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35–599PS 2008

THE NASA ADMINISTRATOR’S SPEECH TO

OFFICE OF INSPECTOR GENERAL STAFF, THE

SUBSEQUENT DESTRUCTION OF VIDEO RECORDS,

AND ASSOCIATED MATTERS

HEARING

BEFORE THE

SUBCOMMITTEE ON INVESTIGATIONS AND

OVERSIGHT

COMMITTEE ON SCIENCE AND

TECHNOLOGY

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 24, 2007

Serial No. 110–33

Printed for the use of the Committee on Science and Technology

(

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

(II)

COMMITTEE ON SCIENCE AND TECHNOLOGY

HON. BART GORDON, Tennessee, Chairman

JERRY F. COSTELLO, Illinois

EDDIE BERNICE JOHNSON, Texas

LYNN C. WOOLSEY, California

MARK UDALL, Colorado

DAVID WU, Oregon

BRIAN BAIRD, Washington

BRAD MILLER, North Carolina

DANIEL LIPINSKI, Illinois

NICK LAMPSON, Texas

GABRIELLE GIFFORDS, Arizona

JERRY MCNERNEY, California

PAUL KANJORSKI, Pennsylvania

DARLENE HOOLEY, Oregon

STEVEN R. ROTHMAN, New Jersey

MICHAEL M. HONDA, California

JIM MATHESON, Utah

MIKE ROSS, Arkansas

BEN CHANDLER, Kentucky

RUSS CARNAHAN, Missouri

CHARLIE MELANCON, Louisiana

BARON P. HILL, Indiana

HARRY E. MITCHELL, Arizona

CHARLES A. WILSON, Ohio

RALPH M. HALL, Texas

F. JAMES SENSENBRENNER JR.,

Wisconsin

LAMAR S. SMITH, Texas

DANA ROHRABACHER, California

KEN CALVERT, California

ROSCOE G. BARTLETT, Maryland

VERNON J. EHLERS, Michigan

FRANK D. LUCAS, Oklahoma

JUDY BIGGERT, Illinois

W. TODD AKIN, Missouri

JO BONNER, Alabama

TOM FEENEY, Florida

RANDY NEUGEBAUER, Texas

BOB INGLIS, South Carolina

DAVID G. REICHERT, Washington

MICHAEL T. MCCAUL, Texas

MARIO DIAZ-BALART, Florida

PHIL GINGREY, Georgia

BRIAN P. BILBRAY, California

ADRIAN SMITH, Nebraska

VACANCY

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

HON. BRAD MILLER, North Carolina, Chairman

JERRY F. COSTELLO, Illinois

EDDIE BERNICE JOHNSON, Texas

DARLENE HOOLEY, Oregon

STEVEN R. ROTHMAN, New Jersey

BRIAN BAIRD, Washington

BART GORDON, Tennessee

F. JAMES SENSENBRENNER JR.,

Wisconsin

DANA ROHRABACHER, California

TOM FEENEY, Florida

MICHAEL T. MCCAUL, Texas

RALPH M. HALL, Texas

DAN PEARSON Subcommittee Staff Director

EDITH HOLLEMAN Subcommittee Counsel

JAMES PAUL Democratic Professional Staff Member

DOUG PASTERNAK Democratic Professional Staff Member

KEN JACOBSON Democratic Professional Staff Member

TOM HAMMOND Republican Professional Staff Member

STACEY STEEP Research Assistant

(III)

C O N T E N T S

May 24, 2007

Page

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

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

Opening Statements

Statement by Representative Brad Miller, Chairman, Subcommittee on Investigations and Oversight, Committee on Science and Technology, U.S. House

of Representatives ................................................................................................ 6

Written Statement ............................................................................................ 7

Statement by Representative F. James Sensenbrenner, Jr., Ranking Minority

Member, Subcommittee on Investigations and Oversight, Committee on

Science and Technology, U.S. House of Representatives .................................. 8

Written Statement ............................................................................................ 9

Panel 1:

Ms. Evelyn Klemstine, Assistant Inspector General for Audits, NASA Office

of Inspector General and Mr. Kevin Winters, Assistant Inspector General

for Investigations, NASA Office of Inspector General

Joint Oral Statement ....................................................................................... 10

Discussion

April 10, 2007 Meeting ........................................................................................ 12

Destruction of Documents ................................................................................... 18

Panel 2:

Mr. Michael C. Wholley, General Counsel, National Aeronautics and Space

Administration (NASA)

Oral Statement ................................................................................................. 21

Written Statement ............................................................................................ 25

Mr. Paul Morrell, Chief of Staff, National Aeronautics and Space Administration (NASA)

Oral Statement ................................................................................................. 27

Written Statement ............................................................................................ 30

Discussion

More on the Destruction of Documents .............................................................. 33

More on the April 10th Meeting ......................................................................... 36

More on the Destruction of Documents .............................................................. 39

Mr. Wholley’s Relationship With Mr. Cobb ....................................................... 45

Appendix: Additional Material for the Record

[#1], E-mail: Evelyn Klemstine to Thomas Howard, cc to Dahnelle Payson

re Areas of concern expressed by the staff related to VITS, 4/23/2007 ........... 48

[#2], E-mail: Catherine Schneiter to Evelyn Klemstine re RE: Tape recalled,

4/11/2007 ............................................................................................................... 51

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

19/2007 .................................................................................................................. 53

Page

IV

[#4], E-mail: Catherine Schneiter to Daniel Birnbaum re RE: Congressional

request, 4/20/2007 ................................................................................................ 54

[#5], E-mail: David Gandrud to Catherine Schneiter re RE: Records Request,

4/19/2007 ............................................................................................................... 56

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

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

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

[#9], Memorandum for the record: Keith T. Sefton’s dialogue with Mr. Fred

Berger, NASA ViTS coordinator concerning ViTS held on 4.10.2007; 5/

07/2007 .................................................................................................................. 63

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

[#11], E-mail: Catherine Donovan to Michael Wholley, cc: Keith Thomas

Sefton, re My thoughts on IC letter, 3/22/2007 ................................................. 67

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

2007 ....................................................................................................................... 69

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

[#14], E-mail: Michael Wholley to Michael Griffin, Paul Morrell, Shana Dale

re Round ‘‘whatever,’’ 3/29/2007 .......................................................................... 75

[#15], E-mail: Michael Griffin to Michael Wholley, Paul Morrell, Shana Dale

re RE: Round ‘‘whatever,’’ 3/29/2007 .................................................................. 78

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

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

[#18], E-mail: Michael Wholley to Michael Griffin, Shana Dale, cc: Paul

Morrell re Bullet Points, 4/03/2007 .................................................................... 85

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

[#19], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc: Richard

Sherman re letter to Griffin, 4/19/2007 .............................................................. 90

[#20], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc: Richard

Sherman re FW: letter to Griffin, 4/19/2007 ...................................................... 93

[#21], E-mail: Andrew Falcon to Paul Morrell, Michael Wholley, Keith Sefton,

Richard Sherman re Response to Congressman Miller, 4/19/2007 .................. 95

[#22], E-mail: Shari Feinberg to Michael Wholley, cc: Keith Sefton, Andrew

Falcon re Records memo, 4/23/2007 .................................................................... 96

[#23], E-mail: Feinberg Shari to Michael Wholley, cc: Keith Sefton, Andrew

Falcon re Revised Records Memo for your review!, 4/25/2007 ......................... 103

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

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

[#26], E-mail: Keith Sefton to David Mould, cc: Paul Morrell, Michael

Wholley, Jason Sharp re RE: FOLLOWUP, 4/27/2007 ..................................... 115

[#27], E-mail: Andrew Falcon to Paul Morrell, Keith Sefton re Draft letter,

4/27/2007 ............................................................................................................... 117

[#28], E-mail: Thomas Howard to Michael Wholley, Keith Sefton re RE:

Copy of IG meeting, 4/28/2007 ............................................................................ 120

[#29], E-mail: Fred Berger to Keith Sefton, cc: Harold Stewart, Keith Sefton,

Len Japngie, Les Newell re RE: April 10th Recordings, 4/30/2007 ................. 121

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

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

(1)

THE NASA ADMINISTRATOR’S SPEECH TO OFFICE OF INSPECTOR GENERAL STAFF, THE

SUBSEQUENT DESTRUCTION OF VIDEO

RECORDS, AND ASSOCIATED MATTERS

THURSDAY, MAY 24, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT,

COMMITTEE ON SCIENCE AND TECHNOLOGY,

Washington, DC.

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room

2318 of the Rayburn House Office Building, Hon. Brad Miller

[Chairman of the Subcommittee] presiding.

2

3

HEARING CHARTER

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

COMMITTEE ON SCIENCE AND TECHNOLOGY

U.S. HOUSE OF REPRESENTATIVES

The NASA Administrator’s Speech to

Office of Inspector General Staff, the

Subsequent Destruction of Video Records,

and Associated Matters

THURSDAY, MAY 24, 2007

10:00 A.M.–1:30 P.M. 2318 RAYBURN HOUSE OFFICE BUILDING

Background

Since early 2006, Robert Cobb, the Inspector General of the National Aeronautics

and Space Administration (NASA), has been under investigation for allegations of

misconduct. After a review of 79 allegations, in early 2007, the Integrity Committee

of the President’s Council on Integrity and Efficiency (PCIE), an organization of

agency inspectors general, issued a report finding that Mr. Cobb had abused his authority and demonstrated the appearance of a lack of independence from the agency’s top officials, particularly Sean O’Keefe, NASA’s former administrator. Most of

the allegations came from current and former employees of NASA’s Office of Inspector General (OIG).

The Committee has been tracking this investigation since 2006 and made repeated requests for the final report and its supporting documentation over a severalmonth period until it was released to the Committee in late March of 2007. On April

2, 2007, Chairmen Miller and Gordon called for the removal of Mr. Cobb. Since that

time, the Committee, along with the Senate Subcommittee on Space, Aeronautics,

and related Sciences has been conducting interviews in preparation for hearings on

the Cobb investigation.

The criteria used by the PCIE are set forth in Executive Order 12993, which includes an ‘‘abuse of authority’’ as one of the allegations that must be investigated.

The PCIE also has developed the ‘‘Quality Standards for Federal Offices of Inspector

General,’’ which all IGs are required to meet. They include integrity, objectivity,

independence, professional judgment and confidentiality. Independence is defined as

a ‘‘critical element of objectivity. Without independence, both in fact and in appearance, objectivity is impaired.’’

The PCIE’s Integrity Committee, which conducted the investigation, recommended

action be taken against Mr. Cobb up to and including dismissal. That recommendation was sent to Clay Johnson III, the head of PCIE and deputy director for management of the Office of Management and Budget for further action. Mr. Johnson

sent the report on to Michael Griffin, NASA’s Administrator, and asked him to propose a corrective action plan for Mr. Cobb.

Griffin turned the task of studying the hundreds of pages of material and crafting

a set of potential actions over to his General Counsel, Michael Wholley. Mr. Wholley

independently decided to apply his own standards to the work of the HUD Inspector

General and re-judge the case based on that report. This was completely outside the

scope of the assignment to Mr. Griffin contemplated in the Executive Order. Mr.

Wholley, asking what laws had been violated, determined that the Integrity Committee got it all wrong when they declared Mr. Cobb to have abused the authority

of his office. In fact, Mr. Wholley seemed hard pressed to find that Mr. Cobb had

done anything wrong at all. Notably, Mr. Wholley has developed a mentor-prote ́ge ́

relationship with Cobb and so his actions bear out the finding of the Integrity Committee that at least the appearance of a lack of independence exists. Mr. Wholley

was blind to that situation as he went about his self-defined task.

Upon the suggestion of Mr. Johnson, the plan for dealing with Mr. Cobb included

a meeting between Mr. Griffin and the staff of the Office of Inspector General (OIG)

to inform them that Mr. Griffin had reviewed the Integrity Committee’s Record of

Investigation and taken ‘‘the actions that I believe are necessary to address the

4

ROI’s findings.’’ In a letter to Mr. Johnson, Mr. Griffin also said that he would ‘‘listen to any concerns that may exist among the staff and. . .express my support for

a strong and effective Office of Inspector General.’’

In early April, Mr. Griffin made public statements questioning the conclusions of

the PCIE report. He claimed to have reviewed the report himself—although there

is no evidence of that—and found no evidence of an ‘‘abuse of office’’ ‘‘lack of integrity’’ or ‘‘actual conflict of interest’’ or ‘‘improprieties.’’ He expressed his support for

Mr. Cobb, said he would not recommend his removal, and that Mr. Cobb’s ‘‘impartiality’’ was not in question. Mr. Griffin said there were examples of ‘‘overly harsh

treatment of subordinates; verbal treatment’’ by Mr. Cobb, and that he would recommend that Mr. Cobb take management courses at the Federal Executive Institute

every year, have a management coach, and report on his progress to NASA’s Deputy

Administrator.

The ‘‘all-hands’’ mandatory meeting was scheduled for April 10 at 2:30 p.m. Before

the meeting, several persons expressed concern about the NASA Administrator’s

prior supportive statements concerning Mr. Cobb and questioned whether holding

such a meeting with the OIG staff gave the appearance that the Administrator was

asserting control over the independent Inspector General’s office.

Because OIG employees are located at headquarters and several NASA centers,

the meeting was videoconferenced. Prior to that meeting, Paul Morrell, Mr. Griffin’s

Chief of Staff, said he told the contract employee running the Video Teleconferencing Service (ViTS) center not to record the session, although the employee does

not recall that directive. However, during the planning for the meeting, a NASA

public affairs officer requested a DVD be made of the meeting, and when the meeting was actually held, there were multiple signs (as many as 8) noting that the session was being recorded. It was subsequently learned that at least two of the NASA

centers also videotaped the session so that employees who were not present could

view the meeting. This appears to be a standard practice in NASA IG staff ‘‘all

hands’’ videoconferences.

The Meeting

Mr. Griffin addressed the meeting, which was also attended by Mr. Cobb. According to written reports from attendees of the meeting, Mr. Griffin went far beyond

a simple recitation of his support for Mr. Cobb, the facts of Mr. Cobb’s corrective

action plan, and an assurance of independence for the OIG’s office. Mr. Griffin indicated that he was not interested in the OIG’s program or operational audits because

the OIG staff did not have the technical skills to audit in that area, that OIG auditors should not be questioning NASA management decisions, and that he would not

pay attention to findings that didn’t result in savings in the hundreds of millions

of dollars. Attendees at the meetings also indicated that it was inappropriate for Mr.

Cobb to be at the meeting if open and honest dialogue was the goal.

Destruction of the Video Records of the Meeting

Early on April 11, Mr. Griffin’s Chief of Staff called the ViTS center employee.

At the request of the Public Affairs Office, the employee had created an original

DVD and four copies, which were to be provided to various offices. Mr. Morrell told

the ViTS employee that this meeting was not to be recorded and to get back the

DVD and the copies. The ViTS employee did so, and also called all of the centers

and told them to destroy the copies that they had. In a dramatic moment, the ViTS

person at one center actually destroyed a videotape by beating it with a shelf board.

Mr. Morrell claims that he never even asked about whether the Centers might have

tapes; the ViTS staffer remembers this somewhat differently and is fairly confident

he was following Mr. Morrell’s orders when he asked the Center ViTS people to collect and destroy tapes.

At headquarters that morning, Mr. Morrell collected all of the DVDs and then

gave them to Michael Wholley, NASA’s General Counsel. Some time later, Mr.

Wholley destroyed the DVDs by breaking them up with his hands. Mr. Wholley later

told Committee staff that he did so because he wanted to be sure that no one could

obtain the DVD by filing a request under the Freedom of Information Act (FOIA).

Congressional Request

On April 18, the Committee learned of the April 10 meeting and the possible destruction of the video recordings of that meeting and sent letters to Administrator

Griffin and Inspector General Cobb requesting a copy of the videotape and all

records related to it. When the response stated that all copies had been destroyed,

the Committee asked for all records relating to Mr. Griffin’s review of the PCIE report, the April 10 meeting with the OIG staff and the destruction of the video

records.

5

Committee Investigation

Ever since Mr. Johnson put the responsibility on Mr. Griffin to develop and implement a corrective action plan for NASA’s Inspector General, there have been concerns in Congress and elsewhere that it would be difficult for Mr. Cobb to maintain

his independence from NASA management when he owed his continuance as

NASA’s IG to Mr. Griffin and his General Counsel. This is of particular concern as

one of the substantiated allegations was that Mr. Cobb did not demonstrate the appearance of a lack of independence of the prior NASA Administrator and General.

