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44–697 PDF 2008

THE ELECTRONIC RECORDS PRESERVATION AT

THE WHITE HOUSE

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

FEBRUARY 26, 2008

Serial No. 110–80

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on February 26, 2008 ....................................................................... 1

Statement of:

Weinstein, Allen, Archivist of the United States, National Archives and

Records Administration, accompanied by Gary M. Stern, General Counsel, National Archives and Records Administration, and Sharon

Fawcett, Assistant Archivist for Presidential Libraries, National Archives and Records Administration; Alan R. Swendiman, Director, Office of Administration, the White House; and Theresa Payton, Chief

Information Officer, Office of Administration, the White House .............. 42

Payton, Theresa ......................................................................................... 59

Swendiman, Alan R. .................................................................................. 52

Weinstein, Allen ........................................................................................ 42

Letters, statements, etc., submitted for the record by:

Davis, Hon. Tom, a Representative in Congress from the State of Virginia, prepared statement of ........................................................................ 38

Issa, Hon. Darrell E., a Representative in Congress from the State of

California:

Information concerning Lotus Notes ....................................................... 143

Letter dated January 30, 2008 ................................................................. 75

Payton, Theresa, Chief Information Officer, Office of Administration, the

White House, prepared statement of ........................................................... 62

Swendiman, Alan R., Director, Office of Administration, the White House,

prepared statement of ................................................................................... 54

Waxman, Chairman Henry A., a Representative in Congress from the

State of California:

Interrogatories ........................................................................................... 113

Prepared statement of ............................................................................... 7

Weinstein, Allen, Archivist of the United States, National Archives and

Records Administration, prepared statement of ......................................... 46

(1)

THE ELECTRONIC RECORDS PRESERVATION

AT THE WHITE HOUSE

TUESDAY, FEBRUARY 26, 2008

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m., in room 2157,

Rayburn House Office Building, Hon. Henry A. Waxman (chairman

of the committee) presiding.

Present: Representative Waxman, Towns, Cummings, Kucinich,

Davis of Illinois, Tierney, Clay, Watson, Yarmuth, Norton, Sarbanes, Welch, Davis of Virginia, Burton, Mica, Platts, Duncan,

Issa, Foxx, and Bilbray.

Staff present: Phil Schiliro, chief of staff; Phil Barnett, staff director and chief counsel; Kristin Amerling, general counsel; Karen

Lightfoot, communications director and senior policy advisor; David

Rapallo, chief investigative counsel; John Williams, deputy chief investigative counsel; Michael Gordon, senior investigative counsel;

Earley Green, chief clerk; Teresa Coufal, assistant clerk; Caren

Auchman, press assistant; Kerry Gutknecht and William Ragland,

staff assistants; Larry Halloran, minority staff director; Jennifer

Safavian, minority chief counsel for oversight and investigations;

Keith Ausbrook, minority general counsel; Steve Castor and Ashley

Callen, minority counsels; Patrick Lyden, minority parliamentarian

and member services coordinator; Brian McNicoll, minority communications director; Benjamin Chance, minority clerk; and Ali

Ahmad, minority deputy press secretary.

Chairman WAXMAN. Good morning. The committee will please

come to order.

Today’s hearing focuses on whether President Bush and the

White House are complying with the Presidential Records Act.

The Presidential Records Act was enacted in 1978 to ensure that

White House records are preserved for history and are owned by

the American people. It requires the President to preserve the

records that document the activities, deliberations, decisions, and

policies of the White House.

The emergence and remarkable surge in popularity of e-mail has

presented problems in complying with the act. As members of this

committee know, President Clinton experienced these problems. In

1994, he established the Automated Records Management System

to archive Presidential records, including e-mails. But the system

had technical flaws. For a period of time, it would not preserve emails sent by officials whose name began with the letter D.

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Well, in 2000, Dan Burton, who was then Chair of this committee, alleged that the Clinton administration deliberately lost and

withheld e-mails from Congress. Mr. Burton held five hearings on

that issue and forced the White House to spend over $11 million

to reconstruct 200,000 e-mails.

In the end, the overblown charges of wrongdoing were proven

false. The lost e-mails turned out to be the result of a few technical

glitches, not any intentional acts.

The silver lining to the committee’s investigation, though, was

that the problems in the Automatic Records Management System

were addressed. When President Clinton left office and President

Bush came into office, the White House had in place a system for

archiving White House e-mails that complied with the Presidential

Records Act.

That is what makes the actions of the Bush administration so inexplicable.

President Bush’s White House kept the Automatic Records Management System in 2001. But in September 2002, for reasons that

we have never found an adequate explanation, the Bush administration White House decided to replace the Automatic Records

Management System.

In its place, the White House adopted a system that one of its

own experts described as ‘‘primitive’’ and carried a high risk that

‘‘data would be lost.’’ The system also had serious security flaws.

