resources, such 
as powers to audit, to investigate, unfettered access to 
information, subpoena power, and law enforcement authority. 
These tremendous powers, by the way, are typical of IGs across 
the Federal IG community.
    To check this tremendous power, Congress, in my view, 
wisely established the Integrity Committee to ensure that 
senior IG officials, currently about 468 of them, perform their 
duties with integrity and apply the same standards of conduct 
and accountability to themselves as they apply it to the 
agencies that they audit and investigate. The IC's mission, 
therefore, is to receive, review, and refer for investigations 
allegations of wrongdoing made against an Inspector General or 
certain senior members of an IG's office.
    By statute, the Integrity Committee is composed of six 
members. Four are serving IGs. Two are Presidentially 
appointed. The other two are from designated Federal entities. 
There are two other voting members, a senior official from the 
Federal Bureau of Investigation (FBI) and the Director of the 
Office of Government Ethics, or designee, and there is a small 
CIGIE staff, primarily lawyers, to assist the Integrity 
Committee, and the Public Integrity Section of the Department 
of Justice also serves as a legal advisor.
    This self-policing of the IG community is a solemn 
responsibility that requires the Integrity Committee to be 
vigilant, independent, objective, nonpartisan, and 
appropriately transparent to maintain the trust of our key 
stakeholders, which are the public, Congress, whistleblowers 
and witnesses, and those within our investigative jurisdiction. 
While there is always room for improvement, the Integrity 
Committee and its support staff work diligently to uphold this 
serious responsibility.
    Fiscal year 2021 saw a dramatic jump in communications to 
the Integrity Committee. In 2020, for example, we received 
1,152. This year, 3,917. We also saw an increase in complexity 
and severity of the incoming complaints. We met 19 times in 
fiscal year 2021, opened 65 cases for review, which involved 30 
different agencies.
    We completed three investigations which were submitted then 
for appropriate action to appointed authorities and relevant 
congressional committees. We also initiated four 
investigations. As of this hearing, the IC has nine 
investigations pending completion.
    As someone who has spent my professional life in service to 
our country, both in peace and war, I recognize how fortunate 
we are to have a system of government built on adherence to the 
rule of law and with checks and balances, which includes 
independent Inspectors General who help ensure the 
effectiveness of their agencies.
    I support H.R. 2662. I am thankful for your interest in the 
efforts of the Integrity Committee to serve as a credible and 
trusted check on the tremendous powers entrusted to senior 
members of the IG community, and I look forward to your 
questions, recognizing, of course, that we cannot discuss 
ongoing and open matters. Thank you.
    Chairman Peters. Thank you, Mr. Winters.
    Our final witness is Michael Horowitz, Inspector General 
for the Department of Justice. In his role, Mr. Horowitz 
oversees a nationwide workforce of more than 500 special 
agents, auditors, inspectors, attorneys, and support staff, 
whose mission is to detect and deter waste, fraud, and abuse. 
He also serves as the Chair of the Council of the Inspectors 
General on Integrity and Efficiency, an organization comprised 
of all 75 Federal Inspectors General.
    Since the start of the pandemic, he has simultaneously led 
the Pandemic Response Accountability Committee (PRAC), a 
committee of 22 Federal Inspectors General that oversee the 
Federal pandemic-related emergency spending.
    Mr. Horowitz, good to see you again. You may proceed with 
your opening.

 TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ,\1\ INSPECTOR 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Horowitz. Thank you, Chairman Peters. Good to be here 
again, and thank you, Ranking Member Portman, and members of 
the Committee.
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    \1\ The prepared statement of Mr. Horowitz appear in the Appendix 
on page 59.
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    Each year, as was noted, independent oversight work by IGs 
results in billions of dollars in recoveries and savings for 
the taxpayers. The bipartisan Inspector General Independence 
and Empowerment Act of 2021 will allow the IG community to 
build on that success and further protect the public we serve 
from waste, fraud, abuse, and mismanagement.
    I want to address two provisions that are particularly 
important to my office at the DOJ--expanding my office's 
jurisdiction to include professional misconduct by DOJ 
attorneys, and providing IGs with testimonial subpoena 
authority.
    Granting my office authority to investigate alleged 
professional misconduct by DOJ attorneys has received broad 
bipartisan support over successive Congresses, because it 
promotes independent oversight, transparency, and 
accountability within DOJ for all of its employees, including 
Department prosecutors.
    I am the only Inspector General in the Federal Government 
that does not have the authority to investigate all alleged 
misconduct, including professional misconduct by agency 
attorneys. There is no principled basis, in my view, for 
granting my office oversight over DOJ law enforcement 
personnel, such as FBI agents, while excluding DOJ lawyers from 
that same OIG oversight. Providing my office with such 
jurisdiction would enhance the public's confidence in the 
outcomes of these investigations and provide the OIG with the 
same authority as every other IG.
    The importance of a statutorily independent office within 
DOJ to oversee allegations of misconduct by DOJ lawyers was 
even recognized recently by the National Association of 
Assistant U.S. Attorneys (NAAUSA) in a recent opinion piece. 
While that organization disagreed with me that such oversight 
should be done by my office and instead proposed that the head 
of the Department's Office of Professional Responsibility (OPR) 
become a Senate-confirmed position, we both agree that 
independence is necessary to promote public confidence in 
investigations of department lawyers.
    Congress has already created such a statutorily independent 
entity within DOJ that has a demonstrated ability to conduct 
such oversight, namely the DOJ OIG. We employ dozens of 
attorneys, whose backgrounds and experiences are similar to the 
lawyers in the DOJ OPR, including former prosecutors and 
Department attorneys specializing in attorney ethics. This 
group of my attorneys at the Department of Justice OIG led our 
review of the Foreign Intelligence Surveillance Act (FISA) 
abuse allegations, the Clinton email and Comey memos 
investigations, and our overview of Bureau of Alcohol, Tobacco, 
Firearms and Explosives' (ATF's) Operation Fast and Furious, as 
well as other sensitive and complex matters.
    Further, the OIG would ensure that the process for 
reviewing attorney misconduct allegations is identical to the 
OIG system that currently exists across the Department of 
Justice for non-attorney misconduct allegations. For decades, 
the OIG has coordinated effectively with the DOJ law 
enforcement components. Indeed, the disciplinary processes at 
the FBI and Drug Enforcement Administration (DEA) have 
substantially improved since the OIG obtained oversight 
authority over those components in 2002.
    These same transparency and accountability mechanisms 
should apply to DOJ attorneys, and that is why I believe the 
public would be well served by adopting this legislative 
change.
    Let me turn briefly to testimonial subpoena authority, 
which I also strongly support. The absence of such authority 
hinders our ability to potentially obtain critical evidence 
from former employees, employees of Federal contractors and 
grant recipients, and other non-government witnesses in 
investigations involving fraud, waste, abuse, and misconduct.
    Recently, Congress granted this authority to CIGIE's 
Pandemic Response Accountability Committee as it had previously 
done with the Recovery Accountability and Transparency Board in 
2009. Further, the DOD IG was granted this authority by 
Congress in 2009, and it has used it appropriately and 
sparingly.
    My office has numerous examples in high-profile and not-so-
high-profile investigations and reviews where the lack of such 
authority has undermined our oversight efforts. For example, in 
our recent review of the FBI's handling of the Nassar 
investigation, the USA Gymnastics former president refused a 
voluntary follow-up interview with my office after we had 
learned additional information about an alleged potential 
conflict of interest involving a former FBI Special Agent in 
Charge (SAC). This inability in numerous cases to hold 
accountable former officials for serious misconduct diminishes 
the public's trust in the government and harms the taxpayers.
    Importantly, your legislation includes several appropriate 
and important safeguards which I fully support, including 
allowing the Attorney General (AG) an opportunity to object to 
the issuance of a subpoena and an IG panel to oversee the 
issuance of such subpoenas. I hope the Committee moves this 
legislation forward.
    In conclusion, thank you for your leadership and this 
Committee's leadership in supporting our independent oversight 
efforts, and I look forward to the Committee's questions.
    Chairman Peters. Thank you, Mr. Horowitz.
    Inspector General independence clearly is vital to our 
democracy, and Congress must take every effort to ensure your 
independence is not undermining. That includes providing 
oversight when an IG is removed from office. Legislation that 
we are working on, working on with Ranking Member Portman, 
includes an enhance, 30-day notification requirement for the 
President to provide a detailed reason for removing an IG, 
which gives Congress the time to deliberate whether the removal 
is appropriate and warranted.
    Ms. Lerner, I know you mentioned this in your opening 
comments. If you would like to elaborate we would love to hear, 
and then I would love to hear from the other two witnesses on 
your thoughts on this requirement. Ms. Lerner.
    Ms. Lerner. Thank you. We appreciate the proposed amendment 
and the greater clarity that would come from a more in-depth 
statement than the simple fact that President has lost 
confidence in an IG. As you note, that gives Congress, in 
particular, greater insight and makes it much more likely that 
they will be able to conduct appropriate oversight. We hope 
that it will also prevent situations where IGs are removed for 
purely political reasons when it is clear that the President 
has to articulate a legitimate reason for that removal. This 
also bolsters, we believe, these reporting requirements, the 
notice requirements that already exist that relate to removing 
an Inspector General.
    Chairman Peters. Thank you. Mr. Winters, your thoughts?
    Mr. Winters. I agree with Ms. Lerner's assessment.
    Chairman Peters. Mr. Horowitz.
    Mr. Horowitz. Mr. Chairman, the enhanced requirement, 
because IG positions are different, the need for independence 
allows Congress to better understand the reasons for the 
removal, but most importantly, frankly, it allows the public to 
understand the reasons for the removal. We are there to protect 
the public and the public fisc and the taxpayers, and so they 
should know the real reason and the actual reason why IG was 
removed.
    Chairman Peters. Thank you. I am going to start and ask 
this question to Mr. Winters but I want to hear from our other 
two witnesses as well. Under current Federal vacancy law, 
nothing prevents the President from appointing an acting IG who 
is not qualified or who has a conflict of interest. In the 
event of a vacancy, why is it is important to limit who can 
serve as an acting IG to individuals who already serve in the 
IG community? Mr. Winters.
    Mr. Winters. From my perspective it gets down to 
independence and confidence in doing Federal oversight work. To 
take someone from the IG community to serve in that role, I 
think, is a real benefit to the Nation and the agency rather 
than, for example, someone who comes with a political 
perspective from their own agency.
    Chairman Peters. Mr. Horowitz.
    Mr. Horowitz. Mr. Chairman, the Government Accountability 
Office (GAO) issued a report last year, and the Comptroller 
General spoke to this problem, which is the inherent clear 
conflict that exists. It is wholly inconsistent with the IG 
Act, because as you and Ranking Member Portman indicated, to 
have overseeing the agency, and a senior official from that 
agency, whether they are a political appointee or not, there 
cannot be that level of confidence and trust from the public 
that it is truly independent oversight, and it also creates 
issues for whistleblowers. Why would a whistleblower go to an 
agency to complain about senior officials' misconduct if they 
knew that IG office was overseen by a senior official, who 
would know their identity and, of course, as we have seen as 
IGs, the threat of retaliation, the fear of retaliation is with 
good reason, because we have seen whistleblowers retaliated 
against.