Staff review of the responsive documents and follow-up interviews indicate a disturbing lack of concern by NASA management about maintaining the independence

of its Office of Inspector General.

The actions by staff at the highest levels of NASA to physically destroy records

of a questionable meeting between the Administrator and the OIG staff points to

a serious lack of public accountability. It is unprecedented for a General Counsel

to personally and knowingly destroy agency records so that they cannot be obtained

by Congress or the public. Apologies referring to the use of ‘‘stupid pills’’ are not

acceptable for a person in such a position of public trust and responsibility.

In its hearing, the Committee will hear from witnesses personally involved in both

the meeting and the destruction of its record.

Witnesses:

The first two witnesses are current, high-ranking staff of the NASA Inspector

General’s office. They will testify as to the impact of Dr. Griffin’s address to the OIG

staff. They also have insights into the destruction of tapes.

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

Inspector General

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

of Inspector General

The second panel of witnesses can speak to the disposition of the Cobb case by

NASA when it was presented to the agency by PCIE. They can also speak to the

relationship between Cobb and Wholley. Finally, they can address the manner and

motive for destroying the recordings of Administrator Griffin’s appearance before

the IG staff.

• Michael Wholley, General Counsel, NASA

• Paul Morrell, Chief of Staff, NASA

6

Chairman MILLER. Good morning. The hearing will come to

order.

In January, the Integrity Committee of the President’s Council

on Integrity and Efficiency, PCIE, completed an investigation into

allegations of misconduct by Robert ‘‘Moose’’ Cobb, the Inspector

General of the National Aeronautics and Space Administration,

NASA.

The report was damning. The report found that Mr. Cobb abused

his authority and showed a lack of the appearance of independence

from NASA management, and concluded that discipline up to and

including removal was appropriate. After reading the report, Chairman Gordon and I of this committee, and Senator Bill Nelson, the

Chair of the counterpart committee in the Senate, called upon

President Bush to remove Mr. Cobb as Inspector General of NASA.

Mr. Cobb continues to serve at the pleasure of the President. It

apparently continues to please President Bush for Mr. Cobb to

serve as the NASA Inspector General. This committee, this subcommittee, will hear from Mr. Cobb and others in the next weeks

concerning the allegations of misconduct that were the subject of

the PCIE report.

As damning as the report was, it appears on closer examination

that the report was overly generous. The subject of this hearing is

the conduct of NASA officials in handling the Cobb matter. Specifically, this hearing concerns a meeting with the staff of the Office

of Inspector General of NASA, a meeting that all staff members

were expected to attend, a meeting at which Mr. Cobb sat beside

Administrator Michael Griffin while Administrator Griffin disputed

the findings of the PCIE report. NASA officials certainly have

known that such a meeting would only further the appearance of

a lack of independence by the NASA Inspector General.

In his prepared statement today, Michael Wholley, the General

Counsel of NASA, is in high dudgeon about the accounts of NASA

employees who attended the meeting, which he testifies range from

the patently false to the ridiculous. He asserts that this subcommittee should be skeptical of allegations slipped under the door

or thrown over the transom, often anonymously or with the request

for anonymity. That is exactly how whistleblowers provide information to oversight committees of Congress and to Inspector Generals

acting independently, as required by statute.

We could have known for certain just exactly what happened at

that meeting, and not had to decide between wildly conflicting accounts, decide which accounts to believe, because there was a DVD

made of the meeting, and then copies were made of the DVD. Mr.

Wholley personally destroyed those tapes. A great American lawyer, Elihu Root, said that about half the practice of a decent lawyer

is telling would-be clients that they are damn fools and should

stop. That is a view of the ethical expectations of a lawyer that I

learned in law school, and it remains the expectation set forth in

the Code of Professional Responsibility.

Instead, the view within NASA apparently was that DVDs could

be destroyed absent advice that any legal arguments that the

DVDs should be preserved was ‘‘categorically fatally legally

flawed.’’ I worry that the ethical obligations of a lawyer that I

7

learned in law school are now regarded as quaint and antiquated

like the Geneva Convention.

NASA officials, Mr. Wholley and Paul Morrell, knew that there

were questions about the propriety of the meeting. They knew that

the Cobb matter was a subject of interest by the oversight committees of the House and the Senate. They knew that the DVD of the

meeting would be subject to disclosure, and Mr. Wholley made a

conscious decision to destroy the DVDs. It is impossible not to conclude the worst from that conduct.

At this time, the Chair recognizes Ranking Member Sensenbrenner for his opening statement.

[The prepared statement of Chairman Miller follows:]

PREPARED STATEMENT OF CHAIRMAN BRAD MILLER

Good morning. In January, the Integrity Committee of the President’s Council on

Integrity and Efficiency (PCIE) completed an investigation into allegations of misconduct by Robert ‘‘Moose’’ Cobb, the Inspector General of the National Aeronautics

and Space Administration (NASA). The report was damning.

The report found that Mr. Cobb abused his authority and showed a lack of the

appearance of independence from NASA management, and concluded that discipline

‘‘up to and including removal’’ was appropriate. After reading the report, Chairman

Gordon and I and Senator Bill Nelson, the Chair of the counterpart committee in

the Senate, called upon President Bush to remove Mr. Cobb and Inspector General

of NASA.

Mr. Cobb serves at the pleasure of the President, and it apparently still pleases

President Bush for Mr. Cobb to serve as the NASA Inspector General.

This subcommittee will likely hear from Mr. Cobb and others in the next few

weeks concerning the allegations of misconduct that were the subject of the PCIE

report. As damning as the report was, it appears on closer examination that the report was overly generous.

The subject of this hearing is the conduct of NASA officials in handling the Cobb

matter.

Specifically, this hearing concerns a meeting with the staff of the Office of Inspector General of NASA, a meeting all staff members were expected to attend, a meeting at which Mr. Cobb sat beside Administrator Michael Griffin while Administrator

Griffin disputed the findings of the PCIE report. NASA officials certainly should

have known that such a meeting would only further the appearance of a lack of

independence by the NASA Inspector General.

In his prepared statement, Michael Wholly, the General Counsel at NASA, is in

high dudgeon about the accounts of NASA employees who attended the meeting,

which he testifies ‘‘range from the patently false to the ridiculous.’’ He asserts that

this subcommittee should be skeptical of ‘‘allegations slipped under the door or

thrown over the transom, often anonymously or with the request for anonymity.’’

That is exactly how whistle blowers provide information to oversight committees of

Congress, and to Inspector Generals acting independently as required by statute.

We could have known for certain just exactly what happened at that meeting, and

not had to decide whose wildly conflicting account to believe, because there was a

DVD made of the meeting, and then copies were made of the DVD. Mr. Wholly personally destroyed those tapes.

A great American lawyer, Elihu Root, said that ‘‘About half of the practice of a

decent lawyer is telling would-be clients that they are damned fools and should

stop.’’ That is the view of the ethical expectations of a lawyer that I learned in law

school, and it remains the expectation set forth in the Code of Professional Responsibility. Instead, the view within NASA apparently was the DVDs could be destroyed absent advice that any legal arguments that the DVDs should be preserved

was ‘‘CATEGORICALLY, . . .FATALLY, LEGALLY, FLAWED.’’

I worry that the ethical obligations of lawyers that I learned in law school are

now regarded as quaint and antiquated, like the Geneva Convention.

NASA officials, Mr. Wholly and Paul Morrell, knew that there were questions

about the propriety of the meeting, they knew that the Cobb matter was the subject

of interest by the oversight committees of the House and Senate, and they knew

that the DVD of the meeting would be subject to disclosure, and Mr. Wholly made

a conscious decision to destroy the DVDs. It is impossible not to conclude the worst

from that conduct.

8

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.

We are here today, in part, to reconstruct a meeting we should

have been able to watch. Congress relies on Inspectors General as

agency watchdogs to oversee the conduct at agencies. And let me

say, ten years ago, when I was the Chairman of the Full Science

Committee, I used Inspectors General very effectively in doing the

oversight that the Constitution and the public demands that the

Congress do.

And even though I had a very contentious relationship with then

Administrator Daniel Goldin, the Inspector General, who was also

appointed by President Clinton, maintained his fierce independence, and was able not only to give the Committee relevant information on matters of concern, but according to Mr. Goldin, these

efforts, together with others that this committee did, made NASA

a better agency.

Now, because we rely on Inspectors General so heavily, we take

allegations against them seriously, and after a year-long investigation and deliberative process, in which Congress was kept almost

entirely in the dark, the President’s Council on Integrity and Efficiency, the PCIE mentioned, too, by the Chairman, forwarded its

investigative committee’s findings on NASA’s Inspector General to

Administrator Michael Griffin.

Administrator Griffin, in concert with NASA’s senior management, reviewed the findings, and recommended that the Inspector

General attend management training courses. He forwarded his

recommendations to the Chairman of the PCIE, who adopted them.

Administrator Griffin then scheduled a meeting on April 10 with

staff from the Office of the Inspector General to explain his decision.

By several accounts, Administrator Griffin’s meeting on April 10,

with the Office of the IG further undermined the IG’s independence, and I am extremely concerned about that. As one NASA employee told Committee staff after attending the meeting, if there

was an appearance of independence before, there is none now.

Given our reliance on Inspectors General, Congress would have

benefited from reviewing a tape of that meeting. It is therefore unfortunate that these tapes were destroyed, but hopefully, through

testimony today, we can develop an accurate picture of the meeting

as possible.

I would further request the Chair, and I will be happy to sign

a letter to that effect, to refer this matter to the Justice Department for investigation, because I believe that this tape, which was

produced by a NASA employee with NASA equipment, is government property, and there are criminal penalties for the destruction

of government property.

But perhaps more unfortunately, we need to know why recordings of that meeting were destroyed. I believe in open government,

and I am very concerned to hear that a government employee was

beating a videocassette with a plank and an agency’s General

Counsel physically destroyed a stack of DVDs. The fact that these

events happened at different locations across the country, and the

fact that no copies of the recorded meeting remain, suggest a coordinated effort to destroy all record of the event.

9

This destruction also seems to have occurred with limited understanding of the applicable law, and under full awareness that Congress and specifically, this subcommittee, was investigating this

issue. I believe that personnel decisions within the Administration

should be handled by the Administration, and as such, I support

the decisions made by NASA, the PCIE, and the President, but

these decisions need to be made transparently, and they need to be

made in a way that preserves confidence in the Office of Inspector

General and our agencies’ leadership.

From the information that this subcommittee has received to

date, there is no reason to give us any confidence whatsoever in

how this matter was handled, and I hope that this hearing inspires

confidence, and will be able to restore at least a scintilla of faith

in what is going on at NASA headquarters.

Thank you.

[The prepared statement of Mr. Sensenbrenner follows:]

PREPARED STATEMENT OF REPRESENTATIVE F. JAMES SENSENBRENNER

We are here today, in part, to reconstruct a meeting that we should have been

able to watch. Congress relies on inspectors general as agency watchdogs to oversee

the conduct at agencies. As such, we take allegations against inspectors general seriously. After a year-long investigative and deliberative process, in which Congress

was kept almost entirely in the dark, the President’s Council on Integrity and Efficiency (PCIE) forwarded its Investigative Committee’s findings on NASA’s Inspector

General to NASA’s Administrator, Michael Griffin. Administrator Griffin, in concert

with NASA senior management, reviewed the findings and recommended that the

Inspector General attend management training courses. He forwarded his recommendations to the Chairman of the PCIE, who adopted them. Administrator Griffin then scheduled a meeting on April 10 with staff from the Office of the Inspector

General to explain his decision.

By several accounts, Administrator Griffin’s April 10 meeting with the Office of

the Inspector General further undermined the NASA Inspector General’s independence. As one NASA employee told Committee staff after attending the meeting, ‘‘If

there wasn’t an appearance of independence before, there is now.’’

Given our reliance on inspectors general, Congress would have benefited from reviewing a tape of that meeting. It is therefore unfortunate that the tapes were destroyed, but hopefully, through testimony today, we can develop as accurate a picture of the meeting as possible.

Perhaps more unfortunately, we also need to understand why recordings of that

meeting were destroyed. I believe in open government and I am very concerned to

hear that a government employee was beating a videocassette with a plank and an

Agency’s General Counsel physically destroyed a stack of DVDs. The fact that these

events happened at different locations across the country and the fact that no copies

of the recorded meeting remain, suggest a coordinated effort to destroy all record

of the event. This destruction also seems to have occurred with limited understanding of the applicable law and under full awareness that Congress was investigating this issue.

I believe that personnel decisions within the Administration should be handled by

the Administration. As such, I support the decisions made by NASA, the PCIE, and

the President. But those decisions need to be made transparently and they need to

be made in a way that preserves confidence in the Office of the Inspector General

and in our agencies’ leadership. Hopefully, today’s hearing will inspire that confidence.

Chairman MILLER. Thank you, Mr. Sensenbrenner.

Our first panel will not be providing written testimony or formal

opening statements, though I understand that you may be, would

like to say something extemporaneously in a moment before we actually begin with our questions.

We have asked both of them, in large part, to discuss the April

10 meeting that is at issue here, between Administrator Griffin

and the staff of NASA’s Office of the Inspector General. In reVerDate 11-MAY-2000 15:32 Jan 27, 2008 Jkt 035599 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 C:\WORKD\I&O07\052407\34599 SCIENCE1 PsN: SCIENCE1
10

sponse, the response of the staff to that meeting, and the destruction of the DVDs of the meeting.

Evelyn Klemstine is the Assistant Deputy Inspector General for

Audits at NASA. Kevin Winters is the Assistant Deputy Inspector

General for Inspections. In a senior OIG, Office of Inspector General staff meeting on April 11, Ms. Klemstine brought the concerns

of the OIG staff, that the OIG staff had raised with her about the

meeting, and subsequently, drafted a memo that set forth those

concerns.

In an interview with the Committee staff, Mr. Winters also expressed reservations about the propriety of the meeting, and said

that he was investigating the destruction of the DVD.

We want to thank both of you for being here. It is the practice

of the Subcommittee to take testimony under oath. Do either of you

have any objections to being sworn in?

Mr. WINTERS. No, Mr. Chairman.

Ms. KLEMSTINE. No, Mr. Chairman.

Chairman MILLER. Okay. You also have the right to be represented by Counsel. Are either of you represented by Counsel

today?

Mr. WINTERS. No, Mr. Chairman.

Ms. KLEMSTINE. No, Mr. Chairman.

Chairman MILLER. All right. If you would please stand and raise

your right hand.

[Witnesses sworn]

Chairman MILLER. Two quick matters. One is before we begin,

I would like to place into the exhibit of this hearing a record of exhibits. That has been provided to Mr. Sensenbrenner, to the Minority staff as well, and is, I believe, on the table for your reference,

for the witnesses, reference by the witnesses. And without objection, it is so ordered. [The information appears in the Appendix.]

And then, second, I know that neither of you were asked, we

didn’t ask either one of you to provide a written statement, but either of you wish to make any preliminary statement before we

begin?

Mr. WINTERS. Yes, Mr. Chairman. Thank you.

Chairman MILLER. Mr. Winters.

Panel 1:

STATEMENT OF MS. EVELYN KLEMSTINE, ASSISTANT INSPECTOR GENERAL FOR AUDITS, NASA OFFICE OF INSPECTOR

GENERAL AND MR. KEVIN WINTERS, ASSISTANT INSPECTOR

GENERAL FOR INVESTIGATIONS, NASA OFFICE OF INSPECTOR GENERAL

Mr. WINTERS. My name is Kevin Winters. I am the Assistant Inspector General for Investigations at NASA’s Office of Inspector

General.

With the Chairman’s permission, we would like to provide a brief

opening statement. Our intent is to provide what we hope is a helpful context regarding the organizations for which Ms. Klemstine

and myself are responsible.

As the Chairman knows, the mission of the Office of Inspector

General is to conduct objective oversight of NASA’s programs and

11

operations, and then, to independently report to the NASA Administrator, this Congress, and to the public, to further help NASA’s

accomplishment of its mission.