Until the problem was corrected in 2005, all officials in the White

House had access to the archive system and the ability to delete

or alter existing information.

The White House’s own analysis of its system identified over 700

days in which e-mail records seem either impossibly low or completely nonexistent. This 2005 analysis was prepared by a team of

15 White House officials and contractors.

And these are not the only missing e-mails from the White

House. We also know that over 80 White House officials, including

some of the most senior officials in the White House, routinely used

e-mail accounts at the Republican National Committee. The RNC

didn’t preserve e-mails for over 50 of these officials and has few emails for any White House officials prior to 2006.

The result is a potentially enormous gap in the historical record.

Karl Rove, the President’s closest political advisor, was a prolific

user of his RNC e-mail account. Yet, the RNC preserved virtually

none of his e-mails before 2004. The result is that we may never

know what he wrote about the buildup to the Iraq war.

In recent weeks, the White House has launched an all-out attack

on its own analysis of the missing e-mails. One White House

spokesman tried to claim that there were no missing e-mails after

all. Another senior White House official said she had ‘‘serious reservations’’ about the accuracy of the White House’s previous work

and that she had ‘‘so far been unable to replicate its results or to

affirm the correctness of the assumptions underlying it.’’

While many of us have grown used to the White House attacking

congressional or independent study that conflicts with President

Bush’s policies, this is the first time I can remember the White

House using those same tactics on itself. And it is remarkable.

3

But that is not all. The White House is also refusing to cooperate

with the National Archives. For almost a year, the nonpartisan National Archives has been urging the Bush White House to assess

the problem of missing e-mails and to take ‘‘whatever action may

be necessary to restore any missing e-mails.’’

The lack of cooperation became so severe that, last May, the Archivist himself wrote to the White House Counsel, Fred Fielding,

to urge ‘‘utmost dispatch’’ in addressing the missing e-mails.

Yet in September 2007, the Archive’s General Counsel drafted a

memo summarizing the White House’s decision to ignore the request of the Archivist. He wrote: ‘‘We still have made almost zero

progress in actually moving ahead with the important and necessary work that is required for a successful transition. Our repeated requests have gone unheeded. Of most importance, we still

know virtually nothing about the status of the alleged missing

White House e-mails.’’

The Archives also asked the White House to start recovering official e-mails that the Republican National Committee deleted pursuant to its policy of regularly purging e-mails from its servers.

These repeated requests have also been rebuffed. In fact, the RNC

has informed our committee that it has no intention of trying to restore the missing White House e-mails from backup tapes containing past RNC e-mail records.

My staff has prepared an extensive memorandum that summarizes what we have learned through our investigation into the

missing White House e-mails so far, and I ask that this memorandum and the documents it cites be made part of the hearing record.

I also——

Mr. ISSA. Mr. Chairman, I object. Reserving the right to object.

Chairman WAXMAN. The gentleman is recognized on his reservation.

Mr. ISSA. Mr. Chairman, apparently, the memo cites an interrogatory from a gentleman, Mr. McDevitt, and I object because those

interrogatories appear to have been essentially adopted in lieu of

testimony because they appear to support the majority. And, by

definition, if they are allowed to come into the record, what we are

effectively doing is preventing the minority from having an opportunity to openly challenge what seem to be, to us, inconsistent and

self-serving statements.

The fact is that we would like to have a clear hearing and a clear

understanding. We want to have all parties that may have something to say not only say it, but be open to reasonable cross-examination.

Chairman WAXMAN. If the gentleman would permit, let me give

you a clear understanding of what happened. The White House objected to our doing an interview with this person. They suggested

we do a set of interrogatories. We proceeded on a bipartisan basis

at the staff level to do exactly that. We now seek to make this information public.

I know that the Republicans now would say, well, we would like

to have an interview or deposition, but we followed the rules. And

that is what we are seeking today, is to disclose what we have so

far in following the rules.

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If the gentleman objects, he objects, and we will have to have a

vote for the committee at some point during the hearing. But, as

I understand, Mr. Davis does not object. I will yield to him if he

does, but——

Mr. DAVIS OF VIRGINIA. Well, what we do object to is putting the

interrogatories in their entirety into the record, for several reasons,

and our staffs have talked about this. Just as we do with all investigations, all non-White House employees involved have been required to sit for transcribed interviews or deposition, but Mr.

McDevitt was not. The White House’s concerns were no different

for his testimony than for other witnesses that were put under

that, but somehow the majority was most accommodating to Mr.

McDevitt.

We were wondering whether Mr. McDevitt was able to avoid an

on-the-record interview because he supplied a version of the story

that pleased the majority that was critical of the White House, and

that was our concern. The White House’s concerns were no different for his testimony than for other witnesses.