    Chairman Peters. Thank you. Ms. Lerner.
    Ms. Lerner. The IG Act requires that Inspectors General be 
appointed without regard to political affiliation and based 
solely on integrity and their demonstrated excellence in 
certain specific disciplines. That is important because IGs are 
in their positions to lead independent and objective units, 
focused on the IG's twofold mission of preventing and detecting 
fraud, waste, and abuse, and promoting an economy and 
efficiency.
    The purpose those requirements is completely undermined if 
an acting IG, who is either a political appointee or in the 
agency being overseen, is asked to run an Iinspector General's 
office.
    Chairman Peters. Thank you. Mr. Horowitz, you cited the 
OIG's lack of testimonial subpoena authority as a reason why 
individuals with potentially relevant information to an 
investigation were able to ignore questions from the office. 
You cited the Nassar example, which unfortunately I am all too 
familiar with, being from the State of Michigan.
    Mr. Horowitz, how would testimonial subpoena authority 
improve the work of the Inspector General?
    Mr. Horowitz. I think it would be an extremely important 
change and helpful to us in a wide range of our work. It is 
easy for me. I can cite example after example in our high-
profile cases, but it happens very frequently in our not-so-
high-profile cases, where individuals simply refuse to appear, 
or we have had occasions where people have resigned a few hours 
before a compelled interview, precisely because they wanted to 
avoid speaking to us. We have had two examples like that in the 
last couple of years.
    Whistleblower cases, we have had it both within FBI, where 
a former senior official would not speak to us about alleged 
retaliation, and we had it with a contractor, where a 
contractor claimed that their employer, the contractee claimed 
that their employer had ripped off the U.S. Marshal's Service. 
We tried to speak to their supervisor, who had left the 
contractor. We could not. Those are the kinds of problems we 
face.
    Chairman Peters. Ms. Lerner, you testified that Inspector 
General oversight can be substantially hampered by the 
inability to compel the testimony of witnesses who have 
information that cannot be obtained by any other means. A few 
agency IGs, including the DOD IG already have testimonial 
subpoena authority, and at least as I understand it that power 
has so far been used judiciously and sparingly, and simply 
having the authority means the IGs often rarely have to use it.
    How can we ensure that testimonial subpoena authority is 
not abused?
    Ms. Lerner. I think, at a minimum, we start by applying the 
same standards we use for our documentary subpoenas and we 
build on that. In my office, for a documentary subpoena to be 
issued there are six sets of eyes that go one it--three 
investigators, two attorneys, and then me--and our focus and 
attention has added a great deal of value there, and in the 30 
years of our existence we have never had a subpoena enforced.
    We are not alone. Other IGs have this. We build on those 
procedures. We add additional controls that are appropriate for 
the stepped-up risk associated with testimonial subpoena 
authority, and then, obviously, we comply with the additional 
controls that you all are considering that would require notice 
to the Attorney General and transparency about the use of this 
authority through IG semiannual reports and reporting from 
CIGIE. So we are committed to working with you all to ensure 
that those protections are in place.
    Mr. Winters. Mr. Chairman, may I add something on 
testimonial subpoena authority?
    Chairman Peters. Absolutely.
    Mr. Winters. From the Integrity Committee's perspective, 
where we have oversight over senior Inspector General 
personnel, to include Inspectors General, this would be a great 
tool for us as well, because like Michael Horowitz testified, 
we have individuals that leave government but we have the 
authority and the public interest to investigate them, even 
after they leave. But if they refuse to testify or to answer 
our calls then our investigations are somewhat pointless.
    To Ms. Lerner's point, in terms of how the Transportation 
Security Administration (TSA) is checked, the Integrity 
Committee serves as a check on abuses of testimonial subpoena 
authority as well.
    Chairman Peters. Great. Thank you. We are in the midst of 
votes, is why you are seeing our Members come and go, so I need 
to vote myself. I will turn the gavel over to Senator Hassan 
and recognize Ranking Member Portman for his questions.
    Senator Portman. Thank you, Mr. Chairman. First of all, 
thank you all for being here and for the testimony you have 
already provided. It is very helpful. The 30-day notice period 
and the provisions that we want to include within that so that 
there is some rationale that Congress and the American people 
can understand is really important. The testimonial subpoena, 
we put guardrails in place for a reason, because we think this 
is a power that could be abused, and we want to make sure it is 
not.
    In that area there is some discussion of putting a sunset 
on it. I understand if it is a sunset that is very short that 
it would be hard for it to work operationally. It takes a while 
to get this process up and going. But what about a sunset of 
four, or five, or six years for the testimonial subpoenas? How 
would you feel about that? Anyone, feel free to chime in.
    Ms. Lerner. I will start. Congress always has the ability 
to revoke an authority that it has granted. Our concern with 
the sunset provision is that it is a blunt instrument. Our 
preference would be to have a requirement to have the use of 
these authorities reviewed byv an independent entity like CIGIE 
or GAO, and allow the results of that review to inform 
Congress' decision about whether to continue or to revoke this 
authority.
    But if a sunset date is necessary, and we understand that 
that is important for some members, we would ask that the 
period be long enough to enable us to have sufficient numbers 
of examples to make the case for the use of the authority, 
since, in many instances, the mere fact that a testimonial 
subpoena authority could be issued is enough to ensure an 
individual's compliance with an interview.
    So we would prefer, a 10-year period before sunsetting, and 
then that is in no small part because of the amount of time 
that it has taken us to obtain this authority in the first 
place. It has taken us 10 years with congressional support to 
get this far, and we are worried that we could, with a hard and 
fast sunset, lose that authority and have great difficulty 
getting it reauthorized.
    Senator Portman. I do think it is important, also, the 
guardrails we have placed on it, and we will have further 
discussions about that, because I think this is an important 
issue for us to try to resolve today, as we go into markup in 
the next couple of weeks on this legislation.
    It is incredibly important that you all have independence, 
and, we rely on you to conduct some of the most sensitive and 
important investigations in government, because we believe you 
are uniquely qualified to be able to do it. I mentioned earlier 
you have the expertise. You have also got the nonpartisanship, 
and IGs need to be beyond reproach.
    I am going to ask a few questions about one such sensitive 
and important investigation by your office, Mr. Horowitz, and 
this is a sensitive topic, I know, but I think it is one that 
is important for us to talk about today, as we have the 
leadership of the IG community before us. That is about the 
investigation of former FBI Deputy Director Andrew McCabe.
    Mr. McCabe, as you know, was fired for lacking candor under 
oath in 2018, shortly before his retirement. Late last week, 
DOJ reversed its course, settling a lawsuit by Mr. McCabe to 
restore his employment as a voluntary separation, and to 
restore his pension.
    Mr. Horowitz, could you briefly remind us of the findings 
of your report regarding Mr. McCabe?
    Mr. Horowitz. Certainly, Senator. The report concerned an 
investigation that actually the FBI had initially undertaken 
involving alleged leaks about information that was potentially 
damaging to Secretary Clinton during the 2016 Presidential 
campaign. The FBI internal investigators developed information 
that led them to believe that Deputy Director McCabe may have 
lied to them.
    They then referred the matter to us----
    Senator Portman. Right.
    Mr. Horowitz [continuing]. Then the position he held at the 
FBI. We assumed the investigation and concluded, in a public 
report that remains on our website and the public can see, that 
Mr. McCabe lied both under oath and not under oath, on several 
occasions, when he denied, at various points, certain key facts 
and information, including who was the source of the leak.
    Senator Portman. OK. It is my understanding that following 
that report, which sounds like it was a pretty definitive 
report, the top career official at the Department of Justice as 
well as the career head of the Office of Professional 
Responsibility at DOJ both recommended that Mr. McCabe be 
fired. Is that correct?
    Mr. Horowitz. That is certainly correct, I know, as to the 
FBI's Office of Professional Responsibility head, who as you 
indicated is a career employee and actually is a former 
prosecutor. They adjudicate, in the first instance, our 
findings, so our report goes to them. They decide whether they 
agree with us. They agreed with us on almost all, but actually 
not all of our findings, so they made their own independent 
call that, in fact, he lied on multiple occasions, but they did 
not fully find everything we found.
    Because of Deputy Director McCabe's position there is a 
different process for him. It went to the Attorney General for 
review, then-Attorney General Sessions, and this I do not have 
complete insight to, but my understanding is that the Attorney 
General asked a career official in the Office of the Deputy 
Attorney General to handle the review, and that that person 
recommended removal, as well.
    Senator Portman. The senior career person agreed with your 
finding that the removal was appropriate----
    Mr. Horowitz. That is my understanding.
    Senator Portman [continuing]. Should be a firing. Is that 
consistent with how the Department of Justice and the Office of 
Professional Responsibility has handled these sorts of cases in 
the past?
    Mr. Horowitz. That is my understanding as well.
    Senator Portman. OK. Was your report influenced by 
President Trump or anyone in the Trump administration, any 
political considerations?
    Mr. Horowitz. Absolutely none.
    Senator Portman. Did the settlement change any of the 
findings in your report?
    Mr. Horowitz. It did not. We actually were not sued by Mr. 
McCabe, so we were not a party to the settlement. Our findings 
remain on our website. We stand by our findings. The public can 
read them. They can go to our website. By the way, the FBI 
issued a statement stating that they stand by their findings as 
well, of their OPR, and their conclusions.
    Senator Portman. How did this happen, and what kind of 
message does this send to FBI agents that a former Deputy 
Director was not held accountable for misrepresenting facts 
under oath?
    Mr. Horowitz. I think, as an IG, that it is critical that 
individuals be held accountable for their wrongdoing, no matter 
what level they are at in an organization, and that it is 
particular incumbent upon us to hold accountable senior 
officials the same way we hold accountable less senior 
officials and newer officials.
    Senator Portman. Do you view this as a double standard, Mr. 
Horowitz?
    Mr. Horowitz. I cannot speak to, Senator, the decision of 
the Department and what evidence they saw in the adjudication, 
so I am not going to speak specifically to why they settled or 
how they settled, because I was not a party to that settlement. 
It is very important--and this is why I think the FBI issued 
their statement as well--it is very important for employees to 
understand that we will hold them, at the OIG, accountable, 
regardless of their position or standing.
    Senator Portman. Mr. Horowitz, you were appointed by 
President Obama. Is that correct?
    Mr. Horowitz. That is correct.
    Senator Portman. How important is your independence as an 
IG to your ability to make comments like the ones you just made 
today?
    Mr. Horowitz. It is central to what we do. In other 
countries people in my position cannot do that, for fear of 
being fired, removed, or, frankly, even things worse happening. 
I have an opportunity to meet, as CIGIE chair, or had an 
opportunity to meet, as CIGIE chair, with delegations from 
foreign countries, and it struck me how many times those 
officials wanted to know what we did and how we did it, because 
in their countries they might get killed if they did the same 
kind of work we do.
    Senator Portman. My time has expired, but it goes to the 
importance of the testimony you all are providing today, the 
legislation we are considering, and the interest in maintaining 
the independence of the IGs in our system of government. Thank 
you.
    Senator Hassan. [Presiding.] Thank you, Senator Portman.
    Senator Carper, are you available? I see you pulling up 
your chair. Senator Carper is joining us virtually.