Public Law 95–452, commonly known as the Inspector General

Act of 1978, is the statutory basis for Offices of Inspector General

throughout 61 federal agencies, and accordingly serves as our statutory foundation for a series of broad mandates.

One such mandate under the Act is that the Office of Inspector

General perform the following two operational functions: one being

audits, the second being investigations. The Office of Audits, supervised by Ms. Klemstine to my right, focuses on the conduct of audit

activities relating to NASA’s programs and operations. There are

101 NASA OIG employees in the Office of Audits, who are deployed

throughout most of NASA’s field centers. Ms. Klemstine, as the Assistant Inspector General for Audits, is a 28-year career civil servant, largely in the IG community, and has been with NASA OIG

since November 2004.

I am privileged to lead the other operational function, the Office

of Investigations, which performs investigative activities both

criminal and administrative, pertaining to NASA’s programs and

operations.

There are 81 NASA OIG employees in the Office of Investigations, of which 58 are federal law enforcement officers who serve

as special agents. Like their audit counterparts, our investigative

staff is deployed throughout most of NASA’s field centers.

As the Assistant Inspector General for Investigations, I am relatively new to the Inspector General community, having served in

NASA OIG for 17 months. Before that, I served 30 years of uniformed service in the U.S. Marine Corps. Like Ms. Klemstine, I am

now a civil servant.

Finally, we are responsible for our respective functions to NASA

Inspector General, the Honorable Robert Cobb. As the Chairman

mentioned, Mr. Cobb was nominated by the President as NASA’s

Inspector General, on February 26, 2002, and confirmed by the

U.S. Senate on April 11, 2002.

We are here today at your invitation, and we look forward to

your questions.

DISCUSSION

Chairman MILLER. Thank you, Mr. Winters. That was one of the

better opening statements I have heard, certainly from a witness

that we didn’t ask to prepare an opening statement. If all witnesses

that we didn’t ask to prepare an opening statement gave one like

that, we would not ask more often.

At this point, I will recognize myself for five minutes, and Mr.

Sensenbrenner for five minutes. If any other Members attend, they

will be entitled to five minutes of questioning as well. We will rotate back and forth until we have completed the questions that we

have of you.

12

APRIL 10, 2007 MEETING

Mr. Winters and Ms. Klemstine, you did both hear of the allhands meeting on April 10. How did that e-mail, how did you hear

of that meeting?

Ms. KLEMSTINE. I received an e-mail from the Deputy Inspector

General, stating that there would be a meeting on April 10 that

was mandatory for all staff members.

Chairman MILLER. Okay. Mr. Winters.

Mr. WINTERS. The same thing, it was an e-mail on April 9, which

I believe was a Monday, late in the day, I want to say about 5:00,

from the Deputy.

Chairman MILLER. And the Deputy was Tom Howard.

Mr. WINTERS. It was Mr. Tom Howard.

Chairman MILLER. All right. Thank you.

If employees cannot attend all-hands meetings, meetings at

which every member of the staff is expected to attend, has it been

the practice to have a recording of that meeting for those employees, and is it reasonable to do so?

Ms. KLEMSTINE. Yes. Every all-hands meeting I have been to, as

well as some ethics training, and other meetings where everybody

is required to go to, have always been videotaped.

Mr. WINTERS. Yes. I think it is a reasonable idea that people can

come back and look at a tape. In this case, I don’t have a recollection that it was mandatory to go back and look at a tape, though.

Chairman MILLER. Okay. Mr. Winters, you told us, our staff, that

Mr. Cobb, Mr. Howard, Ms. Klemstine, and you were in the meeting room when the Administrator, Mr. Griffin, came in, and Mr.

Morrell and Mr. Wholley.

You said to our staff that was tension in the room. What was the

nature of the tension? Could you describe the atmosphere in the

room?

Mr. WINTERS. It was a room in the basement of the NASA Headquarters building, tiered seating. All the NASA OIG employees

were present in the room, who worked in the Headquarters building, and to our front were the nine respective NASA field centers

displayed up on the screen.

The purpose of the meeting was generally known, that the Administrator was going to discuss, more or less, his review and findings, or it was assumed that he was going to discuss his review and

findings of the PCIE investigation. So, there was a natural, in my

opinion, tension that the Administrator was going to discuss allegations of misconduct of our boss. So, it was quite reasonable to have

a feeling of tension about that, with our boss present.

Chairman MILLER. Sure. Mr. Winters, you told our staff, our

Subcommittee staff, that you knew instinctively that this meeting

was a mistake, that it gave a perception of a lack of independence

of the Inspector General. Is that your testimony today as well?

Mr. WINTERS. That might be a bit of an overstatement, but in my

opinion, it was and is difficult to have that type of a discussion

with your boss present.

Chairman MILLER. So, it was the appearance—well, you told the

staff that there were visuals that raised questions by you and by

other members of the staff. What did you mean by that?

13

Mr. WINTERS. The optics of the head of the NASA, the Administrator, reviewing a report of allegations in front of the Inspector

General, and speaking to the staff about it. The optics of just those

people in the same room together, talking about this particular

subject.

Chairman MILLER. Okay. So, in Washington, we would say that

there was a problem with the optics outside of the beltway, and the

rest of America would say it looked bad?

Mr. WINTERS. I think that might be an overstatement, Mr.

Chairman, but the optics did raise issues, obviously.

Chairman MILLER. Okay. Ms. Klemstine, do you think it was a

bad idea? Did you think so at the time, and do you think so now,

to have the meeting with Mr. Cobb present?

Ms. KLEMSTINE. I definitely felt that Mr. Cobb should not be

there. I was surprised that he was at the meeting. I had not had

that expectation.

However, what I was looking for at that meeting was basically,

‘‘a pep talk.’’ I felt like our organization needed somebody to come

in and tell us that we were valuable to the organization, that we

provided some input, and that was what I was looking for.

So, I wasn’t opposed to having the meeting, but I didn’t agree

with the content of the meeting.

Chairman MILLER. Okay. Ms. Klemstine, did your senior staff express any kind of concern to you about the meeting?

Ms. KLEMSTINE. Not prior to the meeting, but after the meeting.

Chairman MILLER. Okay. What was the nature of their concern?

Ms. KLEMSTINE. Some of the comments made by the Administrator as they related to the audit community.

Chairman MILLER. All right. I am going to go over my time just

very briefly. I am going to refer to a memo dated April 23, 2007.

That is Exhibit 1 in the book in front of you. Could you tell us what

that document is?

Ms. KLEMSTINE. Yes. It is an e-mail that I prepared for the Deputy Inspector General. The day after the Administrator had spoken

with us, Wednesday, we had our senior staff meeting, as we do

every Wednesday, and at the senior staff meeting, I expressed at

the meeting that my staff had concerns about some of the content

of the ViTS. At that time, I was told to basically document those

concerns, and this is the result of that documentation.

Chairman MILLER. Okay. And the concerns were that it was not

appropriate for Mr. Cobb to be at the meeting?

Ms. KLEMSTINE. Yes.

Chairman MILLER. And certainly not if Mr. Griffin expected an

open discussion of the staff. Is that——

Ms. KLEMSTINE. Yes, that is correct.

Chairman MILLER. And did Mr. Cobb ever address the appearance, the issue of the appearance of a lack of independence, and

what would be done to correct that appearance?

Ms. KLEMSTINE. At the meeting itself?

Chairman MILLER. Did I say Mr. Cobb? I meant, Mr. Griffin is

what I meant to say.

Ms. KLEMSTINE. Oh. Did he address—I am not quite sure I understand the question.

14

Chairman MILLER. I am sorry. It was one of the concerns that

your staff expressed, was that Mr. Griffin never addressed the

principal concern of the PCIE report, that Mr. Cobb failed to maintain the appearance of independence.

Ms. KLEMSTINE. Yes, that was one of their concerns.

Chairman MILLER. That Mr. Griffin never addressed that——

Ms. KLEMSTINE. Yes.

Chairman MILLER. That concern. Okay. And the—and did Administrator Griffin also express, describe the work of the OIG?

Ms. KLEMSTINE. He described the work in terms of what it was

that he thought we ought to be concentrating on, or areas that he

thought that we should do, such as fraud, waste, and abuse, and

other areas where he didn’t think that we added value to the community.

Chairman MILLER. All right. And did your staff express to you

how they regarded Mr. Griffin’s statement? Did they find them disheartening?

Ms. KLEMSTINE. Yes. Several people were quite upset about some

of the comments.

Chairman MILLER. Okay.

Ms. KLEMSTINE. Especially my technical staff.

Chairman MILLER. Okay. And did Mr. Griffin make any, say anything about the technical expertise of the staff?

Ms. KLEMSTINE. Yeah, he basically said that the audit community didn’t have the ability to make technical type, I don’t want to

say decisions, but recommendations, I guess would be the correct

word. Those weren’t his exact words, but in generality.

Chairman MILLER. So, okay, the staff lacked the technical competence to make them.

Ms. KLEMSTINE. Right, exactly, that you know, he had engineers

and technical people on his staff that were more technically knowledgeable than those that would be on an audit staff, even though

I do have engineers, as well as software engineers, as part of my

staff.

Chairman MILLER. Okay. So, this is, expecting a pep talk, you

got something very different.

Ms. KLEMSTINE. That was my expectation, yes. I was looking for,

because I have been there for two and a half years, and we have

been under this cloud, and I really wanted, not only for myself but

for my staff, some feeling of adding value to the organization.

Chairman MILLER. Okay. Mr. Sensenbrenner.

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.

I would kind of like to go on the broader issues. Do you think

the impression that was given by Administrator Griffin’s talk to

the IG staff was appropriate?

Ms. KLEMSTINE. No.

Mr. SENSENBRENNER. And why?

Ms. KLEMSTINE. Again, as I stated earlier, I really felt that he

did owe us some type of pep thing, but I didn’t think that he should

go as far as making comments about the fact that, you know, if it

wasn’t a billion dollars worth of savings, it wasn’t worth reviewing,

that we didn’t have the technical expertise to do certain types of

jobs, and that our jobs should be basically focused on fraud, waste,

and abuse.

15

Mr. SENSENBRENNER. You think that Administrator Griffin’s

comments undermined the independence of the IG staff? Either of

you.

Ms. KLEMSTINE. I think that would be an individual to individual

comment. Personally, it did not undermine my independence, because I have been in this community a long time, and I know that

people make comments specifically on the audit side. But I do know

that many of my staff members did feel undermined by his comments.

Mr. SENSENBRENNER. Now, did Administrator Griffin make these

comments in response to a question, or was this just something

that he said on his own, and not in response to any questions by

the audience?

Ms. KLEMSTINE. It was in response to a question from the audience.

Mr. SENSENBRENNER. Okay. And what was—if you can recall,

what was the nature of that question?

Ms. KLEMSTINE. The nature of the question, that was actually

from, not somebody from the audit community, was specifically

what type of audits do you think we should be doing?

Mr. SENSENBRENNER. And that question, which came from outside the audit community, and the answer of Administrator Griffin,

in your opinion, did it undermine the independence of the audit

community to be able to do its job?

Ms. KLEMSTINE. Again, I am not sure it undermines. It does

leave an impression.

Mr. SENSENBRENNER. Okay.

Ms. KLEMSTINE. I mean, we are going to do what we need to do,

but it does leave the, what is the value, if the Administrator is not

interested in our work, then how are we contributing?

Mr. SENSENBRENNER. Well, he might not be interested, but we

are.

Ms. KLEMSTINE. Right. And I—right, granted. And that is why

it doesn’t undermine, because obviously, you are preponderant customer, so you know, that is, it is just one part of the equation.

Mr. SENSENBRENNER. Not only the customer, but the sugar

daddy that gives you money every year, too.

Ms. KLEMSTINE. Right.

Mr. WINTERS. Mr. Sensenbrenner, may I——

Mr. SENSENBRENNER. Yeah.

Mr. WINTERS.—put you back on that line of questioning?

Mr. SENSENBRENNER. Yeah.

Mr. WINTERS. The Administrator was very careful, in terms of

his prepared remarks, and I think this committee has a copy of the

prepared remarks. He actually worked from a list of talking points,

in terms of what he wanted to communicate with our staff.

And the comments that Ms. Klemstine is referring to were in response, of course, to questions, and it was my impression, again,

we are in the world of perceptions and how you view evidence and

how you view statements, that the Administrator was very careful

in qualifying his remarks, because he was being asked as to his

opinions, as to what mattered to him, in terms of our work—as to

the priority and to the type of work that we are doing.

16

And he went on at great length that he valued very much the

fraud, waste, and abuse type investigations that we do. And then,

he went into his opinions as to management-type recommendations, which he hears, apparently, you know, according to him,

every day. In terms of winners and losers on decisions that are

made, it was my impression that he was saying that managementtype recommendations are not as helpful to him, in terms of the

work the OIG does, as compared to the typical criminal fraud,

waste, and abuse investigations.

Mr. SENSENBRENNER. When did you first learn that the meeting

was recorded? Both of you.

Ms. KLEMSTINE. It was on the screen there. There were several

signs in the room that said that this is being recorded.

Mr. WINTERS. That is true.

Mr. SENSENBRENNER. And when did you first learn that the

meeting should not have been recorded?

Ms. KLEMSTINE. I never heard that the meeting should not have

been recorded. What I did hear was the following morning, I received an e-mail from one of my staff members telling me that they

were told to destroy the tapes, and that was my first knowledge

that there was any type of concept of tape destruction.

Mr. WINTERS. I first learned on Monday. Monday, I think it is

the 16th or 17th of April. I might have my dates wrong on that.

It was after the weekend. The meeting occurred on April the 10th,

which I believe was a Tuesday. I had some evidence that employees

were asking for the tapes on that Friday, the following Friday.

Mr. SENSENBRENNER. Are these types of meetings usually recorded?

Mr. WINTERS. Yes.

Mr. SENSENBRENNER. Both of you say yes?

Ms. KLEMSTINE. Yes.

Mr. WINTERS. And they are fairly rare, Mr. Sensenbrenner, in

terms of——

Mr. SENSENBRENNER. All right.

Mr. WINTERS.—all-hands meetings. This is the first all-hands

meeting that we ever had with the Administrator since I have been

there.

Mr. SENSENBRENNER. If I can run over my time a little bit, too.

Have either of you ever requested that a meeting of this type be

recorded?

Mr. WINTERS. No.

Ms. KLEMSTINE. No.

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.

Chairman MILLER. Mr. Sensenbrenner, I ran over three minutes.

You could have gone another couple minutes if you had wanted to.

To follow up on that last question, have either of you requested

that a meeting not be recorded?

Mr. WINTERS. No.

Ms. KLEMSTINE. No.

Chairman MILLER. Okay.

Mr. Winters, you referred to Administrator Griffin’s opening

statement being in writing. We actually do not have a copy of that.

It is hard to imagine our request would not have included, would

17

not have reached a copy of that prepared statement, but can we receive that from you?

Mr. WINTERS. Well, we certainly have access to all NASA documents, and we will make a request to get that.

Chairman MILLER. Okay. Right.

Mr. WINTERS. I am sorry—is that——

Chairman MILLER. You can answer this question quickly, excuse

me.

Mr. WINTERS. We can request a document for you.

Chairman MILLER. Okay. I neglected to notice that Mr. Feeney

was here, and he is entitled to five minutes of questioning as well.

Mr. Feeney.

Mr. FEENEY. Well, thank you, Mr. Chairman. If now is the appropriate time, I probably won’t have five minutes worth, but for both

of the witnesses, my understanding is that your Office is to function totally independent of the Administrator’s supervision or control. Is that right?

Mr. WINTERS. Under the IG Act, we are under what is called the

general supervision of the head of the agency, which is a term that

is often debated in the periodicals.

Yes, we are independent, in terms of——

Mr. FEENEY. Your mission is to be independent.

Mr. WINTERS.—what we decide to investigate or audit, and

things like that.

Mr. FEENEY. And so, for example, if the Administrator told you

not to investigate abuse, waste, or fraud, you would have been required to ignore those instructions?

Mr. WINTERS. Correct. We make our independent assessments as

to what to do.

Mr. FEENEY. In his original letter calling the meeting, Mr. Griffin

said that he had reviewed the ROI, and I have taken actions that

I believe are necessary to address the ROI’s findings. Did he express that in his statement that we don’t have a copy of?