From 2002 to 2006, Mr. McDevitt was responsible for managing

the White House’s e-mail archiving system. In his opinion, 400-plus

days of White House e-mails went missing. This sensational charge

is not supported by the evidence that we have gathered. Though

the course of the investigation——

Chairman WAXMAN. Mr. Davis.

Mr. DAVIS OF VIRGINIA. Yes.

Chairman WAXMAN. Mr. Davis, let me interrupt you.

Mr. DAVIS OF VIRGINIA. Sure.

Chairman WAXMAN. And I am going to give you a full opportunity to debate this question, but I want to respond and then we

will get further along with this.

Mr. DAVIS OF VIRGINIA. Sure.

Chairman WAXMAN. If there is objection, there is objection. We

won’t include it in the record at this point, but we will on a vote

of the committee.

Evidently, the Republicans are unhappy that Mr. McDevitt, who

worked at the White House, gave testimony they didn’t like. But

we followed the rules that the White House set out, and the Republicans were happy for us to follow those rules. And now that they

read the testimony, they would like to impeach the fellow from the

White House who said things that they didn’t like.

Mr. DAVIS OF VIRGINIA. Well, he is no longer at the White House.

Chairman WAXMAN. Pardon?

Mr. DAVIS OF VIRGINIA. He is no longer there.

Chairman WAXMAN. He is no longer at the White House.

Mr. DAVIS OF VIRGINIA. That is correct. In fact——

Chairman WAXMAN. But the White House did not want him to

sit for a deposition, and that is why we did what we did. Ms.

Payton did not have an interview, as the Republicans are asking

that we should have had for Mr. McDevitt.

But the Chair will move on and declare that this will not be part

of the record by unanimous consent, and we will renew the debate

and action by the committee at an appropriate time on a motion

to make this part of the record.

Mr. ISSA. Mr. Chairman, point of inquiry.

5

Chairman WAXMAN. The gentleman will state his point of inquiry.

Mr. ISSA. Does that mean that you are withdrawing your unanimous consent at this time?

Chairman WAXMAN. I will withdraw my unanimous consent. I

am withdrawing my unanimous consent request just as it pertains

to the interrogatories for Mr. McDevitt.

Mr. ISSA. So you are now moving that sans the references to interrogatories, the rest will go forward?

Mr. DAVIS OF VIRGINIA. Which is normal committee practice. I

mean, generally——

Chairman WAXMAN. Is there objection?

Mr. ISSA. Mr. Chairman, I will dispense——

Ms. WATSON. Can you finish your statement, Mr. Chairman?

Chairman WAXMAN. Yes?

Ms. WATSON. Can you finish your statement and then——

Chairman WAXMAN. I finished my statement. We are going to

put in the information except for the interrogatories.

Mr. ISSA. Mr. Chairman, concluding my time, because we were

all speaking, I guess, on my time——

Chairman WAXMAN. Is there an objection?

Mr. ISSA. Mr. Chairman, reserving. I would only like to clarify

that the minority did not sign off, so it was not a bipartisan procedure.

Chairman WAXMAN. That is not a proper reservation. Either you

are for letting this go on the record as Mr. Davis has suggested we

do, as ordinary committee activities——

Mr. ISSA. Without reference.

Chairman WAXMAN [continuing]. Without reference to the interrogatories, or you agree to it. Give us your—you have a reservation.

Give us your withholding of unanimous consent request or agreement to the unanimous consent request.

Mr. ISSA. Without that, I agree.

Chairman WAXMAN. Then that will be part of the record.

Now I would like to continue with my opening statement.

We have this extensive memorandum that summarizes what we

have learned through our investigation into the missing White

House e-mails, and I also urge members of the public to review this

memorandum carefully. E-mail archiving by its nature is a complex

and technical subject. The memorandum provides a guide to what

we have learned from our interviews of White House officials and

our review of over 20,000 pages of internal White House and Archives documents. That is now in this record.

I am determined not to make the same mistakes some of my Republican colleagues made 8 years ago. I don’t want to jump to any

conclusions or make any sensational allegations of wrongdoing

without any evidence.

At the same time, the White House’s actions make absolutely no

sense. There is an old saying—if it ain’t broke, don’t fix it—but

that is exactly what the Bush White House did to the automated

record system. It had a system that archived its e-mails and it intentionally dismantled an effective system and replaced it with a

primitive alternative that just didn’t work.

6

It initiated its own study of missing e-mails in 2005 and now derisively attacks its own work as incompetent and grossly inaccurate.

It has continually resisted not just the efforts of this committee,

but also those of the National Archives, which has the responsibility to carry out the Presidential Records Act.

Well, none of this makes any sense, which is why we are holding

this hearing today and why this hearing is so important.

So I look forward to what our witnesses have to say so that we

can finally start making progress on this important open Government issue.

[The prepared statement of Chairman Henry A. Waxman and

supplemental hearing information follow:]

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Chairman WAXMAN. The Chair would now like to recognize Mr.