    Senator Carper, are you ready to be recognized? I think he 
is coming.
    Senator Carper, you are recognized for your questions, if 
you are ready.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. I am ready. My first question pertains to 
our legislation that Senator Braun and I introduced called the 
Keep the Watchdogs Running Act. That is a good title, is it 
not? But the legislation would give the Office of the Inspector 
General authority to continue oversight of agency operations in 
the event of a government shutdown, to the extent that certain 
agencies continued to operate. If we have a government shutdown 
somewhere down the line, there is going to be some agencies 
that will not shut down and will continue to operate, and we 
want to make sure that that these Inspectors General keep 
operating too, to keep in line things there.
    Mr. Horowitz, nice to see you again. Ms. Lerner, Mr. 
Winters. Can each of you take a moment to discuss the 
importance, please, of ensuring that essential oversight work 
continues, even during a government shutdown? As much as we 
hope we never have another one, we probably will. So that is my 
question, and it pertains to our legislation, bipartisan 
legislation that Senator Braun and I have introduced.
    Go ahead. Mr. Horowitz, why don't you go first.
    Mr. Horowitz. Thank you, Senator. I am happy to do so, and 
I agree with you completely about the importance of keeping 
things running even in the event of a government shutdown.
    We have been appreciative of the fact that our 
appropriators on the CGI Subcommittee have given us authority 
to carry over up to $4 million in funding, and that, in part, 
helps us continue running if there is a government shutdown. 
But, of course, it is a very limited period of time that it 
would allow us to continue operations.
    When the government shuts down, the grants that were given 
out, the contracts that were given out by the government, all 
of that work continues, or at least all of those monies 
continue to flow. At the Justice Department, agents continue to 
work. Lawyers continue to work, assuming the courts are not 
shut down. There is oversight work to be done, and it should 
not be the case that the overseers are shut down while the 
money continues to flow. I think that we would be able to 
continue our work.
    Senator Carper. Same question, if I could, for Ms. Lerner, 
Ms. Lerner and Mr. Winters. Just very briefly, your comments, 
please.
    Ms. Lerner. What I would just note, expanding on what Mr. 
Horowitz indicated, is, it is wonderful that IGs have 
independent appropriations, but a downside of that is it limits 
our ability to continue working in a shutdown situation. Like 
him, I am lucky enough to have some carryover funding, and that 
could enable me to keep my folks working for about a week, but 
my agency, with its many different appropriations, has much 
greater flexibility and latitude to keep staff working, 
potentially, and we would not be able to oversee them. I know 
we are not alone at NSF OIG in that situation. This authority 
would be of value, not just to us but to the whole IG 
community, in situations where we face a government shutdown.
    Senator Carper. Thanks, Ms. Lerner.
    Mr. Winters. Very briefly, from Amtrak's perspective, the 
trains continue to run during a government shutdown, and as you 
have seen in the newspapers, this is a very important national 
function to run a railroad, but there are safety considerations 
at bay. So to shut down an Office of Inspector General while 
the trains are running is inconsistent, in my view, with good 
government.
    Senator Carper. Yes, great point. Thank you, sir. As a 
frequent rider of Amtrak I say thank you, sir. Next question is 
pertaining to political interference, and this would be a 
question for all of you. I will start off, if we could, with 
Mr. Winters, with you on this. You can be our leadoff here.
    The Inspector General's Act of, I think it was 1978, 
established the Offices of the Inspector General at 12 Federal 
agencies. It described those offices as--here is the quote, I 
think out of line--independent and objective units that are 
charged with investigating waste, investigating fraud, abuse, 
and promoting much-needed accountability.
    As a former Commander in the U.S. Navy, as this Committee 
considers legislative reforms to the IG Act that would 
strengthen the independence and integrity of the Inspector 
General across Federal agencies, could each of you share what 
you believe is the most important reform that we, in the 
Congress, may want to consider, given lessons learned under 
previous administrations? Most important reform that we, in 
Congress, may want to consider.
    Mr. Winters, why don't you lead us off, please.
    Mr. Winters. In terms of the present bill, the reforms in 
there, I think the vacancies and the replacement of IGs that 
are leaving government from--pick a reason, but for example, if 
the President removes an IG, I think that is a critical 
juncture in terms of making sure that there is appropriate 
reform, to ensure that the next IG going in is truly 
independent.
    The other matters in the bill are equally important, but 
that is the one, to me, that strikes me as the most important.
    Senator Carper. Great. Thank you, sir. Ms. Lerner, what 
would you is maybe the most important provision?
    Ms. Lerner. I have to double down on Mr. Winters' statement 
about the importance of ensuring that acting IGs have the 
independence that they need to do their work. When you look at 
the number of vacancies that we have had over the last five 
years, and the lengths of those vacancies, you find acting 
officials in positions for years. It is essential if the work 
of the office is to continue and to provide value to Congress 
and the American public that you have someone who had lead that 
work and whose independence will not be questioned.
    Senator Carper. Great. Thanks, Ms. Lerner. Mr. Horowitz, 
same question, most important reform that we, in the Congress, 
may want to consider in this regard?
    Mr. Horowitz. Thank you, Senator. I think the Vacancies Act 
piece is the most important, for the reasons previously 
indicated by Mr. Winters and Ms. Lerner. I will just add, on 
the testimonial subpoena authority, I think that is critical 
from the public standpoint, in particular. I think it is very 
hard to be in a position where we are being asked to 
investigate alleged wrongdoing, but like occurred in, for 
example, the Nassar matter, and then when the public wants to 
know the answer to what happened, we, unfortunately, often have 
to give the answer, ``We are not sure.'' We do not know, 
because the employee has left, quit, the contractor who has 
allegedly retaliated will not talk to us. That leaves 
significant dissatisfaction, and creates a question for the 
public about the value of our work if we cannot answer the most 
basic questions because we cannot get the evidence we need.
    Senator Carper. Good. Madam Chair--I am not sure who is 
chairing right now----
    Senator Hassan. I am chairing, Senator, so thank you.
    Senator Carper. I have one short question, but I would like 
them to answer it on the record, but I would like to, if I 
could, to take 20 seconds to just----
    Senator Hassan. All right. Take 20 seconds and then we will 
move on.
    Senator Carper. According to the Council of Inspectors 
General on Integrity and Efficiency, 14 Inspectors General 
positions remain vacant, 14. President Biden has nominated 
eight. Could each of you please, for the record, take some time 
to discuss ways to incentivize well-qualified individuals to 
consider serving as IGs? Additionally, what do you believe are 
the essential characteristics of an effective Inspector 
General? For the record please. Thank you all. Thanks for what 
each of you do.
    Senator Hassan. Why don't we start with Ms. Lerner and we 
will just go right down the line.
    Ms. Lerner. I am sorry. I could not hear the question.
    Senator Hassan. I had difficulty hearing it too. Senator 
Carper, could I suggest that you submit that for the record, 
and that----
    Senator Carper. That is what I asked to do.
    Senator Hassan. Oh. You are just submitting that question 
for the record. You are not asking them to answer.
    Senator Carper. That is exactly right.
    Senator Hassan. Terrific. Thank you very much.
    Senator Johnson, if you are ready I will recognize you for 
your round of questions.

              OPENING STATEMENT OF SENATOR JOHNSON

    Senator Johnson. Thank you. I appreciate that. Welcome, 
everyone. Thanks for your service, especially General Horowitz. 
You and I have had this conversation before, where I have made 
the analogy, which I think is a pretty accurate analogy, to 
independent auditors that are appointed by the board, 
oftentimes selected by the Chief Executive Officer (CEO), and 
they are meant to provide information to the board of 
directors, who report to the shareholders, is everything on the 
up-and-up in the corporation.
    I kind of look at Inspectors General the exact same way. 
When I hear ``independent,'' I am just asking the question, 
independent of who? Who should Inspectors General be 
independent of?
    Mr. Horowitz. We have had this discussion. I appreciate it. 
As you know from our discussion, in private practice I 
represented and worked with audit committees and independent 
auditors, and I think the answer on that is independent of the 
agency leadership from being able to take personnel action 
against them. That is the system Congress set up. Now I am 
going to talk about Presidentially appointed, Senator-confirmed 
IGs, like in my position.
    The setup that Congress created was to allow me to operate 
without fear that the agency leadership can respond in a 
personnel action against me. I can, of course, be removed at 
will by the President, and that is entirely appropriate, and 
none of this legislation changes that.
    Senator Johnson. OK. So again, it is independent of the 
agencies, but Inspectors General report to the President. They 
serve at his pleasure. Correct?
    Mr. Horowitz. That is correct.
    Senator Johnson. Unfortunately, over the years--and I have 
experienced this firsthand as Chairman of this Committee, 
trying to undertake investigations, issuing subpoenas, for 
example, to the FBI, they were largely ignored, slow walked. 
Congressional oversight has been dramatically weakened because 
we have no enforcement mechanisms. It seems like we have 
outsourced our oversight, the people's oversight, the people's 
direct oversight into these agencies to Inspectors General.
    I am concerned that Inspectors General, when they take a 
look at that ``independent'' moniker that they are thinking 
that is independent of everybody. The President of the United 
States is held accountable to the voters. If he dismisses an 
Inspector General, the voters will hold the President 
accountable. I am concerned about the thrust of all the 
requirements imposed by Congress. Again, we have relied on 
Inspectors General, and I appreciate the work. I have also 
worked with Inspectors General who were corrupt and had to 
leave. OK? I think our other witnesses are aware of that as 
well, the inspections they are having to do on Inspectors 
General.
    I think this is important to keep in mind, that the 
Inspectors General report to the President. They do not report 
to Congress. We use them, but my solution would be to beef up, 
reclaim congressional oversight power, which we have allowed to 
lapse, and we have outsourced that to Inspectors General. Do 
you understand that assessment? Not agree or disagree, but do 
you understand where I am coming from there?
    Mr. Horowitz. I certainly understand the concern you 
outline about what the congressional oversight responsibilities 
are and how they have been executed. I will just say, this 
legislation changes nothing about the President's ability to 
remove an IG. There is no for-cause provision here. There is 
none of that. And to your point, as CIGIE Chair, one of the 
things--and Allison has continued this, I know, as Chair--I 
talk about this all the time with not only my folks at DOJ OIG 
but with other IGs, we are not free-range actors. I agree with 
you completely. We are in a constitutional system. We follow 
the IG Act. We follow the law.
    What I think the legislation does, though, particular with 
the Vacancies Act, is it does not limit the President's ability 
to remove. The President can remove whomever----
    Senator Johnson. Just puts reporting requirements on them.
    Mr. Horowitz. Well, it does on the----
    Senator Johnson. Again, I have some other issues.
    Mr. Horowitz. OK.
    Senator Johnson. One example, I think a glaring example in 
terms of the weakening of congressional oversight, is, for 
example, under a Freedom of Information Act (FOIA) request, 
over 4,000 of Dr. Fauci's emails were provided to an outside 
group. Now Congress is not subject to the redactions of that 
information that, again, they were forced to give to an outside 
group. We asked for those, five of us, on this Committee, using 
a law that says they shall turn over this information. We are 
not asking for new documents. We are just asking for the 4,000 
pages, unredacted. We have not gotten them unredacted. We are 
getting then now in dribs and drabs, just little bits and 
pieces, a couple of pages at a time, in camera. I think that is 
wrong.