Mr. WINTERS. Yes, he did. I don’t know what was on the statement. I presume—it was a written statement one page, and he had

some talking points, which he appeared to have, he read from these

talking points, in terms of why we are at the meeting that he has

been, that he was requested to provide input to the Chair of the

PCIE, and he went through the chronology as to how we got to this

particular place that he reviewed the investigation, and that he is

making the following recommendations.

Mr. FEENEY. Other than saying that with respect to the technical

expertise in running the agency, he felt like he had people more

suitable and qualified. Did he, in general, give support to your Office, in terms of your mission, and in general, express sympathy or

empathy with the jobs that you had, and support for what you do?

Mr. WINTERS. Well, we represent two separate functions of the

Office of Inspector General. From my functional area, the Office of

Investigations, my staff was supportive of him, stating essentially

‘‘good for the Administrator’’ that he is all about finding out about

fraud, waste, and abuse, and supports us.

Mr. FEENEY. And Ms. Klemstine.

Ms. KLEMSTINE. My staff’s perspective, not as glowing. There

were concerns about, especially since I do have two groups that

18

specifically lean towards a technical area, both my Science and

Aeronautics Research Group, as well as my Space Operation and

Exploration Group. And they do more technical type audits, as well

as make technical recommendations.

So, there was some concern, specifically in those two areas.

Mr. FEENEY. And these concerns were expressed to you after the

meeting?

Ms. KLEMSTINE. Yes.

Mr. FEENEY. Were they expressed during the meeting to the Administrator?

Ms. KLEMSTINE. No.

Mr. FEENEY. And was there a reason that they were not expressed during the meeting?

Ms. KLEMSTINE. No, I can’t answer that question. I have not

asked that question, nor do I know any reason why it was not expressed.

Mr. FEENEY. Did anybody express at the time that they felt it

was inappropriate for Mr. Cobb to be in attendance at the meeting?

During the meeting, did anybody tell the Administrator they would

be more comfortable——

Ms. KLEMSTINE. No.

Mr. FEENEY. Okay. I have no further questions.

Chairman MILLER. Thank you.

DESTRUCTION OF DOCUMENTS

Ms. Klemstine, we spoke for a moment about how both you and

Mr. Winters first heard that the tapes were being destroyed. And

I think you said you had gotten e-mails, I think according to your

interviews with our staff, Karen VanSant was involved in an e-mail

exchange. Catherine——

Ms. KLEMSTINE. Actually, it was Susan Aggen, who mentioned

Karen VanSant. She was the one who actually had sent the e-mail,

that Karen had been told to.

Chairman MILLER. Okay. All right. And then, Catherine

Schneiter——

Ms. KLEMSTINE. Schneiter, yes.

Chairman MILLER. Schneiter?

Ms. KLEMSTINE. Yes.

Chairman MILLER. Okay. And what did she tell you about the

DVDs?

Ms. KLEMSTINE. Well, the first, and I believe that you have a

copy of that, was an e-mail that she sent to me, saying that they

had asked for the destruction of the tapes, and I wrote an e-mail

back in response, saying why are we doing this? And then, I went

actually down to physically talk to her, as to why was this occurring, because in my mind, it sent up a bunch of red flags, as to why

would we destroy tapes.

Chairman MILLER. Okay. You mentioned e-mails. Exhibit 5, in

the exhibit book before you, are those e-mails that you have referred to?

Ms. KLEMSTINE. No, this one comes from Dave Gandrud to Catherine. It was a different e-mail.

Chairman MILLER. I have got the wrong number. Exhibit 2.

Ms. KLEMSTINE. Yes.

19

Chairman MILLER. All right. Did you consider telling Ms.

VanSant or Ms. Schneiter not to destroy——

Ms. KLEMSTINE. Yes.

Chairman MILLER.—the tapes?

Ms. KLEMSTINE. Very much so. I did.

Chairman MILLER. Okay. You considered it. Did you do it?

Ms. KLEMSTINE. No, I did not do it.

Chairman MILLER. Okay.

Ms. KLEMSTINE. And I did not do it because I was not the originator of the document.

Chairman MILLER. Okay. Do you feel any twinge of regret in——

Ms. KLEMSTINE. Yes.

Chairman MILLER.—that decision?

Ms. KLEMSTINE. Yes, I remember sitting at my desk when I got

this e-mail, and I was, I remember thinking jeez, we should not be

doing this. You know, the price to pay for destroying a document

versus what was on the document to me wasn’t worth the expenditure, and I did go and talk to Catherine about can’t we try to keep

it or whatever, and I did discuss it at my level, but I did not pursue

it any higher than my level.

Chairman MILLER. Okay. Did you discuss this with Mr. Winters?

Ms. KLEMSTINE. No, he was not there at the time.

Chairman MILLER. Okay. Did you discuss him with it at any

time?

Ms. KLEMSTINE. No.

Chairman MILLER. Okay. Did——

Ms. KLEMSTINE. You have to realize that the tapes were destroyed the following morning, like 8:00 or 9:00 in the morning. It

was so quick, it was done within less than 24 hours.

Chairman MILLER. All right. Did you hear Mr. Winters, at any

time, tell the staff of the OIG office that destroying something always raises red flags? You used the phrase raises red flags a moment ago.

Ms. KLEMSTINE. Did I hear Mr. Winters make that comment?

Chairman MILLER. Right.

Ms. KLEMSTINE. No, I did not. That was——

Chairman MILLER. Okay. Mr. Winters, what was your response

when you heard of the order to destroy tapes, the DVDs?

Mr. WINTERS. The chronology of getting there was, might be

helpful to the Chairman. The first time I heard that the tapes were

destroyed was the following week, when I talked to the Chief of

Staff of NASA.

Chairman MILLER. Okay. Did you tell your staff at any point

that destroying something always raises red flags?

Mr. WINTERS. I might have.

Chairman MILLER. Well——

Mr. WINTERS. It is a reasonable statement to make, and one that

I would hold today.

Chairman MILLER. Okay. Whether you said it or not, you

thought it then, you think it now?

Mr. WINTERS. Correct.

Chairman MILLER. Okay. Mr. Winters, did you begin an investigation of any kind into the destruction of the——

Mr. WINTERS. Yes.

20

Chairman MILLER. Okay. When did you do that?

Mr. WINTERS. Well, upon learning that the tapes were destroyed,

and I went back and talked to my leadership, as to next steps, in

terms of what to do.

Chairman MILLER. Who were your leadership?

Mr. WINTERS. The Deputy Inspector General, Mr. Tom Howard.

Chairman MILLER. Mr. Winters, I know that you are a lawyer.

Are you familiar with the evidentiary concept of spoilation, s-p-oi-l-a-t-i-o-n.

Mr. WINTERS. Probably not as much as I should, but maybe the

Chairman could share that with me.

Chairman MILLER. Well, let the word go forth that any lawyer

who appears before this committee should be expected to be

quizzed about the law. Is there any element of what you understand of spoliation to mean, that when a party, knowing that evidence will be of interest to another party, because of pending litigation or anticipated litigation, or the interest of an oversight committee, destroys a document that would be of interest, that the inference about what was in the document is damning to the person

who destroyed it? Is that your understanding of——

Mr. WINTERS. I agree with that.

Chairman MILLER. Okay. Is there any element of spoliation that

does not fit these circumstances?

Mr. WINTERS. There is not.

Chairman MILLER. Mr. Sensenbrenner.

Mr. SENSENBRENNER. Thank you. For either of you, were OIG

employees looking for copies of the destroyed tapes?

Mr. WINTERS. It is my understanding there were some employees

that missed the meeting, and were looking for the tapes, so they

could view the meeting themselves.

Ms. KLEMSTINE. Yes.

Mr. SENSENBRENNER. What was your reaction, when you received

the e-mail asking that copies of the tape be destroyed?

Ms. KLEMSTINE. I think that question applies to me. I, as I stated

earlier, when I was sitting at my desk reading that e-mail, my

thought was why are we doing this? This is not the right thing to

do. So, as I said, red flags went up in my head.

Mr. SENSENBRENNER. When the red flags went up, did you do

anything in response to those flags?

Ms. KLEMSTINE. I went back to the originator of the e-mail, Ms.

Schneider, and asked her specifically what is the story here? Why

are we doing this? Again, the e-mail actually came out of Marshall,

which is one of our field centers, where I first obtained the knowledge that this was going on. I was not familiar with the headquarters situation at all, and I was basically told that there was

somebody standing there waiting to take the tape from the ViTS

office, and that basically, they had already given the individual the

ViTS tape.

Mr. SENSENBRENNER. Ms. Klemstine, you have been in the IG’s

office for a long time. Have you ever received a request like this?

Ms. KLEMSTINE. No.

Mr. SENSENBRENNER. And why do you think the NASA headquarters wanted those tapes destroyed?

21

Ms. KLEMSTINE. I truly do not know why. Again, the price of destroying those tapes was not worth, in my mind, what was on those

tapes. And so, I cannot think why we would do that.

Mr. SENSENBRENNER. Mr. Winters.

Mr. WINTERS. I can only speculate.

Mr. SENSENBRENNER. And who do you think was behind the decision?

Mr. WINTERS. To destroy it?

Mr. SENSENBRENNER. Yes.

Mr. WINTERS. The combination of either the Chief of Staff and

the General Counsel.

Mr. SENSENBRENNER. Ms. Klemstine.

Ms. KLEMSTINE. I would say the same. I have no knowledge.

Mr. SENSENBRENNER. I have no further questions. We will be

hearing from them in a few minutes.

Chairman MILLER. Mr. Feeney.

Mr. FEENEY. I have no further questions. Thanks.

Chairman MILLER. I am sure that you will be disappointed that

that is the end of our questions for you. And if we could take a recess of just a couple of minutes, we will have our next panel.

Thank you.

[Recess.]

Chairman MILLER. The Subcommittee will return to order.

And we now welcome our second panel, Michael Wholley, the

General Counsel of NASA, and Paul Morrell, the Chief of Staff for

NASA Administrator Michael Griffin.

It is, as you know, the practice of the Subcommittee to take testimony under oath. Do any, do either of you have any objection to

being sworn in?

Mr. WHOLLEY. No, sir.

Chairman MILLER. Okay. You also have a right to be represented

by Counsel. Are you represented by Counsel today?

Mr. WHOLLEY. No, sir.

Chairman MILLER. If you would now please stand and raise your

right hand.

[Witnesses sworn]

Chairman MILLER. Thank you.

Both of you have provided written testimony, and I believe, I assume that your oral testimony will be very similar to that, probably

simply reading that.

If you could begin with limiting that testimony to five minutes,

all of your written testimony will be placed in the record, and after

that, we will ask questions in turn, as we did before.

We will begin with Mr. Wholley. Mr. Wholley.

Panel 2:

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

Mr. WHOLLEY. Thank you, Mr. Chairman, Mr. Sensenbrenner,

Mr. Feeney.

I have been asked to address five issues in my testimony today

before the Subcommittee. As you may be aware, I met with the

22

staff of the Subcommittee, as well as with the staff of other committees on April 27, for approximately three hours, and addressed

these five issues, as well as others, and answered to the best of my

recollection and belief all of the questions posed to me.

You have asked me to address the April 10 meeting held by Dr.

Griffin. Dr. Griffin set out as his purpose for that meeting what he

put in his March 14 letter: ‘‘I will schedule a meeting,’’ quoting Dr.

Griffin, ‘‘with the employees of the NASA Office of Inspector General, to inform them that I have reviewed the Record of Investigation (ROI), and I have taken the actions that I believe are necessary to address the ROI’s findings. Such a meeting will provide

me an opportunity to listen to any concerns that may exist among

the staff, and to express my support,’’ that would be Dr. Griffin,

‘‘for a strong and effective Office of Inspector General.’’

I was in attendance at the meeting, arriving with Dr. Griffin and

Mr. Morrell, the Chief of Staff. The meeting was held in the videoconference room on the lower level at NASA, and Dr. Griffin spoke

initially for approximately ten minutes. He stated, as best I recall,

something similar to what he had set forth in his letter to Mr.

Johnson, with respect to the ROI, having revealed no evidence of

a lack of integrity on the part of Mr. Cobb, nor did the ROI indicate

any actual conflict of interest, or actual lack of independence on his

part.

I had watched Dr. Griffin’s interview on the C–SPAN program

Newsmakers on Sunday, April 8, which is still online, and his remarks at this meeting were similar to those he articulated on that

program. Dr. Griffin then opened up the floor for questions, and

several questions were asked and answered. I believe that the

meeting lasted a total of approximately 30 minutes.

With respect to the subsequent collection and destruction of all

video records of Administrator Griffin’s meeting with the OIG staff,

my involvement is as follows. At some point on the morning after

the meeting, Paul Morrell came into my office. This was not an unusual occurrence. He had what turned out to be several DVDs, and

he sat at a table across from my desk.

He appeared upset that in spite of his direction to the contrary

that this closed meeting was not to be recorded, the meeting had

been recorded. As best I recall, he stated that someone in Public

Affairs had asked that the meeting be recorded, and had then

asked that a number of copies me made.

Mr. Morrell indicated that he had recovered the copies from Public Affairs, and that this meeting was not a Public Affairs event,

but rather, a closed meeting called by the Administrator, for the

purpose that the Administrator set forth in his letter.

I believe I told him I clearly understood his pique that his direction had been overridden, and that this closed meeting had been

recorded, and that copies had been made. I believe that at the conclusion of our discussion, I asked him to leave the recordings with

me, and I put them on my desk.

I want to categorically state at no time and in no way did Mr.

Morrell indicate to me that I should destroy these recordings. That

did not happen. Sometime either later that day, or early the next

day, I honestly can’t recall when, I reviewed relevant portions of

23

the Federal Records Act (FRA), and in particular, the definition of

what constituted a record.

I also briefly reviewed the Freedom of Information Act. I concluded that these copies made by Public Affairs were not records

for purposes of the FRA, but also concluded that if they were retained and filed, they could become records by virtue of that retention. From my perspective, and I stated it to the Subcommittee

staff, I did not believe it wise to have these in any way become

records, subject to release under FOIA. This was a closed meeting,

specifically directed to not be recorded, and these DVDs were not

agency records at that time, in my opinion.

I personally made the decision to destroy them, and I did so by

breaking them into pieces and throwing them in the trash. The

next time I heard anything about these recordings was while I was

on vacation in Florida the week of April 15 at a family reunion. In

looking at my e-mails, I believe I first learned of the request to provide a copy of the recording to this subcommittee some time in the

late afternoon or the early evening of April 18, when I learned of

the Subcommittee’s letter of the same date. I informed my staff I

didn’t have any copies of the recording, and that I had previously

destroyed them. At some later time, I learned that there had been

other recordings made at other ViTS locations.

Regarding my role in the response by Dr. Griffin to the report

of the Integrity Committee, I became aware that something had

been sent to Dr. Griffin from Mr. Johnson in his role as Chairman

of the PCIE. I will try and skip forward to stay within my five minutes, sir. I think I received this from Mr. Morrell on Monday the

26th. He gave me what had been delivered to Dr. Griffin. I asked

my executive assistant to print all the documents out from the CD

that was provided, and I made arrangements to meet with Dr. Griffin and discuss how he wanted this handled.

He indicated that he wanted the matter reviewed, and that he

wanted to know the full range of options open to him. Specifically,

I might add, he said I do not want a recommendation. I want to

know what my options are.

At some point, either the 27th or 28th, I discussed it with my

Deputy. I discussed the possibility of having a newly hired individual, an experienced attorney who was due to begin working in

my office the following Monday, look over the report and provide

me her unvarnished opinion. I believed this was a good option, in

light of her extensive experience, and the fact that so far as I was

aware, she knew nothing about any of the matters or the parties

involved.

I asked Mr. Sefton to call her, and confirm that she knew nothing about the case, and asked her if she could begin working on it

at the earliest opportunity, in light of the tight deadline that we

were facing. I concurrently reviewed the materials. At the conclusion of her review, she provided me her opinion.

I arranged for a meeting to brief Dr. Griffin, and had her, the

newly hired attorney, brief him on her review. At the conclusion of

that review, I indicated my full concurrence with her analysis. I

then left all the materials with Dr. Griffin, informed him that

under the terms of the executive order, he was required to certify

that he had reviewed the investigation, and that once he had arVerDate 11-MAY-2000 15:32 Jan 27, 2008 Jkt 035599 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 C:\WORKD\I&O07\052407\34599 SCIENCE1 PsN: SCIENCE1
24

rived at his course of action, we would prepare the transmittal letter back to Dr. Johnson. The rest of that paragraph deals with how

that letter was sent back.