Davis for his opening statement.

Mr. DAVIS OF VIRGINIA. Thank you, Mr. Chairman.

Let me say at the front I think the committee is entitled to the

e-mails, and we want to work with you to get them, absent some

showing of privilege, which they have not come forward with yet

because they can’t seem to find them. So I don’t think there is any

disagreement on our wanting to be able to get to that; it is the

characterizations which we differ in our opinion.

Just to dwell on Mr. McDevitt for a minute and why we feel as

passionate as we do about this, from 2002 to 2006, he was responsible for managing the White House’s e-mail archiving system. In

his opinion, 400-plus days of White House e-mails went missing,

but this sensational charge is not supported by the evidence that

we have gathered. Through the course of this investigation, we

have learned that many of these so-called missing e-mails were

simply misfiled.

On Tuesday of last week, the majority issued a set of 47 interrogatories to Mr. McDevitt and, 3 days later, he has replied with 25

pages of responses, a very quick turnaround, indeed, unless he had

been supplied with the questions ahead of time. His robust response is based on dated information, since he left the White House

approximately 18 months ago. A lot of facts about these so-called

missing e-mails have changed, and continue to change.

Our staff has really not had the opportunity to examine Mr.

McDevitt on the record under oath and, consequently, his interrogatory responses, if entered into the record as is, would remain unchallenged, and that is not appropriate.

We spoke with Mr. McDevitt on Sunday afternoon. He remains

unusually passionate about his time at the White House Office of

Administration. We can’t understand his reluctance to be interviewed on the record or why he wasn’t compelled, yesterday, for

testimony on the record.

You have been very accommodating to this witness. Our staff has

made it clear to your staff we wanted to examine him on the

record.

His views on the situation, in my judgment, is colored by his apparent personal investment in various technology decisions that he

made, and many of these were ultimately rejected. Without the opportunity to test Mr. McDevitt’s views on the record, we remain

skeptical of the content of his interrogatory responses, and we

think the committee should as well.

The preservation of essential records, though, is a Governmentwide responsibility and a growing challenge with so much more of

the public’s business done today using electronic media rather than

paper. The massive proliferation of digital records confronts each

branch of Government with complex and potentially costly questions about which records to keep, how long to keep them, and how

best to store and index them for retrieval.

But it appears today’s hearing may be less about preserving

records and more about resurrecting this claim that the White

House lost millions of official e-mails. It is a charge that is based

on a discredited internal report conveniently leaked to the media.

Information gathered since then has forced administration critics to

36

back away from the politically charged allegation and acknowledge

the less sensational but far more probative technical realities that

are at work here.

Regarding the capabilities of the White House’s information technology infrastructure, the facts are not all in yet, and in that respect this hearing would be viewed as premature. But we do know

this much: During the White House migration from Lotus Notes to

a Microsoft e-mail system in 2002, some archive files may have

been mislabeled, making them difficult to find using routine search

protocols.

A preliminary study in 2005 using these old protocols seemed to

show 473 days of which no e-mails were sent at all. The White

House has been very open with our staff about the technical flaws

in that early search and they have devoted substantial technological resources to solving the e-mail glitch.

One of our witnesses today, White House Chief Information Officer Theresa Payton, is leading that effort. Last Friday, she briefed

the committee staff that the 473-day gap has been reduced to 202.

So a substantial portion of the missing e-mails appear not to be

missing at all, just filed in the wrong digital drawer. The restoration recovery process continues and should continue.

But the committee’s voracious appetite for White House e-mails

raises another issue worth discussing today: the boundaries between legitimate oversight and counterproductive intrusion into the

operations of a co-equal branch of Government.

Any frustration at the White House’s inability to instantaneously

produce every conceivable stream of electrons has to be tempered

by both the legal rights and prerogatives of the Executive and by

the technical realities of modern Government recordkeeping.

The Presidential Records Act does not require the White House

to keep every paper or electronic document generated in the course

of daily business. The law requires Presidential records to constitute adequate documentation of official deliberations and decisions.

I expect we will hear today that the White House is well aware

of its obligations under the Presidential Records Act and other

laws, and cognizant of the duty to preserve and provide adequate

Presidential records for the National Archives.

In terms of the scope of the oversight, we should keep in mind

the power of inquiry, when used injudiciously, can become the

power to distract or to disrupt those trying to execute the laws that

we write.

Remember where all this started: an investigation of a GSA administrator. From there we moved to a far broader inquiry into the

Hatch Act compliance at cabinet departments and a subpoena to

the Republican National Committee for e-mails from the White

House. From that inquiry we came to this hearing to discuss emails about e-mails.

At some point this risks becoming investigation for its own sake

or for the sake of private plaintiffs looking to use the committee to

conduct non-judicial discovery in pending lawsuits against the Government. Nor is it the best use of our time and resources to attempt to micro-manage executive branch activities, like the next

37

White House transition, based on groundless suspicions or incomplete investigations into missing e-mails.