    I do want to, before I run out of time here, though, 
because I have not been able to talk to you about this, since I 
was Chair and since you issued your FISA report, in your FISA 
report you talked about how--and this was in the main body of 
the report, how Bill Priestap had told you, that ``the FBI 
didn't have any indication whatsoever, by May 2017, that 
Russians were running a disinformation campaign through the 
Steele election reporting.'' That was in your FISA report. 
Correct?
    Mr. Horowitz. Yes. I do not have it in front of me but I 
trust you----
    Senator Johnson. It was. It took us months in a battle to 
unredact redacted footnotes that completely are contrary to 
that. I do not want to take time to quote that, but that is in 
the public record and you are aware of these footnotes.
    Mr. Horowitz. Yes.
    Senator Johnson. The question I have for you is, I see 
nothing in these footnotes that should have been classified or 
even subject to redaction. Why were those redacted?
    Mr. Horowitz. I would have to go back and look at the 
specific footnotes, and I am working on memory, but just on 
this and all our other reports, we send this to the FBI and the 
Justice Department leadership and they ultimately make the 
call, and I am not----
    Senator Johnson. OK. That is----
    Mr. Horowitz [continuing]. Not the person who is going to 
put out information. They say it is classified, obviously and 
risk getting prosecuted for doing that.
    Senator Johnson. Right. So again, what I was trying to 
point out here, this was further cover-up by the FBI and the 
Department of Justice, wanting to make sure that--it was not in 
the public domain, very early on. They knew that the source of 
the Steele dossier had contacts with Russian intelligence 
services. They knew this as early as October 2016, January 
2016, and yet the FBI and the Mueller investigation continued 
to plod forward and put this country through the political 
turmoil of the Mueller investigation, even though they knew the 
source document that prompted the investigation, the corrupt 
investigation, was very likely a product, or certainly part of 
a product of Russian disinformation. That is an accurate 
assessment, is it not?
    Mr. Horowitz. I will just add, there are many reasons why, 
as we detail in the report, there should have been greater 
follow-up and skepticism about reporting.
    Senator Johnson. But I will say every step of the way, in 
my investigation, I was frustrated by Members of this 
Committee, but by FBI Director Wray, that did not comply with 
my subpoenas, and as a result the American public was kept in 
the dark about this. I think, and my final point is, 
congressional oversight capability must be beefed up. As 
important as IG reforms are and making sure that you can 
operate independently and uncover corruption within agencies to 
report to the President, Congress needs the oversight ability 
to report to the American public.
    Chairman Peters. [Presiding.] Thank you.
    Mr. Horowitz. And can I just----
    Chairman Peters. Quickly, please.
    Mr. Horowitz [continuing]. Comment on the Senator's point 
because I do think it is relevant to today's discussion as 
well, because as many of the Members know, who were here over 
the last 10 years, certainly in my first few years, and Senator 
Johnson chaired, I think, some of these hearings where we 
talked about my inability to get records, and at the time, just 
to be clear, one of the areas that was off-limits to me, 
supposedly, was FISA records.
    Back in the day, as you will recall, the only reason that 
changed is because this Committee, Sen Grassley, and the House 
moved the IG Empowerment Act (IGEA) legislation in 2016 that 
overturned the LLC opinion, the FBI's position, and gave us 
access to that. If we did not have the access to the records 
you would not have even had our 600-page report without FISA, 
because I could not have done it. That is why the reforms here 
are so important for us to be able to do.
    Senator Johnson. Thank you.
    Chairman Peters. Thank you, Mr. Horowitz. Senator Hassan, 
for your questions.

              OPENING STATEMENT OF SENATOR HASSAN

    Senator Hassan. Thank you, Mr. Chairman. I want to thank 
you and the Ranking Member for holding this hearing, and I want 
to thank your witnesses, not only for your testimony but your 
service as Inspectors General. It is obviously incredibly 
important, and I am very grateful to you and your families for 
the service you provide. Your important work roots out waste, 
fraud, and abuse of taxpayer dollars and improves the delivery 
of critical services to the American people.
    I want to start with a question to you, Inspector General 
Lerner, and I would really like to follow up on the need for 
the testimonial subpoena authority, because more than 40 years, 
Inspectors General have been able to issue subpoenas to compel 
the production of documents to advance their oversight work.
    Earlier this year, I introduced the Inspector General 
Testimonial Subpoena Authority Act with Senator Grassley, to 
expand the subpoena authority and allow the IG community to 
also compel in-person testimony from witnesses who refused to 
cooperate with IG investigations, and we have talked a little 
bit about that already this morning.
    But Inspector General Lerner, how do Inspectors General use 
the documentary subpoena authority and how would having the 
testimonial subpoena authority build on the existing authority?
    Ms. Lerner. First off, thank you very much for your and 
Senator Grassley's support for testimonial subpoena authority.
    In terms of how IGs use documentary subpoena authority, I 
think they have used it very successfully over the over 40 
years that we have had that authority. As I indicated earlier, 
most IGs have a strong process built around ensuring the 
appropriateness of the subpoenas that are being put out, 
ensuring that they are within the jurisdiction of the office 
and that they are not overly broad or unduly burdensome.
    We know, in asking people to provide us with documents, 
that that is a burden on them, but, it needs to be outweighed 
by the benefit that is coming in. I think as court cases have 
shown, in situations where IGs have issued subpoenas, there 
have been very few cases where an IG subpoena has not been 
upheld. I can think of one, and that was a situation where the 
subpoena was not related to a matter within the IG's 
jurisdiction.
    I think we have an outstandingly strong process of 
appropriately using our documentary subpoena, and we will build 
on that and ensure that we appropriately handle testimonial 
subpoenas.
    Senator Hassan. You have a system in place, and you can use 
the same kind of parameters and structures and reviews to 
oversee the documentary subpoena process, so it would not be 
abused.
    Ms. Lerner. Absolutely. We will build on them, because, 
obviously, what we are asking for here, it takes us a step 
beyond documentary, and it has a greater impact on people.
    Senator Hassan. Right. You referenced it just a bit, but if 
concerns are raised about an IG's use of the documentary 
subpoena authority, how are those concerns addressed?
    Ms. Lerner. There are a couple of different avenues. If 
there is any question of political or partisan or problematic 
reasons behind a subpoena, that is a matter that could go to 
CIGIE's Integrity Committee. But I also imagine if we are given 
this authority we would build steps into our peer review 
process to examine the use of this by Inspectors General and 
ensure that they have appropriate procedures in place, and, 
factor that into the ultimate assessment that happens 
periodically, of all IGs' investigative operations.
    Senator Hassan. hank you.
    Mr. Horowitz. Can I add, Senator?
    Senator Hassan. Yes, just briefly, because we have to get 
to a bunch of other things.
    Mr. Horowitz. Absolutely. The other mechanism is, frankly, 
if someone receives a subpoena and thinks it is improper, they 
can go to court. We cannot enforce it. We would have to go to 
court----
    Senator Hassan. Got it.
    Mr. Horowitz [continuing]. And get a judge to do it.
    Senator Hassan. Got it. I appreciate that. I wanted to go a 
little bit deeper on something that you mentioned, Ms. Lerner, 
and I will actually ask Inspectors General Horowitz and Winters 
to reply to this. It is important to note the testimonial 
subpoena authority is not new, because the Department of 
Defense Office of Inspector General has had the testimonial 
subpoena authority for more than a decade.
    So, IG Horowitz, you mentioned in your testimony that the 
Department of Defense IG has used its testimonial subpoena 
authority sparingly, issuing only three subpoenas for testimony 
since it received the authority in 2009. How can the DOD IGs' 
use of this authority serve as a model for how other IGs can 
use the testimonial subpoena authority in a judicious and 
thoughtful way?
    Mr. Horowitz. Excellent question. I think it is very 
important for us to use it as a model, because it has worked so 
well, for now a dozen years.
    What I would expect to happen, as I understand is happening 
and has happened at the Defense Department IG, is before an IG 
signs a subpoena for testimony they engage counsel or the 
witness themselves, to understand what the concerns are, if 
there are any issues or problems with testimony. Frankly, we do 
that now in the voluntary arena. When we are trying to get 
people to speak to us voluntarily we have those discussions. 
You do the same thing, and what I understand from the Defense 
Department IG is the reason they have had to issue so few is 
they have been able to reach accommodations with witnesses that 
have avoided the need to issue the subpoena, and to find the 
parameters of an acceptable voluntary interview.
    Senator Hassan. Excellent. I just wanted to confirm, 
Inspector General Winters, you mentioned it earlier that your 
Integrity Committee of CIGIE can prevent abuse of the 
testimonial subpoena authority as well.
    Mr. Winters. Correct. Abuse of authority is squarely within 
our jurisdictional realm.
    Senator Hassan. OK. To Inspector General Lerner, I 
appreciated your testimony regarding my work to reform the 
semiannual reports to Congress. These reforms intend to 
streamline and simplify the semiannual reports to make them 
more accessible to Congress and the public and to place greater 
emphasis on the agency's response to IG recommendations to root 
out waste, fraud, and abuse.
    How would these reforms help the Inspector General 
community, and are you confident that agencies and Congress 
will still receive the important oversight information that 
these reports are intended to provide?
    Ms. Lerner. I am absolutely confident that these reforms 
would not interfere with the transparency that Congress 
deserves from Inspectors General. In the 40 years since those 
requirements were enacted, IGs have made tremendous gains in 
being transparent. We all have websites now. We have places 
like oversight.gov. These reforms will allow us to more 
efficiently produce the semiannual reports and leverage those 
existing resources, and that will ensure that the most 
important matters are most clearly visible and transparent, and 
that the time and energy we used to put into doing things that 
were of lesser interest can be redirected and produce better 
outcomes for our office and for the people who depend on our 
work.
    Senator Hassan. Thank you very much, and thank you, Mr. 
Chair, and again, to all of the witnesses. Thank you for your 
work.
    Chairman Peters. Thank you, Senator Hassan. Senator 
Lankford, you are recognized for your questions.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Chairman, thank you. Thank you all for 
your work. It is vitally important. We very much appreciate the 
work and would encourage you to stay on it, continue to bring 
ideas and issues. Inspectors General deal with fraud, make 
recommendations, bring up ideas of greater efficiency, so 
Inspectors General that are actually leaning in to an agency, 
developing those relationships, and proposing ideas help us 
all, and help the Nation. There is an expectation of that work, 
and let me just be one of many to be able to say to you, lean 
in. We need you working well in that task.
    I have a whole litany of issues and questions that I want 
to be able to walk through and try to be able to address. We 
have talked through several things, but I would tell you what I 
hear most from people at home, when they talk about Inspectors 
General and different issues they see in government is why does 
it seem like no one is held to account?
    Now we all know that is not correct. There are some people 
held to account. But it becomes a very big deal when we see 
someone like Andrew McCabe, who we have already mentioned 
earlier, who you found, researched, walked through all the 
interviews, and found that he clearly lied, was fired by the 
Department of Justice, and then now has been added back in, his 
pension is now recovered, back pay is being paid back to him. 