I have been asked to address concerns about the monitoring of

Mr. Cobb’s actions under the corrective action plan proposed by Administrator Griffin. Administrator Griffin set forth his recommendation in his March 14 letter, and that is available to you,

and I am sure you have it.

I have no role in that monitoring process. The IG Act specifically

authorizes that general supervision can be by the principal deputy,

but cannot be delegated any further. Of course, there still exist all

of the options available to any individual who wishes to file a complaint against the Inspector General, including the Integrity Committee, the EO process, the Office of Special Counsel, and others.

Dr. Griffin has publicly and privately stated that he wants an

independent Office of Inspector General, committed to its statutory

charter. I have been the General Counsel at NASA since July 6,

2004. This is in reference to my personal relationship, allegedly,

with Mr. Cobb. My relationship with Mr. Cobb is professional and

amicable. Do we socialize together? No. I have never been to his

home, nor he to mine. We are professional colleagues. As I stated

to the staff during our three hour meeting, I find him to be a man

of integrity. From my perspective, he understands his role as Inspector General, and carries it out with conviction and force, and

we understand our boundaries well.

I was asked how often I talked with him. The answer is simple.

Every time I see him. We have worked together to establish an acquisition integrity program, for example, and both of us and our respective staffs firmly believe that it will pay great dividends to the

agency and to the government.

We also have disagreed on numerous occasions on the law, and

he has the impediment of being as stubborn and oftentimes as argumentative as I am when we believe we are correct. We have, on

a number of issues, agreed to disagree. I am not sure how much

more of my five minutes are here, sir, but——

As I stated to the staff with whom I met on April 27, I do not

think that anybody, and I said this to the staff, I do not think that

anybody wishes more than I do that a recording of that meeting

could be provided to this body. There were somewhere between 120

and 200 people, I believe, at that meeting. The vast majority, in

fact almost exclusively, OIG people. I believe the only two non-OIG

were probably Mr. Morrell and I, and then, of course, the Administrator.

To in any way imply I destroyed copies of the recordings in an

attempt to destroy evidence of the substantive content of that

meeting is just not true, sir. Not my intent. I recognize that memories and perceptions about what occurred there differ.

The rest, sir, you have commented on. I am not in high dudgeon

or in a fit of pique. I am just skeptical about anything that comes

in front of me. You have every right to be skeptical as well.

Finally, I want to publicly apologize to everyone at NASA and

this committee who has had to expend time and effort trying to

find out whether a copy of this record still exists. I want to particularly apologize to Dr. Griffin and the leadership at NASA. The

25

agency has important work to do, of this Nation and its people,

work that is critical to our national security, our economic future.

Misdirections like this are not helpful, and I deeply regret that I

have made this a distraction.

I spent my professional life trying to resolve problems, and trying

to make things better. Despite my honest and considered efforts in

the matter of the destruction of the DVDs, I regret I failed to do

so in this regard and necessitated this hearing.

Thank you, sir.

[The prepared statement of Mr. Wholley follows:]

PREPARED STATEMENT OF MICHAEL C. WHOLLEY

I have been asked to address five issues in my testimony today before the Subcommittee. As you may be aware, I met with the staff of the Subcommittee, as well

as with staff of other committees, on April 27, 2007 for approximately three hours

and addressed these five issues, as well as others, and answered to the best of my

recollection and belief all of the questions posed to me.

1. You have asked me to address the April 10, 2007 meeting held by Dr. Griffin

with the staff of the NASA OIG. Dr. Griffin had set out his purpose in holding such

a meeting in his March 14, 2007 letter to Mr. Clay Johnson detailing the actions

he intended to take after reviewing the HUD OIG Report of Investigation (ROI) on

Mr. Robert Cobb, the NASA Inspector General. In his letter Dr. Griffin stated that:

‘‘. . .I will schedule a meeting with the employees of the NASA Office of Inspector General to inform them that I have reviewed the ROI and I have taken the

actions that I believe are necessary to address the ROI’s findings. Such a meeting will provide me an opportunity to listen to any concerns that may exist

among the staff and to express my support for a strong and effective Office of

Inspector General.’’

I was in attendance at the meeting, arriving with Dr. Griffin and Mr. Paul

Morrell, the Chief of Staff. The meeting was held in the video teleconference (ViTS)

room on the lower level at NASA and Dr. Griffin spoke initially for approximately

ten minutes. He stated, as best I recall, something similar to what he had set forth

in his letter to Mr. Johnson with respect to the ROI having revealed no evidence

of a lack of integrity on the part of Mr. Cobb, nor did it indicate any actual conflict

of interest or actual lack of independence on his part. I had watched Dr. Griffin’s

interview on the C–Span program ‘‘Newsmakers’’ on Sunday morning, April 8, and

his remarks at this meeting were similar to those he had articulated on that program. Dr. Griffin then opened up the floor for questions, and several questions were

asked of and answered by Dr. Griffin. I believe that the meeting lasted a total of

less than thirty minutes.

2. With respect to ‘‘[T]he subsequent collection and destruction of all video records

of Administrator Griffin’s meeting with the OIG staff,’’ my involvement was as follows. At some point the morning after the meeting, Paul Morrell came into my office. This was not an unusual occurrence. He had what turned out to be several CD

cases in his hand and he sat at the table across from my desk. He appeared upset

that, in spite of his direction to the contractor ViTS operator that this closed meeting was not to be recorded, the meeting had been recorded. As best I recall he stated

that someone in Public Affairs had asked that the meeting be recorded and had

then asked that a number of copies be made. Mr. Morrell indicated that he had recovered the copies and that this meeting was not a public affairs event but rather

a closed meeting called by the Administrator. I believe I told him that I clearly understood his pique that his direction had been overridden, and that this closed meeting had been recorded and copied. I believe that at the conclusion of our discussion

I asked him to leave the recordings with me, and I put them on my desk. I want

to categorically state that at no time, and in no way, did Mr. Morrell indicate to

me that I should destroy these recordings. That did not happen.

Sometime either later that day or early the next day, I honestly cannot recall

which, I reviewed relevant portions of the Federal Records Act (FRA) and, in particular, the definition of what constituted a record. I also briefly reviewed the Freedom of Information Act. I concluded that these were not ‘‘records’’ for purposes of

the FRA, but also concluded that if they were retained and filed they could become

‘‘records’’ by virtue of that retention. From my perspective, and as I stated to the

Subcommittee staff, I did not believe it wise to have these in any way become

26

‘‘records’’ subject to release under the Freedom of Information Act. This was a closed

meeting, specifically directed to not be recorded, and these DVDs were not Agency

records at that time. I personally made the decision to destroy them, and I did so

by breaking them into pieces and throwing them in the trash.

The next time I heard anything about these recordings was while I was on vacation in Florida the week of April 15th. In looking at my e-mails, I believe that I

first learned of the request to provide a copy of the recording to this subcommittee

sometime in the late afternoon or early evening on April 18 when I learned of this

subcommittee’s letter of the same date. I informed my staff that I did not have any

copies of the recording and that I had previously destroyed them. At some later

time, I learned that there had been other recordings made at other ViTS locations.

3. Regarding my role in the response by Dr. Griffin to the report of the Integrity

Committee, I became aware that ‘‘something’’ had been sent to Dr. Griffin from Mr.

Johnson in his role as Chairman of the PCIE with regard to Report of Investigation

of the Integrity Committee. To the best of my recollection, I became aware of this

during a conversation with Mr. Morrell that occurred while we were at Ames Research Center in California at a Strategic Management Council meeting. This would

have been either February 21st or 22nd. From reviewing my e-mails I have determined that on Monday, February 26th, Mr. Morrell gave me what had been delivered to Dr. Griffin. The ‘‘package’’ consisted of the January 22, 2007 letter from the

Integrity Committee to Mr. Johnson; Mr. Johnson’s transmittal letter to Dr. Griffin,

a copy of the ‘‘Policy and Procedures’’ of the Integrity Committee, a copy of Executive Order 12993, a copy of a March 24, 1989 Memorandum Opinion from the Office

of Legal Counsel to the Integrity Committee, and a CD marked ‘‘ROI IC 500, Vols.

I–III, –FOUO–’’ I asked my Executive Assistant to print all of the documents on the

CD and put them in three ring binders. I made arrangements to meet with Dr. Griffin and discuss how he wanted this handled. He indicated that he wanted the matter reviewed and that he wanted to know the full range of options open to him in

light of the Report of Investigation. At some point, on either the 27th or 28th, I discussed with my Deputy, Keith Sefton, the possibility of having a newly-hired individual, an experienced attorney who was due to begin working in my office on

March 5th, look over the report and provide me her unvarnished opinion. I believed

that this was a good option in light of her extensive experience and the fact that,

so far as I was aware, she knew nothing about any of the matters or the parties

involved. I asked Mr. Sefton to call her, confirm that she knew nothing about the

case, and ask her if she could begin working on it at the earliest opportunity in light

of the tight deadline that we were facing. She agreed to do so, and Mr. Sefton arranged to deliver a copy of the materials to her. I concurrently reviewed the materials. At the conclusion of her review she provided me her opinion. I arranged a

meeting to brief Dr. Griffin, and had her, the newly-hired attorney, brief him on her

review. At the conclusion of her review, I indicated my full concurrence with her

analysis. I then left all of the materials with Dr. Griffin, informed him that under

the terms of Executive Order 12993 he was required to certify that he had reviewed

the investigation, and that once he had arrived at his course of action we would prepare the transmittal letter back to Mr. Johnson. I believe that it was on Monday,

March 12th, that I met with Dr. Griffin and received his direction on what actions

he wished to take. We had previously discussed that his actions in his ‘‘general supervision’’ role over the IG were limited, and that several of the proffered options

would in fact require the concurrence of the Chairman of the PCIE, Mr. Johnson.

I prepared the draft response for Dr. Griffin’s letter back to Mr. Johnson after the

meeting, then had to go on travel for the remainder of the week. In my absence,

the attorney who had reviewed the matter and who briefed Dr. Griffin worked with

Mr. Morrell to finalize the March 14th letter transmitted back to Mr. Johnson.

4. Topic 4 that I have been asked to address concerns the ‘‘[M]onitoring of Mr.

Cobb’s actions under the corrective action plan proposed by Administrator Griffin.’’

As indicated in the March 14, 2007 letter from Dr. Griffin, he has directed that Mr.

Cobb ‘‘. . .meet with the Deputy Administrator on a bimonthly basis to discuss his

implementation of his individual leadership/management plan and his professional

growth with the Executive Coach.’’ I have no role in that monitoring process. The

IG Act specifically authorizes that ‘‘general supervision’’ can be by the principal deputy, but cannot be ‘‘delegated’’ further. Of course, there still exist all of the options

available to individuals who wish to file complaints against the Inspector General

including the Integrity Committee, the EEO process, the Office of Special Counsel,

and others. Dr. Griffin has publicly, and privately, stated that he wants an independent Office of Inspector General that is committed to its statutory charter.

27

5. I have been the General Counsel at NASA since July 26, 2004. My relationship

with Mr. Cobb is both professional and amicable. Do we socialize together: no. I

have never been to his home, nor he to mine. We are professional colleagues. As

I stated to the staff during our three-hour meeting, I find him to be a man of integrity, intelligent, focused on doing the best possible job he can, and very independent.

And I like that in a person. From my perspective, he understands his role as an

Inspector General, carries it out with conviction and force, and we understand our

boundaries very well. I was asked how often I talked with him and the answer is

quite simple: every time I see him. We have worked together to establish an Acquisition Integrity Program, and both of us, and our respective staffs, firmly believe

that it will pay great dividends to the Agency and to the government. We have also

disagreed on the law on occasion, and he has the impediment of being as stubborn

and argumentative as I am when we believe that we are correct. We have, on a

number of issues, ‘‘agreed to disagree.’’

As I stated to the staff with whom I met on April 27th, I do not think that anybody wishes more than I do that a recording of that meeting could be provided to

this body. Your staff has apparently received allegations of what was said and done

at that meeting that range from the patently false to the ridiculous. If a video or

audio recording of the event existed, it would clearly demonstrate what actually occurred and we would not, perhaps, be having this hearing. There were, I believe,

somewhere between 120 and 200 people, mostly OIG staff members including investigators, who were present at this meeting. To in any way imply that I destroyed

the copies of the recordings in an attempt to destroy evidence of the substantive content of the meeting beggars belief. I recognize that memories and perceptions differ.

That said, some of the allegations contained in the April 25th letter, and which were

related to me in my meeting with the staffers on April 27th, were so false as to

clearly imply an intent to mislead on the part of those who provided them.

This latter point leads me to comment on a subject that is of significant and growing concern to me. I believe that ‘‘facts’’ matter, and that before any individual, organization or agency is pilloried, before anyone’s reputation is destroyed publicly or

privately, there is an ethical obligation to vigorously ascertain the truth, the factual

underpinnings, of each and every allegation. I come here today with the firm conviction that such is the purpose of this hearing. My sense in this matter is that there

has been, on the part of some of the people involved in this matter, a certain ‘‘sentence first, verdict later’’ mindset. My sense is that allegations have been slipped

under the door or thrown over the transom, often anonymously or with the request

of anonymity, and in all-too-many cases they are immediately given a mantle of

‘‘credibility’’ because they originate from someone ‘‘familiar with the issues’’ and

therefore ‘‘must be true.’’ In the best of all possible worlds some level of skepticism,

some kernel of ‘‘doubt,’’ some due diligence in ascertaining the facts must come into

play. In the best of all possible worlds individuals making such allegations would

be required to swear to the truth of what they are saying, and would be made aware

of the consequences of any false statement. In the best of all possible worlds, judgment would be withheld, and inflammatory, inaccurate public releases and commentary would be curtailed until all allegations had undergone the scrutiny of rigorous analysis. While I recognize that such a ‘‘perfect world’’ may not be attainable,

I nonetheless believe that each of us should do our part to come as close to it as

possible.

Finally, I want to publicly apologize to everyone at NASA who has had to expend

time and effort trying to find whether a copy of this recording still exists. I want

to particularly apologize to Dr. Griffin and the leadership at NASA. This agency has

important work to do for this nation and its people, work that is critical to our national security and our economic future, and distractions like this are not helpful.

I have spent my professional life trying to resolve problems and trying to make

things better. Despite my honest and considered efforts in the matter of the destruction of the DVDs, I regret that I have failed to do so in this regard.

Chairman MILLER. Mr. Morrell.

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

Mr. MORRELL. Thank you, Chairman Miller, Ranking Member

Sensenbrenner, Mr. Feeney.

In his March 14, 2007 letter to Clay Johnson, Chairman of the

President’s Executive Council on Integrity and Efficiency, NASA

Administrator Michael Griffin wrote: ‘‘I will schedule a meeting

28

with the employees of the NASA Office of Inspector General to inform them that I have reviewed the Report of Investigation regarding the allegations of misconduct on the part of NASA Inspector

General Robert Cobb, and I have taken the actions that I believe

are necessary to address the Report of Investigation’s findings.

Such a meeting will provide me an opportunity to listen to any concerns that may exist among the staff, and to express my support

for a strong and effective Office of Inspector General.’’

In his subsequent letter to Clay Johnson, dated March 29, 2007,

Administrator Griffin wrote: ‘‘In my meeting with IG Cobb and the

OIG staff, I will make clear that I expect and support a strong

OIG, which continues to be dedicated to identifying fraud, waste,

and abuse, and that I am committed to leading an agency where

full and frank discussions are not just tolerated, but are expected,

condoned, and encouraged, in a climate without fear of retribution,

and one in which the full panoply of protections exist for whistleblowers.’’

The meeting between the Administrator and the Office of Inspector General staff took place on Tuesday, April 10. The previous

day, on Monday, April 9, I contacted the Office of Public Affairs to

inquire about using the NASA TV facilities available in the headquarters auditorium for the April 10 meeting, which included OIG

staff at headquarters and the various NASA centers across the

country. The meeting was on a sensitive subject, and I wanted the

OIG staff to feel free to participate in a full and free dialogue.

Therefore, I asked Public Affairs to determine if the equipment

used in the auditorium could limit the broadcast of the meeting

solely to meeting participants.