Nevertheless, our witnesses can help us understand the intricacies and challenges of electronic records preservation. We welcome

their testimony this morning, and I want to repeat, I think, as, institutionally, the legislative branch does have the right to pursue

these and to get these e-mails, Mr. Chairman.

Thank you very much.

[The prepared statement of Hon. Tom Davis follows:]

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Chairman WAXMAN. Thank you very much, Mr. Davis.

Before we recognize our witnesses, we are going to have a private

discussion and set a time for a debate and a vote on adding the

interrogatories to the record, but I just want to give clarification of

what had transpired.

On January 30th, the committee wrote to Mr. McDevitt asking

him to come in for an interview. He was responsive and immediately scheduled an interview for Monday, February 11th. The

White House then contacted Mr. McDevitt and instructed him not

to discuss with the committee broad areas relevant to our investigation, including ‘‘any deliberative discussions involving the participation of OCIO management.’’

So Mr. McDevitt e-mailed us and he said, based on the direction

of the White House, ‘‘there is practically nothing that I am authorized to discuss with the Committee.’’ As a result, given these limitations placed on us by the White House counsel, he said he would

have to decline our request for an interview. So both sides requested this interview.

Over the next week, minority and majority staff discussed the

committee’s interest in obtaining information from Mr. McDevitt,

and on February 14th our staffs jointly agreed to send Mr.

McDevitt questions in writing, allowing him to share his responses

with the White House counsel. So together our staffs sent him

questions. He responded in writing to those questions. The White

House had a chance to review his answers and they cleared them

without any redactions.

Now, after we got the answers from Mr. McDevitt, his responses

this past weekend, the minority staff indicated they wanted to

speak with Mr. McDevitt in person. Nevertheless, even at this late

date, our staff went to great lengths to accommodate the minority.

After they read his written reports, they didn’t feel comfortable

with it. So, on Sunday night, minority and majority staff jointly

called Mr. McDevitt to see if he would be willing to come in for an

interview or deposition. He stated he still had the same concerns

about the White House instructions. However, he went on to answer questions from the minority, the Republicans, for an hour and

a half, answering every single question they had.

Despite this second opportunity to question Mr. McDevitt, the

minority now says it is somehow unfair to use any information provided by Mr. McDevitt because they didn’t get an opportunity to

question him. Well, they had an opportunity 2 weeks ago. They got

another opportunity on Sunday night, which they fully exhausted.

It seems to me if the minority has a beef with anyone, it should

be the White House Counsel’s Office, since they are the ones who

told Mr. McDevitt he wasn’t allowed to speak with us in the first

place.

Mr. DAVIS OF VIRGINIA. Mr. Chairman, let me just quickly——

Chairman WAXMAN. Yes.

Mr. DAVIS OF VIRGINIA. We will talk about this and we will find

an accommodation, but let me just say that there were six other

witnesses that were subject to the same White House ground rules,

and they were brought in for on-the-record interviews and cross-examination. Mr. McDevitt was the only one who was accommodation, we believe, because he fit the story you wanted to tell. And

41

we think that there is another side to that and we would like that

opportunity. I don’t care what the White House Counsel’s Office

says on this. We are speaking to this as a review committee.

But we can have this discussion down the road and try to reach

an accommodation, and hopefully we can move ahead with our witnesses.

Chairman WAXMAN. But I might point out that the other witnesses agreed to come in. Mr. McDevitt refused to come in for an

interview. And he did that because the White House told him there

was nothing he could say to us in an interview. So we proceeded

in the way that seemed fit.

I know that now that the minority has looked at what he has to

say, they would like to see if they can impeach him, because they

don’t like what he had to say.

Mr. DAVIS OF VIRGINIA. Well, there are inconsistencies with what

he said because he has been gone for 18 months.

Chairman WAXMAN. Well, let’s get the witnesses here today on

record and we can ask them questions about what Mr. McDevitt

had to say and probe into this whole thing further. But the reality

is that there are a lot of e-mails—which is the primary way people

send communications to each other—from high officials in the

White House that cannot be located, and that, as I understand it,

is not just what we are saying, what Mr. McDevitt has said, but

the Archives as well.

And from the Archives we are pleased to have Dr. Allen

Weinstein. He is the ninth Archivist of the United States and leads

the National Archives and Records Administration.

We also have Gary M. Stern, the General Counsel for the National Archives and Records Administration.

Sharon Fawcett is the Assistant Archivist for Presidential Libraries at the National Archives and Records Administration.

Alan R. Swendiman is the director of White House Office of Administration.

And Theresa Payton is the Chief Information Officer at the

White House Office of Administration.

We are pleased to welcome all of you.