There is a real sense of, hey, there is an Inspector General 
report that came out saying this person lied, and there seems 
to be no consequence on it.
    What we can do to be able to bring you testimonial subpoena 
authority and to be able to get at some of these things and to 
get recommendations is of great benefit to just restoring trust 
into government in the process. I want to drill down on a 
couple of these.
    Mr. Horowitz, you have been through investigations before 
that crossed jurisdiction. You walked through the issue of 
Glenn Simpson and Jonathan Winer. It is a State Department 
issue where you are over on Department of Justice. They were 
State Department, then they retired and makes this even harder. 
So can we talk through, when you get into an investigation that 
may include people from multiple ``jurisdictions,'' from other 
agencies, and then when they retire, how hard that is to be 
able to get the testimonial evidence.
    Mr. Horowitz. It is very hard, and the normal process would 
be if the employee was still at the State Department, for 
example, I would reach out to the State IG and they would 
facilitate my being able to speak to that person, much as I do, 
actually, on occasions when people call me. But once the 
employee is gone, the employee is gone, and I have no authority 
over them. State Department employee does not. The only one who 
would is the Defense Department IG, and I obviously do not 
cross over into that realm much.
    Senator Lankford. Subpoena power to be able to require 
testimonies is essential for the ongoing work because there are 
numerous examples of individuals who are under investigation 
with the Inspector General, they just retired and said, ``I am 
out,'' and then it becomes the issue of they retire with 
benefits, everyone knows that there was activity there, there 
was fraud, there was abuse. That was something whistleblowers 
have called out but they just retire and leave, and they leave 
with full benefits.
    Mr. Horowitz. How do you explain to the complaint who has 
come in and said, ``I was sexually assaulted'' or ``I was 
retaliated against as a whistleblower,'' or ``I just reported 
money was stolen and you are doing nothing about it.'' The 
answer is, ``Well, we need to get the evidence.''
    Senator Lankford. So we need to get that to you, clearly. 
There needs to be a balanced perspective on how that is 
handled. It was handled judiciously by the Department of 
Justice over the decade that they have had it. I believe that 
can work, but we have to be able to find a way to be able to 
hold people to account in the process.
    Mr. Horowitz, again for you, you did a very thorough 
examination on the Woods procedures in the FISA. FISA is an 
area that you have been excluded from, obviously to take a look 
at when you are having the opportunity to be able to do it. You 
are just looking to see whether the standards that have been 
set for a FISA application process were followed. That is a 
pretty straightforward issue. Best that I had, when I pulled 
through this, you sampled 29 FISA applications and you found 
400 instances of noncompliance with the Woods procedures. Then 
it got worse. You went through 7,000 FISA applications that 
have been authorized in the last 5 years. There were 179 which 
the Woods file, as was listed from your document, was missing, 
destroyed, or incomplete. I want to drill down on a couple of 
those things. Missing and incomplete is one thing. Destroyed is 
something totally different. That is a volitional act. Do you 
have evidence that some of these Woods procedures were 
destroyed?
    Mr. Horowitz. We have evidence that some of the files were 
destroyed. The problem was the FBI, even though they put in 
place this requirement of creating a Woods file, did not give 
any guidance on what you should do with it afterwards. We had a 
situation where our investigators, lawyers went in and found a 
stack of documents in a corner, and that was, we were told, 
what comprised the Woods file.
    So you cannot have an effective procedure to try and make 
sure FISA is scrupulously accurate through a Woods procedure 
and then not ensure the Woods procedures are being followed.
    Senator Lankford. Right. You made 10 recommendations to the 
FBI. Five of them they have responded to. Five of them, to the 
best of our understanding, they have not. Do you have an update 
from them that they are following through on those 
recommendations?
    Mr. Horowitz. They have told us they are following through 
on them, and through our regular process, in 60 days to 90 days 
they will owe us a report, and we will continue to update that. 
We have been doing this, by the way, in some of our other 
national security reports with the FBI for years and years, 
because we continue to follow up. That is what it means to have 
independent oversight. We close them, not the agency.
    Senator Lankford. Right. Mr. Winters, I want to be able to 
drill down on something here. The allegations that come from 
anyone to the Inspector General, from a whistleblower, whoever 
it may be, sometimes they are factual, sometimes they are not. 
Sometimes it is harassment from an employee that has found an 
effective way to be able to harass individuals, and they keep 
them tied up into investigations. So the Inspector General has 
a process for determining whether an allegation has merit at 
the beginning. I call it like a little mini grand jury. You can 
call it what you want to at that point, but you have to be able 
to make a decision to have merit.
    Can you walk me through that process, because sometimes 
this is a legitimate investigation and sometimes it is 
harassment. How do you evaluate this and what do you pass on to 
other Inspectors General?
    Mr. Winters. That is an excellent question, Senator, and 
every Inspector General faces that, and also the Integrity 
Committee as well, in terms of the weaponization of complaints. 
But we have a process for it, and particularly in the pandemic 
we have a lot of complaints coming in. There is a sifting, and 
we look at, basically, is this a valid complaint that alleges 
some form of wrongdoing that is actionable? From the Integrity 
Committee's perspective, whether or not there is a person that 
is covered, that is basically a senior-level person.
    For a typical complaint that comes in, say, for example, to 
NASA when I was there, or Amtrak, we have a specific section 
that does that, that has a sifting process that assesses the 
facts versus the criteria of whether something is actionable or 
not.
    Senator Lankford. We obviously want to be able to get you, 
and we have been very outspoken on this, the testimonial 
subpoena power, to be able to make sure someone cannot just 
retire and then avoid any kind of pursuit on this. We talked a 
lot about trying to get to who is the chain of secession if we 
need to get to an acting Inspector General. We have spoken 
frequently about how to be able to get more Inspectors General. 
This has been an issue of multiple Presidents, that they just 
do not appoint an Inspector General so they leave it open for a 
long time and it becomes an issue.
    This seems to be a gap that I do not know enough about, and 
I would be willing to be able to talk about, because I never 
want the Inspectors General Office to be used as a weapon 
against somebody unjustly, especially if someone is in their 
personal capacity and is having to hire their own personal 
attorney in this process, and someone who is just mad at them 
for a decision that they made chooses to be able to weaponize 
the process. That becomes highly disruptive to them personally 
and discourages people from actually stepping into government, 
when they know there is a Federal employee that can weaponize 
this process and just drive them out.
    Mr. Winters. I absolutely agree with that. As an Inspector 
General, and I just talk for me personally, we take an oath. I 
took my first oath in August 1972, to support and defend the 
Constitution. What that means is adherence to the rule of law, 
not some partisan narrative. We are very sensitive to those 
type of complaints, and endeavor, of course, to follow the law 
and the facts, in terms of those particular complaints.
    Senator Lankford. OK. Thank you. Mr. Chairman, thank you.
    Senator Portman [Presiding.] Senator Lankford, thank you. 
Thank you for your contributions to the legislation and 
particularly your work on this testimonial subpoena issue, 
which is a difficult one to navigate but a very important one. 
So thanks for your help.
    We have a number of people who are on virtually. Senator 
Ossoff, I believe you are next, if you are with us.

              OPENING STATEMENT OF SENATOR OSSOFF

    Senator Ossoff. Thank you, Senator Portman, and thank you 
to the Inspectors General for your service, your diligent work, 
for joining us today.
    I appreciate this discussion of the legislation pending 
before the Committee. I also want to drill down on a couple of 
specific issues within your respective areas of responsibility 
that you have identified as possible targets for reform 
legislation or change of practice in the Executive Branch.
    Mr. Horowitz, thank you for your collaboration and 
communication with my office as we have developed bipartisan 
legislation to reform the security camera systems in Bureau of 
Prisons (BOP) facilities. I would note that that legislation 
passed the Senate last night.
    You have also made recommendations with respect to single-
cell confinement for incarcerated persons with mental illness 
and recommendations with respect to pharmaceutical purchases by 
BOP facilities and cost of outside medical care. Could you 
briefly outline those recommendations to the Committee?
    Mr. Horowitz. Certainly, Senator, and I also noted that the 
bill passed last night that will, I think, have a potentially 
important impact on the prison camera system.
    With regard to single-celling of inmates, we identified 
significant concerns with how it impacted individuals' mental 
health at the BOP, the BOP's policies for how to deal with 
inmates who were disruptive. This is what it involved. It 
involved individuals who were disruptive and who the BOP put in 
special housing units, and in some instances, single-celled 
them. That is something the BOP says it does not look to do, 
that it does not put individuals in solitary confinement, yet 
we identified numerous instances where that occurred.
    We made a variety of recommendations that the BOP agreed 
with. As I sit here today, Senator, I do not know the status of 
those but I can certainly follow up with you on that.
    On the pharmaceutical side and the cost side, we have 
issued a number of reports identifying how the BOP has not 
taken the steps it could take to reduce some of its costs so 
that it could save money in various areas that it is spending, 
particularly on the pharmaceutical side. For instance, what we 
found is that there are four agencies that receive what is 
called the ``big four pricing,'' which is favorable pricing on 
pharmaceuticals, but that the BOP, even though it has one of 
the largest health care systems, if you will, because it has to 
take care of the 150,000 or so Federal inmates, does not get 
that preferred pricing.
    We also made the recommendation to the Department that it 
consider coming to Congress to seek legislation to also be able 
to obtain that favorable pricing, which could save tens of 
millions of dollars for the BOP.
    Senator Ossoff. Thank you, Mr. Horowitz. There has been 
some discussion at today's hearing about testimonial subpoena 
power and the ability to compel testimony from personnel who 
retire amidst or in advance of an investigation. Could you also 
comment, Mr. Horowitz, on some of the other issues related to 
retirement of Federal personnel amidst investigation, how that 
can interrupt or terminate the investigative process, and the 
implications for their personnel records when they may seek 
employment once again in the same or another Federal agency?
    Mr. Horowitz. Absolutely, Senator. It is an issue that we 
have been very concerned about for years. In fact, we issued a 
report about this about three weeks ago, concerning 
specifically how the FBI was handling adjudications of 
employees who had retired or resigned during the course of the 
investigations.
    The way the process goes is we investigate, or the FBI 
investigates, misconduct. It completes its work and sends it to 
the FBI's Office of Professional Responsibility for 
adjudication, which is to determine what penalty or discipline 
to impose. What we found is that the FBI regularly, with 
limited exception, closes its adjudication if an employee 
resigns or retires, and we found, in 2017 and 2018, that that 
occurred in more than 10 percent of the cases.
    That is concerning because, as you indicated, what happens 
is, in many instances, employees resign or retire and then 
either get hired as contractors, because they are working for a 
contracting office, or go to another government agency to work, 
or, in the law enforcement case, might go to State and local 
law enforcement.
    It is important that the FBI and other Justice Department 
agencies, and frankly across the entire Federal Government, 
that when individuals leave you have engaged in wrongdoing or 
misconduct, that those matters get adjudicated and that the 
findings be included in their personnel files. I will add, it 
also is important in the case where the individuals are found 
not to have committed misconduct, because, by the way, in those 
more than 10 percent of the cases I mentioned, in some of them 
the OIG had actually found that the individual did not engage 
in the misconduct, yet they were not cleared, formally and 
fully cleared, because the matter was not adjudicated.