Later that day, I was informed that the auditorium equipment

would not allow the meeting to be limited to participants, and it

was recommended that the headquarters videoconferencing facility

be used instead. Concerned that the size of the videoconference facility was not adequate to accommodate the number of OIG staff

expected at the meeting, I went to the facility and spoke to its

manager, Mr. Fred Berger.

During my conversation with Mr. Berger, we discussed whether

the technology in the auditorium could be used, whether the technology available in the videoconference center could be used in the

auditorium, and whether the video facility could accommodate the

number of OIG staff expected to attend the meeting.

I also told Mr. Berger during our conversation that the meeting

should not be recorded. My reason for doing so was my belief that

recording the meeting might discourage questions and discussion of

OIG staff concerns, which was inconsistent with what I believed

was the Administrator’s stated purpose for the meeting.

The next day, on April 10, shortly after I arrived at the meeting

with the Administrator, I noticed a display on the video monitor at

the front of the room that indicated the meeting was, contrary to

my instructions, being recorded. Later that day, I placed a call to

Mr. Berger to inquire why the meeting had been recorded. Mr.

Berger was unavailable, and he returned my call the following

morning, as I was driving to the office.

I asked Mr. Berger who recorded the meeting. He said he did.

I asked him why he recorded it, contrary to my direction. Mr.

29

Berger said he forgot that I had asked him that it not be recorded,

and that Mr. Fred Brown, from NASA TV, under the Office of Public Affairs, had requested that the meeting be recorded, and that

Mr. Berger had provided Mr. Brown with a copy of the recording.

I told Mr. Berger that I thought it was highly inappropriate for

someone in Public Affairs to request a recording of a meeting between the OIG staff and the Administrator, especially when I told

him the previous day that it should not be recorded. I asked Mr.

Berger to retrieve the recording from Public Affairs.

I next spoke by phone with my secretary, who informed me that

Mr. Bob Jacobs of the Office of Public Affairs had delivered DVD

copies of the meeting to my office. I was, needless to say, surprised

to learn that not only had the meeting been recorded and provided

to Public Affairs, but that Public Affairs was making copies.

When I arrived at the office, I went to see Mr. Jacobs. I asked

Mr. Jacobs if he had requested that the meeting be recorded. He

said that he had. I told Mr. Jacobs that I believed it was highly

inappropriate for him to have requested a recording of a closed

meeting between the Administrator and the OIG staff. I told him

that he did not have the authority to request recordings of the Administrator’s non-Public Affairs-related meetings. I requested that

he provide me with any additional copies that he had in his possession, which he in turn did.

I then went to see Mr. Fred Berger at the conferencing facility.

When I arrived at his office, he was there with Mr. Fred Brown

from NASA TV. Mr. Berger gave me several more DVDs. I asked

him if what I had in my possession represented all the copies. He

said yes.

I took the DVDs to the NASA General Counsel. I explained to

Mr. Mike Wholley, excuse me, what had happened, that a non-Public Affairs-related meeting had been recorded by Public Affairs

without proper consent or authorization, despite the fact that I said

it should not be recorded. I asked Mr. Wholley what I should do

with the DVDs. He said I should leave them with him.

I left the General Counsel’s office believing they were in the appropriate hands. I never directed that any DVD or recording be destroyed. It was my understanding that the original recording had

been made at headquarters, and that all existing copies had been

taken to the Office of the General Counsel.

To the best of my recollection and belief, I was unaware that copies of the meeting had been made and destroyed at NASA centers

until some time after the April 10 meeting had occurred, and I believe, to the best of my knowledge, it was some time the following

week.

It was and remains my strong belief that the Office of Public Affairs had no legitimate reason or authority to request, copy, or possess a recording of what was a non-Public Affairs-related meeting

between the Administrator and the OIG staff. Furthermore, it was

and remains my very strong belief that participants in a closed

meeting have the right to expect that the contents of the meeting

will remain secure and private, even when they know the meeting

is being recorded. It was my very strong concern that the possession of the recording by Public Affairs compromised the foregoing.

30

The Subcommittee asked me to address my role in the Administrator’s response to the report of the President’s Council on Integrity and Efficiency. My role was as a facilitator: scheduling meetings, conveying information, and coordinating the preparation, editing, review, and approval of correspondence. I did not review the

Report of Investigation, and I did not make recommendations to

the Administrator regarding his response to the Report of Investigation.

As you know, the Administrator recommended several actions to

the Chairman of the PCIE, and obtained his concurrence, consistent with the Inspector General Act. Those recommendations included IG Cobb’s attendance at the Federal Executive Institute

courses, and the assistance of an executive coach to help enhance

IG Cobb’s leadership and management skills. In addition, IG Cobb

will meet with the Deputy Administrator on a bimonthly basis to

discuss the implementation of his individual leadership and management plan, and his work with the executive coach. The Deputy

Administrator’s meetings with IG Cobb will be one way of monitoring his progress and his commitment to improving his management skills. In addition, there are a number of options available to

OIG staff to report any future allegations of inappropriate actions.

[The prepared statement of Mr. Morrell follows:]

PREPARED STATEMENT OF PAUL MORRELL

Mr. Chairman, in his March 14, 2007 letter to Clay Johnson, Chairman of the

President’s Executive Councils on Integrity and Efficiency, NASA Administrator Michael Griffin wrote:

I will schedule a meeting with the employees of the NASA Office of Inspector

General to inform them that I have reviewed the [Report of Investigation regarding the allegations of misconduct on the part of NASA Inspector General

Robert Cobb] and I have taken the actions that I believe are necessary to address the [Report of Investigation’s] findings. Such a meeting will provide me

an opportunity to listen to any concerns that may exist among the staff and to

express my support for a strong and effective Office of Inspector General.

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

In my meeting with IG Cobb and the OIG staff, I will make clear that I expect

and support a strong OIG which continues to be dedicated to identifying fraud,

waste, and abuse, and that I am committed to leading an Agency where full and

frank discussions are not just tolerated but are expected, condoned, and encouraged in a climate without fear of retribution, and one in which the full panoply

of protections exists for ‘‘whistleblowers.’’

The meeting between the Administrator and the Office of Inspector General (OIG)

staff took place on Tuesday, April 10.

On Monday, April 9, I contacted the Office of Public Affairs to inquire about using

the NASA TV facilities available in the headquarters auditorium for the April 10

meeting, which included OIG staff at headquarters and the various NASA centers

across the country. The meeting was on a sensitive subject and I wanted the OIG

staff to feel free to participate in a full and open dialogue. Therefore, I asked Public

Affairs to determine if the equipment used in the auditorium could limit the broadcast of the meeting solely to meeting participants.

Later that day I was informed that the auditorium equipment would not allow

the meeting to be limited to participants and it was recommended that the Headquarters video conferencing facility be used instead. Concerned that the size of the

video conference facility was not adequate to accommodate the number of OIG staff

expected at the meeting, I went to the facility and spoke to its manager, Mr. Fred

Berger. During my conversation with Mr. Berger, we discussed whether the technology in the auditorium could be used, whether the technology available in the

video conference center could be used in the auditorium, and whether the video facility could accommodate the number of OIG staff expected to attend the meeting.

31

I also told Mr. Berger during our conversation that the meeting should not be recorded. My reason for doing so was my belief that recording the meeting might discourage questions and discussion of OIG staff concerns, which was inconsistent with

what I believed was the Administrator’s stated purpose for the meeting.

The next day, on April 10, shortly after I arrived at the meeting with the Administrator, I noticed a display on a video monitor at the front of the room that indicated the meeting was, contrary to my instructions, being recorded. Later that day,

I placed a call to Mr. Berger to inquire why the meeting had been recorded. Mr.

Berger was unavailable and he returned my call the following morning as I was

driving to the office. I asked Mr. Berger who recorded the meeting. He said he did.

I asked him why he recorded it contrary to my direction. Mr. Berger said he forgot

that I had asked that it not be recorded and that Mr. Fred Brown, from NASA TV

under the Office of Public Affairs, had requested that the meeting be recorded, and

that Mr. Berger had provided Mr. Brown with a copy of the recording. I told Mr.

Berger that I thought it was highly inappropriate for someone in Public Affairs to

request a recording of a meeting between the OIG staff and the Administrator, especially when I told him the previous day that it should not be recorded. I asked Mr.

Berger to retrieve the recording from Public Affairs.

I next spoke by phone with my secretary who informed me that Mr. Bob Jacobs,

from the Office of Public Affairs, had delivered DVD copies of the meeting to my

office. I was, needless to say, surprised to learn that not only had the meeting been

recorded and provided to Public Affairs, but copies were being made.

When I arrived at the office, I immediately went to see Mr. Jacobs. I asked Mr.

Jacobs if he had requested that the meeting be recorded. He said that he had. I told

Mr. Jacobs that I believed it was highly inappropriate for him to have requested

a recording of a closed meeting between the Administrator and the OIG staff. I told

Mr. Jacobs that he did not have the authority to request recordings of the Administrator’s non-public affairs related meetings. I requested that he provide me with any

additional copies that he had in his possession, which he in turn did.

I then went to see Mr. Fred Berger, the manager of the video conferencing facility.

When I arrived at Mr. Berger’s office he was there with Mr. Fred Brown, of NASA

TV. Mr. Berger gave me several more DVDs. I asked him if what I had in my possession represented all of the copies. He said yes.

I took the DVDs to the NASA General Counsel. I explained to Mr. Mike Wholley

what had happened—that a non-public affairs related meeting had been recorded

by Public Affairs without proper consent or authorization, despite the fact that I

said it should not be recorded. I asked Mr. Wholley what I should do with the

DVDs. He said I should leave them with him. I left the General Counsel’s Office

believing they were in the appropriate hands.

I never directed that any DVD or recording be destroyed. It was my understanding that the original recording had been made at headquarters, and that all

existing copies had been taken to the Office of the General Counsel. To the best of

my recollection and belief, I was unaware that copies of the meeting had been made

and destroyed at NASA centers until some time after the April 10 meeting had occurred.

It was and remains my strong belief that the Office of Public Affairs had no legitimate reason or authority to request, copy, or possess a recording of what was a nonpublic affairs related meeting between the Administrator and the OIG staff. Furthermore, it was and remains my very strong belief that participants in a closed

meeting have the right to expect that the contents of that meeting will remain secure and private even when they know the meeting is being recorded internally. It

was my very strong concern that possession of this recording by Public Affairs compromised the foregoing.

The Subcommittee asked me to address my role in the Administrator’s response

to the report of the President’s Council on Integrity and Efficiency (PCIE). My role

was as a facilitator—scheduling meetings, conveying information, and coordinating

the preparation, editing, review, and approval of correspondence. I did not review

the Report of Investigation and I did not make any recommendations to the Administrator regarding his response to the Report of Investigation.

As you know, the Administrator recommended several actions to the Chairman

of the PCIE and obtained his concurrence consistent with the Inspector General Act.

Those recommendations included IG Cobb’s attendance at Federal Executive Institute courses and the assistance of an executive coach to help enhance the IG Cobb’s

leadership and management skills. In addition, IG Cobb will meet with the Deputy

Administrator on a bimonthly basis to discuss the implementation of his individual

leadership and management plan, and his work with the executive coach.

The Deputy Administrator’s meetings with IG Cobb will be one way of monitoring

his progress and his commitment to improving his management skills. In addition,

32

there are a number of options available to the OIG staff to report any future allegations of inappropriate actions.

Thank you.

DISCUSSION

Chairman MILLER. Thank you, Mr. Morrell.

On the documents, or most of the documents that NASA has provided in response to this committee’s request, there is, stamped in

large type across the face of the document, in a way that almost

obscures the contents of the documents, makes them very hard to

read, and in the original, I understand that it is in red ink: ‘‘This

document is provided by NASA solely for Congressional use and

not for further release. No waiver of FOIA exemption or internal

agency working document/predecisional/attorney-client privileges

are waived in this provision for Congressional use beyond the purposes of the committees making the request.’’ To whom is that

warning intended?

Mr. WHOLLEY. Sir, I don’t believe it is a warning. I believe it is

the recognition that these are, in many cases, predecisional documents that would not be releasable under FOIA, and it was not intended, certainly, as a warning to this committee.

Chairman MILLER. All right. Do you contend that this committee

cannot release the documents that you have provided us, under our

oversight authority, to the public?

Mr. WHOLLEY. Sir, if we were requested for them, we would deny

them under FOIA.

Chairman MILLER. But you don’t claim that this committee

cannot——

Mr. WHOLLEY. I make no such claim.

Chairman MILLER. Okay. I am struck by two provisions of passages in Mr. Morrell’s testimony and Mr. Wholley’s testimony. Mr.

Morrell, you quoted the letter from Administrator Griffin on the

first page of your testimony: ‘‘I am committed to leading an agency

where full and frank discussions are not just tolerated, but are expected, condoned, and encouraged, in a climate without fear of retribution, and one in which the full panoply of protections exist for

whistleblowers.’’

Mr. Morrell, do you think that is the climate in which NASA and

every agency should conduct their business? And Mr. Wholley, do

you agree with that?

Mr. MORRELL. Yes, sir.

Chairman MILLER. Okay. Mr. Wholley, in your testimony, you

said: ‘‘My sense is that the allegations have been slipped under the

door or thrown over the transom, often anonymously or with the

request of anonymity, and in all too many cases, they are immediately given a mantle of credibility, because they originate from

someone ‘‘familiar with the issues,’’ and therefore ‘‘must be true.’’

In the best of all possible worlds, individuals making such allegations would be required to swear to the truth of what they are saying, and would be made aware of the consequences of any false

statement.’’

Mr. Wholley, aren’t we talking about the same people? Aren’t we

talking about whistleblowers?

Mr. WHOLLEY. Sir, I——

33

Chairman MILLER. People who throw allegations over the transom to us?

Mr. WHOLLEY. Sir, this was not referring to things that have

come before the Committee. It was referring to the number of allegations against Mr. Cobb in that Report of Investigation, many of

which were unfounded, some of which were dismissed out of it.

Chairman MILLER. Those were from NASA employees that were

whistleblowers, were they not?

Mr. WHOLLEY. I am not sure who they were, sir, and I am not

sure how many of them would qualify as whistleblowers.

Chairman MILLER. Okay. Well, it seems like there is some category of a NASA employee that is a whistleblower, and that is a

good thing. That is a wholesome thing. They are patriotic Americans. And then, there is some other category of NASA employees

who throw things over the transom and request anonymity for it

that is an unwholesome thing. Can you tell us how we are supposed to tell the difference?

Mr. WHOLLEY. Sir, I am not saying that one should try and distinguish the difference. What I said was when they come in that

way, one needs to, as best as possible, try and find the factual

underpinnings for whatever is being said, as opposed to taking it

as gospel as it comes through.

Chairman MILLER. Okay. Mr. Morrell, you spoke approvingly, or

quoted approvingly from Mr. Griffin’s letter, how whistleblowers

should be regarded and protected. Do you see anything in Mr.

Wholley’s testimony that is contrary to how you describe the way

whistleblowers should be treated or regarded?

Mr. MORRELL. I don’t want to speak for Mr. Wholley, but I do

believe that whistleblowers should have all the protections afforded

under law.

Chairman MILLER. Mr. Sensenbrenner. I will have time for additional questions.

MORE ON THE DESTRUCTION OF DOCUMENTS

Mr. SENSENBRENNER. Thank you, Mr. Chairman.

I want to get to the tape of the meeting, and what happened to

it, and I have 44 United States Code Section 3301, and I will quote

it in total: ‘‘ As used in this chapter, ‘‘records’’ includes all books,

papers, maps, photographs, machine readable materials, or other

documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States under federal law in connection with the transaction of public business and

preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the

Government or because of the informational value of data in them.

Library and museum material made or acquired and preserved

solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of

publications and of processed documents are not included.’’

Now, from that, it appears that the tape was a public record,

that was at least preserved for a brief period of time, or appropriate for preservation, because it did deal with the functions, policies, decisions, procedures, operations, or other activities of the govVerDate 11-MAY-2000 15:32 Jan 27, 2008 Jkt 035599 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 C:\WORKD\I&O07\052407\34599 SCIENCE1 PsN: SCIENCE1
34

ernment. So, I think it is very clear that the tape was a public

record.