Mr. DAVIS OF VIRGINIA. Mr. Chairman, can I just make one

point? We join with you in wanting to get all the e-mails and not

giving up. I just want to make that clear. This is not an effort to

stop the disclosure of these. We want to get at these. We really object to the characterization of how this came. I would think much

of this is technical and hopefully this hearing will be able to bring

both sides an opportunity to bring that out. Thank you.

Chairman WAXMAN. Well, I hope so, because I think, on a bipartisan basis, we want to find out where those e-mails are and get

them. I don’t know what characterization you object to, because I

have been very careful not to make any characterization, unlike the

situation we had in this committee in the 1990’s.

Ladies and gentlemen, it is the policy of this committee that all

witnesses that testify before us testify under oath, so I would like

to ask you, if you would, to please rise and raise your right hands.

[Witnesses sworn.]

Chairman WAXMAN. Thank you.

42

The record will indicate that each of the witnesses answered in

the affirmative.

Dr. Weinstein, why don’t we start with you?

All of you have sent prepared statements, or those of you who

have sent prepared statements. I want to assure you that they will

be in the record in full. We would like to ask, if you would, to try

to limit the oral presentation to 5 minutes. You will have a clock

that will be indicated on the table. Green, then after 4 minutes

there will be a yellow; and then after 5 minutes is complete it will

turn red. If you are not finished by that po int, we would like to

ask you to summarize the last part of your testimony.

Mr. WEINSTEIN. Can I ask you before I start, Mr. Chairman?

Chairman WAXMAN. Yes.

Mr. WEINSTEIN. I will be making the only opening statement for

the Archives. I gather my two colleagues from the White House

will both make statements. Does that mean I get 10 minutes?

Chairman WAXMAN. Well, go ahead and take whatever time you

need. Under those circumstances, it seems reasonable.

Mr. WEINSTEIN. Thank you.

STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE

UNITED STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ACCOMPANIED BY GARY M. STERN, GENERAL COUNSEL, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, AND SHARON FAWCETT, ASSISTANT ARCHIVIST FOR PRESIDENTIAL LIBRARIES, NATIONAL ARCHIVES

AND RECORDS ADMINISTRATION; ALAN R. SWENDIMAN, DIRECTOR, OFFICE OF ADMINISTRATION, THE WHITE HOUSE;

AND THERESA PAYTON, CHIEF INFORMATION OFFICER, OFFICE OF ADMINISTRATION, THE WHITE HOUSE

STATEMENT OF ALLEN WEINSTEIN

Mr. WEINSTEIN. Good morning, Chairman Waxman, Ranking

Member Davis, and members of the Committee on Oversight and

Government Reform. Thank you for calling this hearing and for

your continued attention to the management, protection and preservation of Government information.

The National Archives General Counsel Gary Stern, Assistant

Archivist for Presidential Libraries Sharon Fawcett accompany me

this morning and will be available to assist me in responding to

questions from the committee.

I am pleased to appear before you today to discuss the work of

the National Archives and Records Administration [NARA], in

managing Presidential papers at the time of transition from one

President’s administration to the next. I will summarize my remarks and ask that my full statement be included in the record.

Let me begin by discussing preparation for the transition in January 2009 of the Presidential records of the George W. Bush administration to the National Archives. National Archives has a long

and successful history of moving Presidential records and gifts from

the White House to the custody of the Archives for ultimate deposit

in the Presidential library. We have done this work under the exigent circumstances of current departure, as in the case of Presidents Kennedy and Nixon; the foreshortened notice of one-term adVerDate 11-MAY-2000 15:11 Nov 03, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\DOCS\44697.TXT KATIE PsN: KATIE
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ministrations, such as George H.W. Bush; and the more predictable

pace afforded by a two-term President, for example, William Jefferson Clinton.

The National Archives begins preparing for an eventual move

from the first day of an administration. However, as you might

imagine, Mr. Chairman, most of the actual work takes place in the

last year of a President’s term. We work closely with the White

House Counsel’s Office, the White House Office of Records Management, the National Security Council, the White House Photo Office,

the Office of Administration, and other appropriate White House

offices in accounting for all Presidential records—textual, electronic, and audio-visual—and in arranging for their physical transfer to the National Archives.

We also work with the White House Gift Unit in inventorying

and packing the thousands of foreign and domestic gifts that will

be included in the holdings of the Presidential library and museum.

Traditionally, the Department of Defense also supports the National Archives in packing and transporting the records from Washington the library site.

Beginning in the summer of 2007, National Archives staff attended several preliminary meetings with White House staff to discuss the transition process. In late fall, Archives staff began to

meet with IT staff from the Office of Administration to discuss the

transfer of electronic records. Archives staff has also met with the

staff of the National Security Council regarding its classified electronic records, which are maintained separately from the systems

managed by the Office of Administration. We expect that transition

meetings will continue on a regular basis and look forward to working with White House staff in ensuring a smooth move of the massive amount of records.