    Senator Ossoff. Thank you, Mr. Horowitz.
    Mr. Winters, the bipartisan infrastructure legislation that 
passed the Senate earlier this year included some significant 
investment in passenger rail. I am a strong advocate for 
expanding passenger rail capacity in the United States, and 
particularly in the Southeast, to connect, for example, 
Atlanta-Macon-Savannah, Atlanta-Charlotte, Atlanta-Nashville, 
and additional commuter rail options for rural and suburban and 
urban communities across the State of Georgia.
    You have made recommendations, and I think alarming 
observations, with respect to the cybersecurity of Amtrak's 
train control systems. Could you please detail, in my remaining 
time, those observations and recommendations for the Committee?
    Mr. Winters. In this public setting, Senator, I cannot go 
into a lot of detail on it, and I would be happy to meet with 
you privately regarding some of those particular details on 
that.
    I will say this, that Amtrak is not alone, in terms of 
having challenges with cybersecurity. Train control systems, of 
course, are critical to the safety of passenger rail, and our 
office conducts very aggressive oversight in that space.
    Senator Ossoff. Thank you, Mr. Winters. My staff will reach 
out to yours to set up a classified forum to get into more 
detail on that. Thank you again for all of your service and 
your diligent work, and I yield back.
    Senator Portman. Thank you, Senator Ossoff. Senator Scott.

               OPENING STATEMENT OF SENATOR SCOTT

    Senator Scott. I want to thank Senator Portman for hosting 
this hearing, and I want to thank each of you for doing what 
you do. I have been up here 2 years and 9 months, and I have 
really appreciated the IGs, because I believe the oversight 
function of this Committee and Congress is really important. I 
am a business guy. I liked internal audit. I am not sure 
everybody liked it but I thought it was always helpful, to make 
sure we knew exactly what was going on.
    One of the questions I have is, how important is this 
subpoena power and is it necessary, and if each of you could 
sort of address if you have seen situations where an IG 
investigation has been hindered, obstructed, halted because 
they are not able to compel a person to submit to questioning.
    If we could start with Mr. Horowitz.
    Mr. Horowitz. Absolutely. Good to see you again, Senator, 
and thank you for the question.
    Senator Scott. Thanks for what you guys do, by the way. I 
am appreciative of it.
    Mr. Horowitz. Yes, no, and as you well know, and as I know, 
the State of Florida has the largest IG system in the country, 
and a very impressive one, and we have worked with the----
    Senator Scott. They are really helpful if you are the 
Governor.
    Mr. Horowitz. We have worked with the IGs there and they 
have been very helpful to us on the Federal level.
    On the testimonial subpoena authority, I can highlight 
high-profile matters, like our Nassar investigation, where the 
USA Gymnastics president refused a second interview with us so 
we could ask about allegations involving the FBI Special Agent 
in Charge and whether there was a conflict of interest. In the 
FISA review we could not reach certain State Department 
employees, who had left, as well as others who were never 
government employees but who had highly relevant information. I 
could go all the way back to Fast and Furious, where the U.S. 
attorney quit rather than speaking--or quit and then would not 
speak to us.
    But most importantly, I think it is in the routine, day-to-
day ones that do not get those kinds of attention that, as you 
know, we do all the time, like whistleblower retaliation 
investigations. I have authority over FBI whistleblower 
retaliation. It happens there, where people resign or retire, 
and I cannot talk to key witnesses. It happens with contractors 
who are alleged to have stolen money.
    Senator Scott. I was going to ask you about that.
    Mr. Horowitz. Contractors, stolen money. Congress gave us 
authority to do that kind of work, precisely because of your 
concern in making sure we could oversee allegations of theft 
and wrongdoing. If we cannot subpoena non-government 
employees--even if they work at the contractor, I cannot compel 
them to talk to me. I can compel a DOJ employee. I cannot 
compel one of their contractors. If they leave the contractor 
it is even harder to get that person to agree to speak with us.
    Sexual harassment cases, I could detail multiple ones where 
the employee left rather than speak to me.
    Senator Scott. You just could not pursue it.
    Mr. Horowitz. Yes. I have no authority to do it.
    Senator Scott. You have information, I guess.
    Mr. Horowitz. I have the information, the allegation. So 
are there times I can confirm it? Absolutely, through other 
mechanisms, but it takes us longer. In several of our 
investigations, by the way, like the FISA one, the Clinton 
email one, and others, people did speak to us voluntarily, but 
they waited until very late to speak to us, and so it delays 
our work.
    Even in those instances where you see us actually hearing 
from people, it could take us a lot of time to get them to 
speak to us. It is a very important tool. I very much 
appreciate, as I mentioned, that the Committee has built in 
place protections, because there should be safeguards. It 
should not be something we just run around and are able to use. 
There are three IGs who are going to have to review it. I am 
going to have to review it, as the IG at Justice. I am going to 
give it scrutiny. It is not going to go on to the three IGs 
unless I have put a lot of oversight and look into it.
    I think it is a critical tool for us. Frankly, for the 
public, they want to know what happened. They do not want to 
know that someone stiffed us and we could not figure it out, or 
I think this is what happened but I cannot definitively know 
because I cannot get the evidence.
    Senator Scott. Mr. Winters.
    Mr. Winters. Senator, one thing I have learned, after 
serving in NASA for nine years, running their investigations, 
now Amtrak, and now on the Integrity Committee, is we carefully 
decide whether or not to investigate or not. There is a reason 
that we are doing that, and it is not just some whim, that 
there is a real public interest in finding out the truth. How 
frustrating it was, in those nine years at NASA, and at Amtrak, 
and now at the Integrity Committee, that we cannot really get 
to the truth because we do not have the tools to do that. So we 
appreciate your help in that regard.
    Ms. Lerner. Yes, I just want to underscore what Kevin said. 
It is one of the most frustrating things for my investigative 
staff when we have an allegation. We had a situation once, we 
were looking into a small business that had allegedly defrauded 
NSF, and we were told by one of the employees that he had 
fabricated the timesheets that we were given to support time. 
That ended the voluntary cooperation from all of the people at 
the recipient. We had the documentary evidence of it but we 
were not able to engage with the people that could give us 
greater insights and take that case to closure.
    It is extremely demoralizing for our investigative staff 
when those matters come. There are so many benefits that could 
come from this authority, and some are internal to our own 
offices.
    Senator Scott. You there are enough safeguards that it will 
not get abused?
    Mr. Horowitz. Yes. I think the safeguards you have added 
are very important. That is clearly a very reasonable, 
legitimate concern. There are going to be a three-IG panel. IGs 
are going to have to approve these personally. There is the 
Integrity Committee, if people are abusing it, they are 
available, and these are not self-enforcing subpoenas. If a 
recipient thinks we are abusing the authority they can go to 
court, and we are going to have to convince the Justice 
Department Civil Division. We do not have litigating authority, 
so we have to tell the Justice Department Civil Division, 
``Defend this subpoena.'' There is that layer of protection as 
well. So you have to convince me, you then have to convince 
three IGs, if a recipient thinks we are doing something wrong 
and they want to go to court I have to convince the Civil 
Division at the Justice Department, and then they have to 
convince a judge.
    I do think that is the case, and I will just add, Senator, 
that the Defense Department IGs had this authority for 12 years 
now. They have used it very rarely, a handful of cases. They 
have not, to my understanding, lost a case that way. You have 
given it to me, as the Chair of the Pandemic Response 
Accountability Committee. We are overseeing $5 trillion. You 
gave it previously to the Recovery Act in 2009. In none of 
those instances has it been abused, so I think there is a track 
record as well, which is why I am concerned, and we talked 
about the sunset issue earlier. I think that track record with 
those protections on top of the concerns that IG Lerner 
mentioned earlier, I think should hopefully give comfort to 
people that this will be used appropriately. We are also going 
to notify the Attorney General, by the way.
    Ms. Lerner. Can I just build on what you said. The bottom 
line is all of us IGs, who are going to be the ones signing 
those authorities, we know what is at stake here. It has taken 
us 10 years, if we are lucky, to get this authority, and we 
know our use of it is going to be scrutinized. We are going to 
be hyper-focused on ensuring that we stay on the right side of 
the law here.
    Senator Scott. Thank you very much. I appreciate it.
    Senator Portman. Thank you, Senator Scott.
    Chairman Peters [Presiding.] Senator Padilla, you are 
recognized for your questions.

              OPENING STATEMENT OF SENATOR PADILLA

    Senator Padilla. Thank you, Mr. Chairman. I want to also 
thank each of our witnesses for our testimony and for your 
public service. As several colleagues have recognized, and I 
want to associate myself with their comments as well, 
Inspectors General play a key role in our democracy by 
independently and objectively working to expose waste, fraud, 
and abuse. Again, also acknowledged earlier in the hearing, 
Congress did pass the Inspector General Act in the wake of the 
Watergate scandal as a means of ensuring integrity and 
accountability in the Executive Branch.
    For over 40 years, Congress and the public have relied on 
the work of Inspectors General to speak truth to power. In 
recent years, those truths have included, for example, shedding 
light on the inhumane treatment of immigrants, including 
children, in Federal detention centers, and the shortcomings of 
our COVID pandemic response.
    However, administrations have exploited some gaps in law 
and undermined the efficacy of the Inspectors General, and I 
appreciate the Chairman and Ranking Member's calling attention 
to the issue.
    Now as you know, this Committee is considering legislation 
that grants Inspectors General the authority to subpoena 
witnesses for testimony. At present, most Inspectors General 
lack the authority to compel testimony from certain categories 
of individuals, including contractors and former Federal 
employees.
    My first question is for Mr. Horowitz. Mr. Horowitz, you 
highlighted in numerous investigations the lack of testimonial 
subpoena power hampered your work. You referenced, in 
particular, the investigation you led regarding the former 
administration's family separate policy, which resulted in 
nearly 4,000 family separations. Using that as a great example, 
not in a good way, how would testimonial subpoena power have 
aided your investigation of the family separation policy?
    Mr. Horowitz. Thank you, Senator, and you are right. That 
is one of the reviews that we have done and investigations that 
we have done that warrant our ability to have this authority. I 
think it is fair for us, as IGs, when we are looking at a 
policy implementation, to be able to speak to those who were 
responsible for the policy.
    In that particular case, the Zero Tolerance Policy was 
announced by then-Attorney General Sessions, we got broad 
cooperation from throughout the Justice Department, from 
employees at the Department, and if I recall correctly from 
some employees who were no longer at the Department. But we 
could not get testimony from former Attorney General Sessions, 
who was obviously very central to that discussion.
    Our inability to do that meant that there were certain 
items, certain issues, certain discussions that he was a part 
of that we were not able to get his recollection of events. 
There were few notes of some of those meetings. Our inability 
to do it diminished from our ability to fully assess what had 
occurred.
    Senator Padilla. I appreciate you sharing that, and I know 
that on the flip side there are folks who say, any subpoena 
power can also be abused. The next question is for Ms. Lerner 
and for Mr. Winters. Do you think that the legislation we are 
considering has the adequate checks to ensure that the 
authority not misused?