Now, it is also a crime to destroy public records. Mr. Wholley,

with your legal analysis of having these records destroyed, were

you familiar with the litigation relative to Henry Kissinger’s notes

while he was at the State Department?

Mr. WHOLLEY. No, sir. I can’t, I cannot own up to some familiarity with it.

Mr. SENSENBRENNER. Okay. Well, let me tell you what they said.

First of all, in Reporters Committee for Freedom of the Press v.

Vance, which was decided by the U.S. District Court for the District of Columbia, the notes that were made of Kissinger’s conversations while at the State Department were federal records

under the FRA. Then, that case went up, and there was other litigation, and it said the determinant factor for creating a federal

record is whether the record was made at government expense,

that is, with government materials and on government time. I

think very clearly this tape was made at government expense, with

government materials, and on government time.

Have you ever been asked to give advice to anybody in NASA relative to what records can be destroyed, and if so, what was that?

Mr. WHOLLEY. No, sir. I can’t say that I have been personally

asked to give advice to anybody on that.

Mr. SENSENBRENNER. Well, isn’t it your job, when an issue like

this comes up, and you were personally involved in destroying at

least the tapes that were in the NASA headquarters, that you

should be concerned about what the law is on this subject?

Mr. WHOLLEY. Yes, sir.

Mr. SENSENBRENNER. Okay. Is it your belief that the tape, once

it was made, was a government record?

Mr. WHOLLEY. No, sir.

Mr. SENSENBRENNER. Why not?

Mr. WHOLLEY. If—had it been—had that been my belief, sir, I

would not have destroyed it.

Mr. SENSENBRENNER. Well, why not? I read the relevant portions

of the law.

Mr. WHOLLEY. Yes, sir.

Mr. SENSENBRENNER. I read the determinant cases, when Mr.

Kissinger claimed that his notes should be private, and not government record, you know, it isn’t very hard to dig the cases out. Isn’t

that the job of a General Counsel to do that?

Mr. WHOLLEY. Yes, sir. It is.

Mr. SENSENBRENNER. Okay. Well, it wasn’t done. Now, Mr.

Morrell. You testified you didn’t have anything to do with the destruction of the tapes, and did you speak to the technician, Mr.

Berger, who made the tapes, after the teleconference?

Mr. MORRELL. The next morning, sir.

Mr. SENSENBRENNER. Okay. And after your conversation, did Mr.

Berger erase his copy of the teleconference, and called NASA centers up, asking them to do the same?

Mr. MORRELL. I have heard that he had.

Mr. SENSENBRENNER. Okay. Did you ask him to do it?

Mr. MORRELL. I did not.

Mr. SENSENBRENNER. Okay.

35

Mr. MORRELL. It was my understanding that the recording had

been made at headquarters.

Mr. SENSENBRENNER. Who is Keith Thomas Sefton?

Mr. MORRELL. He is Mr. Wholley’s Deputy.

Mr. SENSENBRENNER. So, he is an attorney as well? Okay. Berger

wrote, on an e-mail to Mr. Sefton, dated April 30, which was after

the April 27 meeting: ‘‘At 10:15 a.m. on Wednesday, April 11, 2007,

I received a call from Paul Morrell. During that phone conversation, Paul asked me to contact my counterparts at the centers to

find out if those who recorded the meeting still have the recordings,

or if they could retrieve them. Paul wanted me to ask them to

erase videotapes or shred DVDs of their recordings.’’ And this was

an e-mail from Fred Berger to Keith Sefton.

Mr. Wholley, were you aware of that e-mail?

Mr. WHOLLEY. No, sir. Not at the time.

Mr. SENSENBRENNER. So, your deputy didn’t tell you this?

Mr. WHOLLEY. Sir, to be honest with you, I was trying to stay

away from—in fact, when—well, the answer is I can’t remember

when I learned of it, but you know——

Mr. SENSENBRENNER. What were you planning on staying away

from?

Mr. WHOLLEY. I wanted to stay away from any involvement that,

because I was involved in the destruction of tapes, I wanted to stay

away from any involvement in talking to any of the witnesses. In

fact, when the Committee asked for any e-mails, or any documents,

I turned my computer over to another attorney in the office, and

said this is everything I have, just take what you believe is responsive.

Mr. SENSENBRENNER. And what—which attorney was that?

Mr. WHOLLEY. That was Ms. Donovan.

Mr. SENSENBRENNER. Now——

Mr. WHOLLEY. I believe she worked with her supervisor, Mr. Falcon.

Mr. SENSENBRENNER. Okay. And Mr. Morrell, I have read you

this e-mail from Fred Berger, who was the technician that did the

recording, to Keith Thomas Sefton, who works in Mr. Wholley’s office.

That is at variance with the testimony that you have given and

the answer to my question. How can you explain that?

Mr. MORRELL. I can’t explain it, sir. All I know is I asked where

it was recorded. He said he recorded it at headquarters. He said

that it had been given to Public Affairs, and I asked him to get it

back. Never any——

Mr. SENSENBRENNER. I would repeat what is in the—part of the

mail: ‘‘Paul wanted me to ask them to erase videotapes or shred

DVDs of their recordings.’’

Mr. MORRELL. I did not do that. When I had all the copies that

were at headquarters, Mr. Berger gave me the final copies, I asked

him was this everything, and he said yes.

Mr. SENSENBRENNER. Okay.

Mr. MORRELL. And at that point, I knew I didn’t know what

needed to be done with them, so I took them to the General Counsel.

36

Mr. SENSENBRENNER. Okay. Thank you, Mr. Chairman. I have no

further questions.

Chairman MILLER. Mr. Feeney.

MORE ON THE APRIL 10TH MEETING

Mr. FEENEY. Mr. Wholley, I think it was, at best, a foolish mistake to destroy the videotapes. I want to make that clear. But I

also want to ask you some questions. Is it your understanding that

as part of a decision-making process before a final conclusion or decision or report is issued, that notes and documents that are used,

in terms of developing the final decision, are subject fully to the

FRA?

Mr. WHOLLEY. I would have to look at that in context. I am not

quite sure I have the entirety of your question. Predecisional stuff

that——

Mr. FEENEY. Predecisional.

Mr. WHOLLEY. No.

Mr. FEENEY. And in the two letters that Mr. Griffin penned, the

first letter, of March 14, he says that one of the purposes is to have

an opportunity and ‘‘to listen to any concerns that may exist

amongst the staff, and to express my support for a strong and effective Office of Inspector General.’’ In his subsequent letter to Clay

Johnson, on March 29, he says that he wants to make it clear that

he is ‘‘committed to leading an agency where full and frank discussions are not just tolerated, but are expected, condoned, and encouraged.’’

And it seems to me, when I am trying to have that sort of conversation with my staff, that a video recording is the last thing I

want to encourage those sorts of full and frank discussions. And so,

do you share Mr. Morrell’s opinion that this meeting should never

have been taped in the first place, given the purposes that Mr.

Griffin laid out in those two letters?

Mr. WHOLLEY. Yes, sir. I share that. As I recall, the conversation

when he came in that morning, which was the morning of the 11th,

with the copies that Public Affairs had made, as you could tell, his

concern was that Public Affairs had no right to tape a meeting that

was supposed to be a private, internal, closed meeting between the

Administrator and the staff of the Inspector General. If I may, the

first time I became aware, and this relates back to something Ms.

Klemstine said, and the first time I became aware that there was

an internal policy within the IG that their meetings are recorded,

so other people can see them, was when I saw the IG’s response

back. I did not consider this an IG’s meeting. It was an Administrator’s meeting.

Mr. FEENEY. And you were in the meeting. Is——

Mr. WHOLLEY. Sir, I walked in with Mr. Morrell and Mr. Griffin,

and Mr. Griffin walked immediately to the front of the room, faced

the audience, and began talking.

Mr. FEENEY. Did you know that the meeting was being recorded

at that point?

Mr. WHOLLEY. No, I did not. I know there were signs up. I was

sitting, what would have been on the very far right of a semicircle,

as Dr. Griffin looked, and Mr. Berger was in front of me. There

may well have been signs. I was, I just did not see them.

37

Mr. FEENEY. Our last two witnesses, including Ms. Klemstine,

said that it was clear to people that were viewing the monitor that

the meeting was being recorded. That was my understanding of her

testimony. Did you know that, Mr. Morrell?

Mr. MORRELL. Yes, there were signs.

Mr. FEENEY. There were signs, but Mr. Wholley, you didn’t see

the signs?

Mr. WHOLLEY. I didn’t see them. I mean, frankly, I wasn’t looking for them.

Mr. FEENEY. Well, one can only wonder, given the fact that there

were concerns that Mr. Cobb was in the room, apparently. There

were concerns about the tenor of Mr. Griffin’s remarks. One can

only—but nobody expressed them at that meeting. One can only

wonder whether it was the video, as much as anything, that may

have intimidated some of the people that had concerns that they

expressed after the meeting, but not at the meeting.

And so, again, I want to say that at best, it was a foolish decision, in my view, in retrospect, to destroy the tapes that should

have not been made in the first place, but it seems to me clear that

if I were having a meeting like this with my staff, video cameras

on all of us would be the last thing that I would want to encourage

full and frank discussions and concerns.

And with that, I yield back the balance of my time.

Chairman MILLER. Thank you. Mr. Morrell, I also would like to

encourage candor within your staff. You believe that it would inhibit, kill candid discussions within the staff to have it videotaped,

but having a discussion of the findings of improprieties of the allegations of misconduct by the Inspector General Cobb, with their supervisor, Inspector Cobb, sitting right there, would not inhibit the

discussion. That could be free, that could be open, that could be

candid, with him sitting right there?

Mr. MORRELL. I didn’t say that. I am sure that some people may

have felt intimidated by having him there.

Chairman MILLER. All right. And do you think that inhibited

conversation within that room?

Mr. MORRELL. Perhaps it did. It would be very possible, in fact.

Chairman MILLER. Very much sense that it would?

Mr. MORRELL. Perhaps some people would be inhibited to speak

up. I think it—I mean, people did ask questions. I thought perhaps

some people would have—there would have been more than what

there was, but——

Chairman MILLER. Well, the Inspector, the guy they are talking

about is sitting right there, beside Administrator Griffin. Is that

right?

Mr. MORRELL. He was not beside the Administrator.

Chairman MILLER. He was in the room. Okay. And they were

talking about him. And they were talking about allegations of misconduct by him.

Mr. MORRELL. Correct.

Chairman MILLER. And that, you thought, could be an uninhibited, free, candid discussion.

Mr. MORRELL. I didn’t say—Mr. Chairman, I didn’t say that. I

can tell you that the Administrator felt that if he was going to be

talking about the IG, the IG should be in the room.

38

Chairman MILLER. If you were concerned, Mr. Morrell, it strikes

me if you were concerned about the candor in the room, and making people feel that they should have an uninhibited discussion, to

say what was on their mind, that it was not the taping of it that

inhibited that, it was having Mr. Cobb right there, and also, the

tenor of what we understand Administrator Griffin said.

Now, we don’t have the tape to see what he said. We have still

not been provided the written statement that you said that he

used, but——

Mr. MORRELL. On the written statement, it was prepared from

some talking points that we had prepared, and——

Chairman MILLER. And can we get those?

Mr. MORRELL. You should have them already.

Chairman MILLER. We do not.

Mr. MORRELL. I can get them to you, but they were provided, I

believe, in the first set of documents that you requested.

Chairman MILLER. All right.

Mr. MORRELL. It is not a complete document. It is a partial document, of what he used.

Chairman MILLER. All right. Mr. Morrell, Mr. Wholley wrote you

an e-mail on March 14, which we have been provided, about this

proposed meeting. The proposal in the letter to Clay Johnson that

Mr. Griffin would address the Inspector General staff. It is before

you, as Exhibit 10. Do you have it?

Mr. MORRELL. Yes, sir.

Chairman MILLER. All right. Do you recognize that e-mail?

Mr. MORRELL. I do.

Chairman MILLER. Okay. Can you read it through the warning

that you not disclose it beyond the Congressional Committee?

Mr. MORRELL. I can probably get through it.

Chairman MILLER. Okay. I would like to read from it: ‘‘Paul, I

wasn’t very articulate in our discussion last night and I apologize.

Truth is, I am very troubled by the proffered ‘‘addition’’ to the letter,’’ ‘‘to call a ‘‘special meeting’’ of the IG staff and not be prepared

to back Moose,’’ that is the Inspector General Cobb, ‘‘in a strong

way would undercut Moose, grant more credibility to the complaints, and the investigation than warranted, and be, I believe,

counterproductive. On the other hand, to call a special meeting and

praise Moose in front of the selected group,’’ the IG staff, ‘‘will risk

Mike becoming the center of the controversy,’’ Mr. Griffin, Administrator Griffin. ‘‘As I said last night, I see no upside for Mike in the

proposed course of action, and I do see a downside. I know that this

is a not a legal matter, but I am concerned about how this will play

out if the suggested course of action is adopted.’’

Do you remember getting that e-mail?

Mr. MORRELL. Yeah.

Chairman MILLER. Okay. Did I read that faithfully?

Mr. MORRELL. I believe so.

Chairman MILLER. All right. Do you recall the conversations that

you had with Mr. Wholley?

Mr. MORRELL. Vaguely.

Chairman MILLER. Okay. Do you recall the e-mail?

Mr. MORRELL. Yes.

Chairman MILLER. Okay. Did you have the same concerns?

39

Mr. MORRELL. I raised this issue with the Administrator. He did

not believe that he was going there to defend the IG or to criticize

the IG, but to talk about facts, and it was something that he decided he wanted to do.

Chairman MILLER. Okay. Well, the concern, the reaction that the

previous two witnesses, Mr. Winters and Ms. Klemstine, in particular, described, aren’t those exactly the reactions that Mr.

Wholley was concerned would result from such a meeting?

Mr. MORRELL. I believe so.

Chairman MILLER. All right. Did you share those concerns? Did

you have the same concerns that Mr. Wholley had?

Mr. MORRELL. I don’t believe at the time I did. I believed that

the Administrator would go in, discuss facts——

Chairman MILLER. All right.

Mr. MORRELL.—what we was asked to do, what he decided to do,

and what his expectations were for the Office, as he stated in his

letter.

Chairman MILLER. All right. All the testimony today has been

that there were signs everywhere. There were—let me not exaggerate. There were visible signs, readily visible signs, saying that

the meeting was being taped. The two previous witnesses said that

they noticed the signs. They assumed that they were being, the

meeting was being taped. Did you notice those signs?

Mr. MORRELL. I did.

Chairman MILLER. All right. Why did you not say at the time to

stop the taping of the meeting?

Mr. MORRELL. When I noticed that the Administrator was already speaking, Mr. Berger was at his console working, and I decided it wasn’t appropriate to interrupt the meeting.

Chairman MILLER. I have abused my time again. Mr. Sensenbrenner.

Mr. SENSENBRENNER. I will yield the Chairman my time.

MORE ON THE DESTRUCTION OF DOCUMENTS

Chairman MILLER. All right. You had collected the DVDs. You

took them to Mr. Wholley. Why did you take them to him? He said

that you didn’t specifically say destroy these. What did you say?

Mr. MORRELL. I believe what I told—I recapped what had happened, that I didn’t ask—I asked that the meeting not be recorded,

but Public Affairs had apparently put in a request. I thought it was

inappropriate, didn’t believe that Public Affairs had any authority

or legitimate reason for doing so, that I collected them, take them

from Public Affairs, and I had them, and I didn’t know what to do

with them.

Chairman MILLER. What did you expect Mr. Wholley would do

with them?

Mr. MORRELL. Part of the reason I brought them to him was because they had maintained the records on the IG investigation, and

I figured he would be, you know, he and his office would know

what to do with them.

Chairman MILLER. Did you say that to Mr. Wholley, that because

he was maintaining the other records pertaining to the——

Mr. MORRELL. No, what I asked him was what should I do with

these?

40

Chairman MILLER. And he said leave them with me?

Mr. MORRELL. Yes.

Chairman MILLER. Did it not occur to you that he might infer

from your conduct that you wanted them destroyed? I mean, it

seems like you came powerfully close to saying, ‘‘Will no one rid me

of these troublesome DVDs, these meddlesome DVDs?’’

Mr. MORRELL. No, sir. That was not my intent. I was never, it

was never my intent to destroy anything.

Chairman MILLER. Did you ask Mr. Wholley if you could throw

the tapes away?