The National Archives has leased a temporary facility in the Dallas, TX area that will serve as the archival repository for these

records until the George W. Bush Presidential Library is completed. We have already begun to hire and train archival staff,

along with a museum registrar, who will take charge of the records

and gifts as they arrive. We expect to continue the hiring of full

staff when we receive our fiscal year 2009 appropriation.

Now I would like to turn to your question on the National Archives’ actions concerning the possibility of missing White House emails. The Presidential Records Act [PRA], does not give the Archivist the authority—formal or oversight authority—over how an incumbent President performs his records management responsibilities, but, rather, vests records management authority entirely and

exclusively with the incumbent President. Nevertheless, throughout the course of an administration, when we are invited to do so,

both I and my staff try to provide our best guidance and advice on

matters affecting White House records management.

When we read the press reports in April 2007 that the White

House had apparently acknowledged that a large number of emails might be missing from the Executive Offices of the President,

the EOP system, we immediately began to enquire about this matter with White House staff. The National Archives made similar inquiries in 2006 upon learning of press reports that Special Council

Patrick Fitzgerald had reported on e-mail archiving problems with

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the Office of the Vice President’s records. Some time later in April

2007, White House staff told us that a chart prepared in 2005 indicated that there might be some missing e-mails, but that no one

within the Executive Office of the President [EOP], had been able

to validate the chart’s results. My staff was further informed that

efforts would be made to corroborate whether any e-mails were actually missing.

In addition, because the EOP mail system contains records governed under both the Presidential Records Act and the Federal

Records Act [FRA], on May 6, 2007, I sent a standard letter to the

Director of the White House Office of Administration requesting a

report on the allegations of unauthorized destruction of Federal

records. This letter has been provided to the committee.

To this day, I have not received a written reply to the May 6,

2007 letter. We have been diligent in requesting periodic updates

on the status of the White House review of these allegations and

the possibility of missing Federal and Presidential e-mails. The

White House has responded regularly, if inconclusively, that its review is still continuing.

Further, we have made our views clear, both to the White House

and to this committee, that in the event e-mails are determined to

be missing, it is the responsibility of the White House to locate and

restore all the e-mails, probably from the backup tapes, and that

such a project needs to begin as soon as possible. The National Archives has also emphasized that supplemental congressional funding to the White House will almost certainly be necessary for such

a restoration effort.

A similar situation occurred, as you mentioned, Mr. Chairman,

near the end of the Clinton administration with its Automated

Records Management System [ARMS], and the Office of Administration of the White House took full responsibility at that time in

restoring an estimated 2 million e-mails. Because of the problems

that occurred with the ARMS system during the Clinton administration, the National Archives recommended to the incoming

George W. Bush administration that it replace ARMS with a new

electronic records management application for its e-mails as soon

as possible.

The Bush 43 White House expressed interest and invited the National Archives to work with the Office of Administration in developing the requirements for a new system. The National Archives

staff worked with the Office of Administration from late 2001 until

the summer of 2004 on what came to be known as the proposed

Electronic Communications Records Management System

[ECRMS]. The National Archives staff reviewed deliverables and

documentation produced as part of this system design effort, with

our primary concern being to facilitate the transfer of these electronic records at the end of the administration.

In the fall of 2006, the National Archives learned that the Office

of Administration had decided not to implement ECRMS. In early

2007, the National Archives began meetings with the Office of Administration to discuss how the Office proposed to manage Executive Office of the President e-mails in anticipation of the upcoming

transition. The National Archives was not informed about the possibility of missing e-mails at this time.

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Mr. Chairman, this concludes my testimony. Thank you for your

attention. I am happy to answer any questions that may remain.

[The prepared statement of Mr. Weinstein follows:]

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Chairman WAXMAN. Thank you very much, Mr. Weinstein. I assume Mr. Stern and Ms. Fawcett are here to answer questions that

we may have.

Mr. WEINSTEIN. Of course.

Chairman WAXMAN. Ms. Payton, let’s hear from you next. Or

would you prefer Mr. Swendiman to go next? There is a button on

the base of the mic. Be sure it is pushed in and close enough to

you to pick it all up.

STATEMENT OF ALAN R. SWENDIMAN

Mr. SWENDIMAN. Good morning, Mr. Chairman, Ranking Member

Davis, and members of the House Committee on Oversight and

Government Reform. I am Alan Swendiman and I currently serve

as Special Assistant to the President and Director of the Office of

Administration. Thank you for inviting me to participate in this

hearing. Accompanying me is Theresa Payton, who is the Chief Information Officer for the Office of Administration.

I am pleased to appear before you today on the subjects of e-mail

records keeping practices at the Executive Office of the President

during this administration and the status of Presidential transition

planning in relation to records of this administration. I will summarize these remarks and ask that my full statement be included

in the record.