    Ms. Lerner. I will start. Certainly I think that requiring 
notification to the Attorney General and utilizing an IG panel, 
this is above and beyond what we ordinarily do. We are building 
on a very strong foundation that we have in place for our use 
of documentary subpoenas.
    By adding, these additional requirements of consultation 
with the Attorney General's Office and the approval of three-
person IG panel and stepped-up reporting requirements, I think 
that the evidence will be there that will clearly incentivize 
everyone to use this properly, not that I think that incentive 
is necessary.
    As I mentioned earlier, all of us, as IGs, recognize the 
stakes if we are granted this authority, and are committed to 
exercising it wisely. But we appreciate your interest in 
common-sense controls to help ensure it is not misused. Kevin.
    Mr. Winters. I agree that those controls are adequate, and 
I also add that the CIGIE's Integrity Committee, which was 
designed by Congress, is another check on abusing that 
authority.
    Senator Padilla. Great. I appreciate that. One more 
question in the time remaining, also for Ms. Lerner and Mr. 
Winters, but I will sort of tee up the question. Ensuring that 
government agencies maintain a strong cybersecurity posture has 
never been more important. I think we would all agree to that. 
Numerous breaches of government and critical infrastructure 
have inspired a significant push to ensure that our agencies 
have the resources and the information they need to effectively 
guard their systems. We also need to be sure that the agencies 
are complying with existing cybersecurity requirements.
    The question again to both of you is what role do 
Inspectors General play in enhancing the cybersecurity of 
Federal agencies, and how would the reforms that have been 
discussed today help strengthen that work?
    Ms. Lerner. Most Inspectors General are required by law to 
conduct the audits of the agencies' information systems 
securities under the Federal Information Security Modernization 
Act (FISMA). So you have our independent eyes examining the 
agencies' systems in accordance with criteria that is laid out 
by National Institute of Standards (NIST), and, I believe, 
potentially the Department of Homeland Security (DHS).
    You have our independent eyes, using independently 
determined standards, and there is a great deal of value that 
comes from that. In many instances there is penetration testing 
done as part of that process, and so that adds real insight 
into the strength of individual agencies' information systems. 
Kevin.
    Mr. Winters. I agree with Ms. Lerner's commentary on those 
tools. I will also add that within CIGIE we have a separate 
committee called the Tech Committee that we share the best 
practices of oversight of critical infrastructure information 
technology (IT) requirements.
    Senator Padilla. Thank you both for your responses, and 
thank you again for your work. Mr. Chairman, thank you.
    Chairman Peters. Thank you, Senator Padilla. Senator Rosen, 
you are recognized for your questions.

               OPENING STATEMENT OF SENATOR ROSEN

    Senator Rosen. Thank you, Chair Peters, Ranking Member 
Portman for holding this hearing. This Committee really does 
some great bipartisan work, and I am grateful to both of you to 
have the opportunity to have this discussion about something 
really important.
    As we all know, reforming how Inspectors General function 
in the Federal Government is fundamentally a good government 
issue. Simply put, IGs make government work better for the 
American people and ensure agencies are good stewards of 
taxpayer dollars. Having independent watchdogs ensures that 
Federal agencies carry out their public service missions with 
integrity and efficiency.
    I was pleased to see, in Ms. Lerner's testimony, that the 
work of the IGs and their staff generated potential taxpayer 
savings of about $53 billion in fiscal year 2020, a $17 return 
on every dollar invested in the Offices of Inspectors General. 
I am going to ask a little bit more about that in a moment.
    I really want to thank my colleagues for their serious 
attention to this issue, thank each of the witnesses for their 
public service and commitment to transparency and 
accountability, not just to the taxpayers in Nevada but, of 
course, across the country.
    I want to speak about the savings to taxpayers from IG 
oversight. Ms. Lerner, as I mentioned, I was really interested 
to read your testimony about the significant taxpayer savings 
generated by the work of IGs. Can you tell us more about how 
you track and calculate the savings to taxpayers as a result of 
the work of the IG offices?
    Ms. Lerner. Certainly. All IGs report semiannually to 
Congress on the work of our audit, and included in the tables 
in the semiannual reports are the outcomes of our audits and 
inspections that can yield funds that are questioned, as being, 
dubious expenditures, and also funds that could be put to 
better use. There are also financial returns to government that 
come from our investigative work when, for example, there are 
fines, penalties, and restitution that come through criminal 
cases, or in the case of false claims act investigations, 
potentially treble damages can be returned to the government, 
the singles going to the agency and the rest going to the 
Treasury.
    There are many ways that our work yields quantifiable 
financial returns to the government.
    Senator Rosen. I can tell you that a lot of people that are 
watching today and a lot of the questions we get is really how 
are we spending people's money, and they are worried that we 
are wasting it. Maybe, could you share with us some examples of 
wasteful spending or other inefficiencies that you have 
identified from a Federal agency, and how do you think then 
Congress can help in preventing this?
    Ms. Lerner. I think that there are so many ways that people 
can misuse money. Speaking from my own agency's experience, NSF 
is a large grantmaking agency, and what we find sometimes is 
grant recipients take NSF's money but they do not ensure that 
they use it for the purposes for which it was given. We have 
had instances where people proposed doing scientific research 
and are funded by NSF to do that, but it turns out that they 
have actually done that scientific research already and they 
are going to take our money and use it for other purposes. In 
situations like that we pursue a grant fraud investigation and 
work with prosecutors to hold those people to account for their 
misuse of government funding.
    There are other situations that do not rise to the level of 
criminal or civil wrongdoing that involve people who have 
perhaps misunderstood the rules governing the funding that they 
are receiving, and in those instances we question that through 
an audit process.
    I think that much of the improvements that are necessary in 
situations like that reside within the agency in ensuring that 
people who receive funding understand their obligations and 
understand what is expected of them, in terms of managing the 
money. But I would be happy to get back to you with more 
concrete ideas about whether there are mechanisms for Congress 
as well in that process.
    Senator Rosen. Thank you. I would look forward to that. The 
other thing is I know that you need a lot of help to do these 
investigations, so I want to talk about recruiting and 
retaining qualified IGs, because in my view, one of the most 
important services that the Council of the Inspectors General 
on Integrity and Efficiency provides is ensuring that IGs and 
their staff are qualified to do your jobs. We have talked a lot 
today about the importance of IGs who are really making sure 
that they are truly independent from the President, from agency 
heads.
    But I would like to hear a little bit more about what you 
all think about what makes someone qualified to be an IG and 
how we can ensure a pipeline of talented individuals to fill 
these jobs. Ms. Lerner, as chair of CIGIE, could you comment 
how we can improve and build on the pipeline for oversight 
talent, please?
    Ms. Lerner. I think one of the best things that we can do 
is ensure that people who are my daughters' age--I have a 
daughter in college and on in law school--that they understand 
the opportunities that are available in the oversight community 
and see us as viable career paths. We have many people who are 
going to be aging out of leadership roles, and we have to 
ensure that we have a new generation coming forward that are 
willing to engage with us. Doing a better job on our part of 
getting the word out about our mission will help us there.
    We also, in CIGIE, have a great IG Candidate Panel that 
supports both the President and agency heads in seeking to fill 
IG positions. They look at the experience. Obviously, in the 
statute, there are certain discipline-related types of 
expertise that IGs are supposed to have, but you also want to 
know that someone who is interested in being an IG understands 
how hard it can be to be independent, how difficult it can be 
to sit at the top of an organization where you are part of, but 
at a distance from, your own agency and also committed to 
engaging with Congress. You need to be responsive and 
respectful to both of those sides of your reporting 
obligations, but you need to maintain your own integrity in 
doing your work the way that it is appropriate within the IG 
Act.
    We ask a lot of questions focused on that of people who are 
interested in being IGs as well.
    Senator Rosen. Thank you, and I see my time is up, so Mr. 
Horowitz and Mr. Winters, I will submit the same question to 
you for the record, and hopefully we can build a good pipeline 
of qualified, caring people to do this very important job for 
the United States government.
    Thank you, Mr. Chair.
    Chairman Peters. Thank you, Senator Rosen. Ranking Member 
Portman, I know you had some closing questions.
    Senator Portman. Thank you very much, Mr. Chairman. I will 
not take the full time. I just want to say that I think this 
has been a terrific hearing and exchange of views, and it seems 
to me that of all the issues we have touched on, probably the 
one that has had the most potential controversy is the 
testimonial subpoenas. I appreciate your initial response, Ms. 
Lerner, to my questions and to Chairman Peters' questions on 
that.
    I think it is important to lay out what the guardrails are, 
because we have talked a lot about guardrails without getting 
into detail, and I do think there are some safeguards here that 
Senator Peters and I have included in our bill that are quite 
effective, because I do think that it is an enormous 
responsibility that the IGs would be taking on to subpoena 
people after they leave.
    No. 1, the Attorney General would review any subpoena going 
out and would be able, in that case, as I understand it, to 
provide information as to any potential conflicts with other 
investigations that might be ongoing, and I think that is 
important. That information could be considered by this panel. 
It is a panel of IGs. Three Senate-confirmed IGs would have to 
approve it. The CIGIE chair is responsible for selecting those 
three Senate-confirmed IGs to review it.
    Third, it would only be available for audits, evaluations, 
inspections, and investigations that the IG was undertaking, so 
not some fishing expedition, and also would have to be 
reasonably related to that case. Fourth, CIGIE was being asked 
to issue standards, which they have done before in other areas, 
and those standards, I think, would be consistent with 
standards we have laid out before, including that it be 
reasonably related.
    And fifth, there would be a congressional reporting 
requirement. Now these are semiannual reports to Congress, so 
it is not a report prior to the issuance. But it is a report to 
Congress to let us know how it is working and what is going on, 
and Ms. Lerner, you talked about that earlier as maybe a 
potential way for Congress to be able to understand without 
having a sunset put into the legislation itself.
    Finally, I would just say, and Mr. Horowitz, you mentioned 
this earlier this morning, that people still have access to the 
courts, with regard to these subpoenas.
    Anyway, Mr. Chairman, I appreciate you letting me do that. 
I think our bill is balanced and I think it is a good way to 
ensure independence of IGs but also ensure that these 
investigations can continue. Thank you.
    Chairman Peters. Thank you, Ranking Member Portman, and I 
agree. I look forward to moving it forward.
    Mr. Horowitz. Senator, can I just comment briefly?
    Chairman Peters. Absolutely.
    Mr. Horowitz. OK. Because I just want to expand on one of 
the items you mentioned, which is AG review. As the Justice 
Department IG, and I have now been IG under five different 
Attorneys General, that has meaning, even though it is not a 
veto, for example.
    I should just note, we, as IGs, in our law enforcement 
responsibilities and our investigative responsibilities, work 
regularly with the Justice Department prosecutors and 
leadership. The fact that the Attorney General would come into 
one of the IGs who wanted to issue a subpoena and say, ``If you 
issue that subpoena it could cause is a problem with an ongoing 
criminal investigation, civil matter, or national security 
matter,'' which would probably be a rare instance, the former 
might be, I cannot imagine a scenario where we would not say we 
are not looking to interfere with anything that you are doing, 
in terms of a criminal or civil case.
    I think that is actually a very important process, and I 
appreciate you mentioning that, Senator, because I think that 
is of great significance.