Mr. MORRELL. No.

Chairman MILLER. Did you ask him if the tapes could be destroyed?

Mr. MORRELL. No.

Chairman MILLER. Did you ask him to research the law on what

needed to become of the tapes?

Mr. MORRELL. I believe as I was leaving, he said he was, something to the effect that he would look into it, or something to that

effect.

Chairman MILLER. Mr. Wholley, how many lawyers reported to

you at that time?

Mr. WHOLLEY. In the Office of General Counsel?

Chairman MILLER. Yes, sir.

Mr. WHOLLEY. At headquarters, in the neighborhood of 35.

Chairman MILLER. And were there others in other places within

NASA?

Mr. WHOLLEY. Yes, there are attorneys at all ten centers.

Chairman MILLER. And how many attorneys in all are there?

Mr. WHOLLEY. Approximately 152 at this time.

Chairman MILLER. 152 lawyers, and 35 are right there at your

elbow.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. Did you ask any of them to research

the law on your behalf?

Mr. WHOLLEY. No, sir.

Chairman MILLER. You did not give the research assignment to

any lawyer?

Mr. WHOLLEY. No, sir.

Chairman MILLER. You looked at the books yourself?

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Generally, I applaud that in lawyers. It

doesn’t happen often. Do you have a background in FOIA or

records, or records law? You said earlier you are not familiar with

the case law that Mr. Sensenbrenner referred to. Is that an area

that has been an area of specialty for you, or concentration?

Mr. WHOLLEY. Certainly not a specialty, sir. In terms of my past

time serving as the Staff Judge Advocate of various commands and

serving at headquarters.

Chairman MILLER. Were there lawyers within the 160, however

many who reported to you, who did have that as an area of their

concentration?

Mr. WHOLLEY. Yes, sir. That would be the General Law Section.

Chairman MILLER. The General Law Section, but you did not inquire of anyone in the General Law Section?

41

Mr. WHOLLEY. I did not.

Chairman MILLER. Why did you not?

Mr. WHOLLEY. Well, I guess one reason, it was a very sensitive

matter. As my attorneys will tell you, I do a lot of my own research. Even after they present a product, although it is not a

question of not trusting them. I am, as you may have gotten from

my statement, I am a show me the data, look at the law. I looked

at exactly what Ranking Member Sensenbrenner said, ‘44 U.S.C.

sec. 44.’ I looked at the FOIA. And sir, as I mentioned in my written remarks, I didn’t start on this right away. It was some time

later that day. There were other things going on. It was some time

later that day. From my perspective, these were recordings that

were made by the Public Affairs Office, of a private, closed meeting

of the Administrator. They should not have been made.

Chairman MILLER. All right. Mr. Wholley, Mr. Morrell discussed

the e-mail that you sent him before the meeting, that I read aloud.

Do you recall that e-mail? Do you recall your conversations about

your concern about how it looked?

Mr. WHOLLEY. I don’t recall the conversation from the night before. I do recall the e-mail.

Chairman MILLER. Okay. So you expressed a concern in the email about how it would all look one way or the other.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. And so, you were present at the meeting, correct?

Mr. WHOLLEY. Yes, sir. I was.

Chairman MILLER. Okay. Were you aware then of the concerns

that Ms. Klemstine expressed, and Mr. Winters expressed, that the

staff members felt about what was said at the meeting?

Mr. WHOLLEY. No, I was not aware then, sir, and it is——

Chairman MILLER. Well, hearing what happened at the meeting,

did you have any of those concerns yourself?

Mr. WHOLLEY. No.

Chairman MILLER. But you did know that there was a very

strong potential problem one way or the other, of this meeting not

looking good, of—either if Administrator Griffin said Moose Cobb

is my boy, or if he criticized Moose Cobb to his own employees?

Mr. WHOLLEY. Yes, sir. I had concerns.

Chairman MILLER. Okay.

Mr. WHOLLEY. They were expressed in the e-mail.

Chairman MILLER. And you knew at the time that this was a

subject, at that point, Senator Nelson, Chairman Bart Gordon, and

I had all urged the President to fire Moose Cobb. You knew that,

did you not?

Mr. WHOLLEY. I am trying to put, I believe your letter was, that

particular letter was early April, April 3, perhaps.

Chairman MILLER. April 2.

Mr. WHOLLEY. Second.

Chairman MILLER. But that was before the meeting.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. It was before the tapes were destroyed.

Mr. WHOLLEY. Yes, sir.

42

Chairman MILLER. Okay. You knew that how this whole matter

was being handled was something that the oversight committees of

Congress were interested in, did you not?

Mr. WHOLLEY. I knew they were interested in the matter, yes,

sir.

Chairman MILLER. Okay. And you knew, you said that you did

not want this to subject to FOIA if you kept it. Isn’t that right?

Mr. WHOLLEY. That is what I said, sir. If, but as I, that is only

half of what I said. I said I did not believe they were agency

records, but if we retained them, they would become agency

records. From my perspective, we had five copies that Public Affairs had made of a closed meeting between the Administrator and

the IG staff, that was not only not authorized, but was specifically

said not to be recorded.

Mr. SENSENBRENNER. Will the Chairman yield?

Chairman MILLER. The Chairman happily yields.

Mr. SENSENBRENNER. In what part of the Federal Records Act is

it intended to encourage agencies to destroy records promptly so

that they won’t become records? Is there any clause in that? I

haven’t been able to find it.

Mr. WHOLLEY. Sir, I have never looked for that clause, nor have

I been able to find it.

Mr. SENSENBRENNER. Well, it isn’t there. I yield back to the

Chairman.

Chairman MILLER. Thank you, Mr. Sensenbrenner.

Mr. Wholley, you are also a lawyer, and the General Counsel of

NASA. Are you familiar with the evidentiary concept of spoilation,

s-p-o-i-l-a-t-i-o-n, spoilation?

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. And describe that concept for me.

Mr. WHOLLEY. Basically, inferences can be taken negative to the

person who fails to provide certain evidence.

Chairman MILLER. And certainly, destroys it, knowing that that

the documents are subject to, would be evidence in a pending litigation, or anticipated litigation, or an inquiry from Congress?

Mr. WHOLLEY. Yes, sir. May I continue?

Chairman MILLER. You may.

Mr. WHOLLEY. I don’t know how to get that across any more

clearly. At the time that I, having finished my research, which we

now may say was not sufficient, at that time, I did not believe they

were federal records. I did not believe Public Affairs should have

copies. I did not believe there was any reason for these copies to

exist and be filed, or they could become federal records, and possibly FOIA-able, and as perhaps impossible as this may seem, I did

not consider, truly, I did not consider the political aspects of this.

As I have said, nobody regrets more that I can’t produce that

particular DVD.

Chairman MILLER. And you are aware that now, there are employees of, you spoke of it, or you wrote of it in your written testimony, you did not get to it in your oral testimony, that there are

employees of NASA who attended that meeting, who are now providing us with accounts of the meeting that you described as patently ridiculous, outrageous——

43

Mr. WHOLLEY. Sir, your staff informed me of several allegations

that were patently ridiculous and outrageous.

Chairman MILLER. Knowing everything that you knew then,

knowing that this meeting was in its very conception a problem,

knowing that we were interested, Congress was interested, the

oversight committees were interested in how NASA dealt with the

PCIE recommendations, knowing that we would likely eventually

ask for that DVD, if it still existed, why is there not every element

of spoliation present, so we should assume the worst?

Mr. WHOLLEY. Sir——

Chairman MILLER. Under ordinary rules of evidence.

Mr. WHOLLEY. I cannot stop you from assuming the worst, other

than to say, sir, that there were 120 to 180 people in there, many

of whom were NASA IG investigators. There was certainly no intent on my part to destroy evidence. Frankly, that just was not my

intent. As I have stated to your staff, and as I will state here, what

I did, I did in good faith. If it was a mistake that I made on the

law, it is probably not the first one I have ever made, nor will it,

unfortunately, be the last. But it was an honest mistake, and I

deeply regret that I destroyed them, for the reason that we are now

here debating this.

Chairman MILLER. Okay. Is it your practice to destroy other federal property?

Mr. WHOLLEY. No, sir.

Chairman MILLER. Have you done it on any other occasion?

Mr. WHOLLEY. Not that I can consciously recall, sir.

Chairman MILLER. All right. And how did you do it in this case?

Exactly how did you destroy those DVDs?

Mr. WHOLLEY. Broke them in half, threw them in the trash.

Chairman MILLER. Mr. Sensenbrenner.

Mr. SENSENBRENNER. I have no further questions.

Chairman MILLER. Mr. Wholley, in addition to your e-mail to Mr.

Morrell, you sent an e-mail to Jeff Rosen, the counsel at OMB for

Clay Johnson.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Dated April 4, 2007.

Mr. WHOLLEY. I do not recall that particular e-mail, sir.

Chairman MILLER. Okay. It is in the evidence book as Exhibit

18–B, the exhibit book.

Mr. WHOLLEY. Sir, my #18 is——

Chairman MILLER. 18–B.

Mr. WHOLLEY.—the bullet points from——

Chairman MILLER. 18–B. 18–B.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. All right. The subject line is Hearings with

two question marks.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. Now, that was two days after Senator

Nelson, Chairman Gordon, and I called on Mr. Cobb, called on

President Bush to fire Mr. Cobb.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. And in the e-mail, you, of course, point

out the subject of the Cobb case, and you wrote that the Cobb case

‘‘continues to spin up to ‘‘escape velocity,’’’’ and ‘‘the reason for this

44

e-mail is to arrange a meeting between the two us, and anyone else

you care to bring from your staff who has been involved in vetting

this investigation, before there is any hearing, so that we can soberly consider the approach to be taken.’’ ‘‘I am sure that you can

appreciate that I am not particularly keen on seeing two entities

of the Executive Branch at odds in a hearing before the Legislative

Branch.’’

So, you were aware that this would likely be the subject of Congressional hearings.

Mr. WHOLLEY. No, sir. I cannot say I was aware that it was likely.

Chairman MILLER. It was possible.

Mr. WHOLLEY. Possible, yes, sir.

Chairman MILLER. All right. If it was likely, there just would

have been one question mark. Possible was two question marks.

So, you were certainly very, very aware of the Congress’ interest

in this, this committee’s interest in this, and you were getting together with OMB to kind of get on the same page?

Mr. WHOLLEY. No, sir. My concern, which I had expressed as,

since you have all my e-mails, you know, my concern was that the,

concerning the disconnect between the Executive Order, the Integrity Committee policies and procedures, and what had actually

been produced and what transpired. That was my concern, not the

hearing, sir. I mean, you called a hearing. I have given you everything that I have on my computer that my counsels, that my attorneys believe was relevant. I am here to answer any question you

have. My concern was about the way the Executive Order and the

policies and procedures were not properly interfacing in the way

that the investigation came to us.

Chairman MILLER. All right. I am sorry. ‘‘I am sure that you can

appreciate that I am not particularly keen on seeing two entities

of the Executive Branch at odds in a hearing before the Legislative

Branch.’’

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. What was it you were concerned that OMB

and NASA might be at odds about?

Mr. WHOLLEY. It wasn’t so much OMB, sir. It was the Integrity

Committee and the PCIE. And it is not OMB. I was talking to Jeff

Rosen, Mr. Rosen, in his capacity as the Counsel to Clay Johnson,

Chairman of the PCIE. He was well aware, as were others, of my

concerns about the Executive Order and the policies and procedures, and how they were or were not interfacing properly.

Chairman MILLER. All right. Mr. Wholley, could you describe

what your role was in the response by Administrator Griffin to the

findings of the PCIE, the report of the PCIE?

Mr. WHOLLEY. I was given the package, sir. I was given the

package by Mr. Morrell, as I said on, my e-mails reveal it was the

26th. I did review it. I turned it over to someone who knew nothing

about it, a very experienced today, and asked for her unvarnished

opinion on it.

I had her brief Dr. Griffin. I was in the room. At the conclusion

of her brief, he asked me my thoughts. I explained that I was on

all fours with her analysis, which had been done independently. We

had previously or simultaneously given him the range of options.

45

As you know, sir, he has no disciplinary options, which is why his

letter talks in terms of with the concurrence of the Chairman of the

PCIE.

And that was my role, sir.

Chairman MILLER. All right. What was the standard that the attorney that you referred to used in her analysis? Was it one of

criminal misconduct, or was it one of appearances?

Mr. WHOLLEY. I believe she would be better able to answer that,

sir, but I do know that she had the policies and procedures, with

the definitions therein. She had the Quality Standards for Inspectors General. She had the Executive Order. She had all of the, she

had everything I had. And she had a number of years of experience.

Chairman MILLER. And—I am sorry.

Mr. WHOLLEY. I am sorry. I don’t want to speculate. I was going

to say I doubt she used criminal law standards, since any criminal

law violation, I assume, would have been given to the Justice Department, and as you know, sir, the investigation specifically says

there is no violation of law, rule, or regulation, gross misconduct,

or gross waste of funds. They did say there was an abuse of authority in creating a hostile work environment.

MR. WHOLLEY’S RELATIONSHIP WITH MR. COBB

Chairman MILLER. Just one more set of questions, Mr. Wholley.

I know in your written statement, and perhaps in your oral

statement as well, you said that you did not socialize, you do not

visit with Mr. Cobb in his home. He did not visit in your home. You

did talk whenever you saw each other.

Did you have regular meetings with him to discuss matters before your Office or before his Office?

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. And how often was that?

Mr. WHOLLEY. Sir, I would say probably it would be rare that if

I didn’t see him once every couple of weeks.

Chairman MILLER. Okay. Did you——

Mr. WHOLLEY. Probably more. Weekly, ten days.

Chairman MILLER. Did you tell our staff that you met once a

week from the time that you joined NASA?

Mr. WHOLLEY. Yes, sir. Initially, we did have weekly meetings,

when——

Chairman MILLER. All right.

Mr. WHOLLEY. There were weekly meetings between the Administrator, that the parties that were supposed to be at the meeting

were the Administrator, Deputy Administrator, Chief of Staff, Inspector General, and General Counsel. That had existed before I

got there. More often than not, the Administrator wasn’t there. It

was the Deputy Chief, and this was prior to Dr. Griffin arriving.

Chairman MILLER. All right. And did the two of you compare

notes on your discussions with our staff?

Mr. WHOLLEY. No, sir. Compare notes, sir?

Chairman MILLER. Well, that is a phrase. Did you talk with each

other about the interviews?

Mr. WHOLLEY. I think we said something, but it was not, frankly,

it was not what I would consider anything substantive.

46

Chairman MILLER. Okay. And you are familiar with all of the allegations, not just the summary report, but all of the allegations

within the file of the PCIE matter, the Inspector General, began as

an Inspector General’s investigation by the Inspector General of

HUD. Have you reviewed all of that?

Mr. WHOLLEY. Sir, I have reviewed what I was provided, what

NASA was provided. I have reviewed that. I don’t know if I have

everything. I was, as I mentioned to your staff, I dealt with the pile

of wood that was given to us.

Chairman MILLER. All right. In, well, allegation 43, in the Record

of Investigation, again, it is an allegation, was that Mr. Cobb had

improperly provided you information pertaining to criminal cases.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. You are familiar with that allegation.

Mr. WHOLLEY. Yes, sir.

Chairman MILLER. Okay. And you are familiar, you know that

one of the principal concerns about Mr. Cobb’s conduct at NASA

was the inappropriateness of his relationship with Sean O’Keefe,

and how close it appeared to be, rather than an arm’s length independence.

Mr. WHOLLEY. Yes, sir. And again, I believe Mr. O’Keefe left in

February of 2005.

Chairman MILLER. All right. Did you seek advice from Mr. Cobb

on how to manage your own staff, how to lead it, how to deal with

challenges, or did he seek advice from you on those matters?

Mr. WHOLLEY. He did not seek advice from me, no sir.

Chairman MILLER. Did you discuss it?

Mr. WHOLLEY. We discussed leadership at times, sir.

Chairman MILLER. Okay. I have no further questions.

Mr. SENSENBRENNER. Neither do I.

Chairman MILLER. I thank both of you for appearing, and for

your testimony, and I believe that Mr. Sensenbrenner and I have

already discussed further action that we may take. Thank you.

Mr. WHOLLEY. Thank you, Chairman Miller and Mr. Sensenbrenner.

[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]

(47)

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