    Chairman Peters. Thank you. Senator Hawley, you are 
recognized for your questions.
    Senator Hawley. Thank you very much, Mr. Chairman. Thanks 
for waiting for me, and thanks to the witnesses for being here 
today. It is good to see all of you.
    Ms. Lerner, I want to start with you, if I could. Are you 
familiar with the report from WilmerHale, their independent 
investigation regarding allegations of misconduct by three DHS 
OIG employees regarding the nomination of Dr. Cuffari?
    Ms. Lerner. I am aware of the report.
    Senator Hawley. Have you read it?
    Ms. Lerner. A very heavily redacted version.
    Senator Hawley. My office has been contacted by multiple 
whistleblowers who allege widespread misconduct, including, I 
am afraid, you, and I want to give you the chance to respond to 
those. I always take whistleblower complaints very seriously, 
and they pointed me to the WilmerHale report, which I have now 
read, which I have to say is very disturbing. I mean, for those 
who do not know, it is 108 pages here, 70 interviews conducted, 
42,000 documents reviewed. What WilmerHale found is that a 
number of DHS OIG employees improperly interfered in the 
Presidential nomination and Senate confirmation process 
regarding Dr. Cuffari to be the IG at DHS.
    WilmerHale notes, at the outset of their investigation, or 
the outset of their report, rather, that, of course, any 
citizen has the right to question a Presidential nomination in 
their personal capacity. Federal employees, in their capacity 
as private citizens, have a First Amendment right to express 
their political opinions and may contact lawmakers to do so, 
and, of course, that is very important.
    They go on. ``However, it is a misuse of authority for a 
Federal employee to use his or her public office to interfere 
with a Presidential nomination or the Senate confirmation 
process.'' Then they say, ``Federal employees should not use 
their government resources, including the email system or 
access to lawmakers or other government officials, for personal 
gain or for any other unauthorized purposes.''
    WilmerHale further reports, in their investigation, 
following their investigation, that these individuals who were 
opposed to Dr. Cuffari's nomination within DHS OIG came to you, 
Ms. Lerner, to discuss the nomination. They wrote to you saying 
that they had a sensitive matter related to the DHS IG nominee 
to discuss. You all agreed to speak on the phone, and following 
the conversation Ms. Costello, one of the complainants, sent 
you a link to a report regarding California Coast University. I 
guess the complaint here was that Dr. Cuffari's Ph.D. was no 
from a suitably prestigious university.
    During the interview, Ms. Costello spoke to Ms. Lerner 
about Dr. Cuffari's nomination, stated they were doing so 
because it was in the best interest of the agency. Ms. Lerner 
agreed that they had an obligation to protect the organization 
and figure out whether others knew that Dr. Cuffari's degree 
was issued by a diploma mill.
    What WilmerHale has found here is that you were on 
government property at the time, using government resources, on 
government time, that you encouraged what WilmerHale concludes 
was a serious interference with the Presidential nomination 
process and the Senate confirmation process, and a pretty 
serious misuse of government resources.
    I know you did not sit for an interview. WilmerHale said 
they tried to interview you and you would not sit for an 
interview. But we have you here. These are serious allegations. 
I thought I would give you a chance to respond.
    Ms. Lerner. I appreciate you giving me the chance to do 
that. The most that I can say right now is that statement of 
the conversation is not consistent with my recollection of it.
    Senator Hawley. So you deny that you encouraged them to 
spread around complaints, using government resources, that Dr. 
Cuffari was unqualified for the position, that his degree was 
issued by a diploma mill?
    Mr. Horowitz. Senator, may I jump in for a second?
    Senator Hawley. I would like an answer to my question.
    Ms. Lerner. I did not encourage--I did not take the actions 
as described in the statement made by Ms. Costello.
    Senator Hawley. Did you improperly use government resources 
to interfere with the Presidential nomination----
    Ms. Lerner. No.
    Senator Hawley [continuing]. Senate confirmation process?
    Ms. Lerner. I did not.
    Senator Hawley. Did you use any government resources--
email, telephone, government property? Did you work on this 
project on government time?
    Ms. Lerner. In my capacity as Vice Chair, and Michael can 
speak to this as well, in his capacity as Chair, we would 
frequently be called by individuals working in OIG offices who 
had questions or concerns that they thought that we could shed 
light on, and we would endeavor to answer those questions.
    We take calls from people who have a concern, and try to 
steer them in the right direction, and that is all that I did 
here with these individuals. I think that is consistent with 
our obligation as leaders of CIGIE, and, at no point was I 
trying to undermine the nomination of anyone for a PAS 
position.
    Senator Hawley. Why did CIGIE not open an investigation 
into these allegations? Why did there have to be an outside 
investigation, which found evidence of wrongdoing?
    Ms. Lerner. That is a question best directed to the 
Integrity Committee, because----
    Senator Hawley. It was part of your decision, was it not, 
not to open an investigation?
    Ms. Lerner. No. I am not a member of the Integrity 
Committee, and the leadership of CIGIE is purposefully separate 
from the Integrity Committee, to preserve its independence to 
conduct investigations of OIG folks.
    Senator Hawley. When the report says that it is a misuse of 
authority for a Federal employee to use his or her office to 
interfere with the nomination or confirmation process and that 
Federal employees should not use their government resources, 
including email systems or access to lawmakers or other 
government officials, for any unauthorized purpose, you are 
saying definitively, for the record, under oath, you did not 
ever do any of those things?
    Ms. Lerner. I did not undermine anyone's nomination for a 
PAS position.
    Senator Hawley. You did not use the email system, access to 
lawmakers, or any other government resources for any 
unauthorized purpose?
    Ms. Lerner. I used the email systems to respond to 
questions from individuals about a situation in their office, 
and just attempt to steer them in the right direction and 
provide guidance to them as they confronted a challenge. That 
is not, in my view, inconsistent with my obligations as a 
public servant.
    Senator Hawley. I am disappointed that we are here and that 
this is, frankly, it has come to this impasse that we have this 
report from WilmerHale that is quite extensive and quite 
lengthy. You did not sit for an interview with them. They were 
not able to get your views on any of this. I noticed neither 
did you, Mr. Horowitz.
    I frankly think it is very disappointing, and I think the 
fact that we now have multiple whistleblowers coming to us 
about this series of events, I mean this is harrowing reading, 
to be honest with you, and it is disturbing reading that this 
would be happening. I want to say, I am going to try to get to 
the bottom of it, but I am disappointed that it has come to 
this, and in this setting.
    Ms. Lerner. I appreciate your concern, but I would say that 
Mr. Horowitz and I engaged with people on both sides of that 
situation who had concerns and wanted to protect both the 
privacy of both of the entities that we were involving so that 
people would feel comfortable coming to us for counseling in 
situations like that.
    Mr. Horowitz. Senator, let me respond to that, because the 
serious issue--Joe Cuffari, by the way, used to work in the DOJ 
OIG, as you may know. He was an agent. I talked with Joe both 
while his confirmation was pending and after he became IG, and 
he can explain to you however much he would like. I would be 
happy for him to do that. How much time I spent with him, as 
did Allison on several of those calls, to help him as the IG, 
to get settled in, and to deal with some of the challenges he 
was dealing with.
    In terms of that, I also talked to him, actually, as he can 
describe to you, if you would like, and I think it may be even 
in that report, when he wanted to move forward and sought to 
move forward with the allegations and how to deal with them.
    With regard to WilmerHale's reach-out to us, and to me in 
particular, we engaged with the lawyers and asked them to give 
us some idea of what they were looking to speak to us about. As 
Ms. Lerner just indicated, as CIGIE Chair and as Vice-Chair, I 
regularly receive calls from IGs, from others in the IG 
community, to give them advice, guidance, views on how they can 
proceed. Some of it was as routine as career advice. Some of it 
was far more significant.
    The question I had for WilmerHale lawyers was, what 
information, generally, in the areas that they were looking at 
and to get at, because we do have an obligation to ensure that 
discussions we have, like I had with Mr. Cuffari, are 
maintained in confidence when the individual who comes to us 
would like them to be in confidence, and then assess whether 
there is a need for the investigators to have that information. 
I have to understand a little bit more before I just sit for an 
interview as CIGIE chair, and be asked about a variety of 
conversations that I have had with people who come to me.
    Frankly, view it again as to the IG Act provisions that are 
in the law, that as DOJ IG--let me put it this way. As DOJ IG, 
if those individuals had come to me, there is an IG Act 
provision that requires confidentiality. I have to think long 
and hard about that before making a decision on what to speak 
to. I never ruled it out. But the question was, until the end, 
until there was an unwillingness to have that discussion.
    But that was my concern, is that we did not have a dialog, 
and I was not comfortable at the time knowing what I was to 
speak to, because frankly, I did not have first-hand knowledge 
of a lot of what I ultimately ended up reading about in the 
WilmerHale report at the time they reached out to me. I was not 
familiar with it.
    Senator Hawley. My time has long expired here, and the 
Chairman has been very indulgent. I will have some additional 
follow-up questions for you, for the record.
    I cannot adjudicate your dispute with WilmerHale as to why 
you did or did not sit for an interview. I am just noting a 
fact, that they say that you had relevant information. Even 
particularly you, Ms. Lerner, likely had information about 
these discussions and would have been able to shed light. You 
did not sit for an interview. that is your prerogative.
    But the fact is this is serious. This is serious, what I 
read in this report. I hope this is not normal. It sure as heck 
should not be, and I think we have some more work to do to get 
answers here.
    Thank you, Mr. Chairman.
    Mr. Horowitz. Senator, I am happy to come meet with you and 
talk to you in person.
    Ms. Lerner. As am I.
    Chairman Peters. Mr. Winters, did you have any anything to 
add?
    Ms. Lerner. Mr. Horowitz's recollection of the back-and-
forth with WilmerHale Counsel, yes, is accurate, and I share 
his willingness to come and engage with you more on this.
    Chairman Peters. Thank you, Senator Hawley. I want to thank 
again our witnesses for joining us here today and for our 
Committee Members for engaging in this critical issue.
    We have an opportunity before us to advance some of the 
most significant reforms to strengthen independent Inspector 
General oversight in a decade. The legislation that Senator 
Portman and I have been working on has strong bipartisan as 
well as bicameral support, and I am grateful for the leadership 
of colleagues like Senator Grassley and Senator Hassan, who 
have long championed independent oversight, as well as the work 
of Chairwoman Maloney, who is leading this reform effort over 
in the House.
    The bipartisan legislation pending before our Committee 
would take important steps to protect the IG from undue 
interference and ensure that they have the tools to conduct 
effective oversight for American taxpayers. Many of the 
provisions included in the bill have received strong bipartisan 
support in both the House and the Senate in recent years, and I 
hope to build on that momentum with the legislation that will 
be before us shortly.
    I appreciate my colleagues' diligence on this important 
issue and I look forward to continuing to work together to 
harness the opportunity before us to pass these bipartisan 
reforms and strengthen the roles of our nation's independent 
watchdogs.
    The record for this hearing will remain open for 15 days, 
until 5 p.m. on November 5, 2021, for the submission of 
statements and questions for the record.
    This hearing is now adjourned.
    [Whereupon, at 12:23 p.m., the hearing was adjourned.]

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