I have served as Director of the Office of Administration since

November 27, 2006. OA’s mission is to provide common administrative and support services to the EOP.

The Office of the Chief Information Office is one of the operating

units of OA. Among its important functions, OCIO is responsible

for providing all EOP components with unified enterprise services.

Certain of the subjects that the committee may ask today are within the purview of the OCIO, and Ms. Payton may speak to them.

I will direct my remarks principally to OA’s efforts on the important subject of Presidential transition planning.

Presidential records are the property of the U.S. Government and

OA takes very seriously its responsibilities for the transfer of

records to the National Archives. These responsibilities derive in

significant measure from the Presidential Records Act and the effective fulfillment of these responsibilities is important to the continuity of the presidency as an institution and for the Bush presidency, and we are focused on making this transition process as

smooth and cooperative as possible.

Toward that end, transition-related meetings between NARA and

White House began in approximately the summer of 2007. At that

time, NARA noted and welcomed what it described as EOP’s early

engagement on transition and Presidential records issues. Since

that first meeting, there have been at least eight meetings with

NARA and numerous internal meetings. For example, NARA has

met with the OA Offices of the Chief Financial Officer, the Chief

Facilities Management Officer, and the Chief Operating Officer to

receive records-related functional and operational briefings and to

ask questions. NARA and OA are committed to continuing to meet,

and, in fact, the next meeting is this Friday, February 29th.

Through these meetings, NARA will learn about the dozens and

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dozens of computer applications at the EOP that may have records

subject to PRA which will need to be transferred to NARA.

Now, the upcoming Presidential transition is going to be a complex one, involving new technologies and new people. These complexities are heightened by the existing cyber threats, of which this

committee is undoubtedly aware, and cyber security considerations

impact, among other things, the way we are able to safely transfer

records to NARA.

This will be the first transition in which OA, as an entity, has

been subject to the PRA, and OA is fully engaged in that process.

We have already seen issues arise as to whether certain materials

are records or non-records under the PRA. One particular challenge

facing the institution is the necessity of identifying and making

available in some form records that will be needed for the 44th

President and his or her staff. Financial records, procurement

records, leases, blueprints and other property records, security

records, and personnel records are just a few of those kinds of

records.

From this summary, we trust that the committee can see that a

lot of predicate work has begun and is ongoing. We have approximately 11 months remaining to work on this transition, and we are

committed to making sure that all the Presidential records that we

have transferred to NARA are transferred at the end of this administration.

As a final matter, I understand that the committee has enquired

about whether EOP e-mails may not have been properly preserved

between 2003 and 2005, and the potential implications on transition should it be determined that such e-mails are missing. The potential discovery of this issue and the immediate response to it, of

course, predated my service as OA Director. The OA staff, including Ms. Payton, can discuss this issue in more detail. But what I

can say is this. I am proud of the work that they have been doing

and continue to do under the leadership of Ms. Payton in order to

determine whether any such e-mails are missing. It is a complex

process, one that takes time to do right and one that we have not

taken lightly.

Mr. Chairman, this concludes my statement. Thank you for your

attention, members of the committee, and I would be pleased to answer any questions.

[The prepared statement of Mr. Swendiman follows:]

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Chairman WAXMAN. Thank you very much, Mr. Swendiman.

Ms. Payton, do you have a statement as well?

Ms. PAYTON. Yes.

STATEMENT OF THERESA PAYTON

Ms. PAYTON. Good morning, Chairman Waxman, Ranking Member Davis, and members of the committee. Alan did touch a little

bit on the OCI role, so I would like to talk to you a little bit about

some of the services we offer.

I am Theresa Payton, and I am the Chief Information Officer in

the Office of Administration Executive Office of the President. I

have been in this role since mid-May 2006, and it has been an

honor and a pleasure to serve.

Some of the services that we provide to the EOP, as Alan mentioned, are to the 12 components that comprise the Executive Office

of the President. There are over 3,000 customers in those 12 components and some of the services that we provide to them include,

but aren’t limited to: office automation; intranet support; 24 by 7

production support, should they need it; desktop support; we do

continuity of operation support; disaster recovery backup information; and we are also responsible for the e-mail messaging system

for the sensitive but unclassified part of the EOP network; and we

are also responsible for the records keeping of all of those e-mails

and making sure we have a successful transition to NARA at the

end of the Presidential transition.

I did provide a detailed written testimony that I understand from

you, Chairman Waxman, will be in the record, so I just want to

give a few summary comments before I turn it over for questions.

I wanted to focus on the work primarily that we have been doing

from late 2006 up until today and give you a little bit of explanation about the leadership determination of the people that I work

for, as well as the people that work for me in the Office of the Chief

Information Officer.

We have undertaken three tracks since late 2006 until today.

The first track involves people and process; the second track involves improving the current technology we have in place; and then

the third track is what we are calling the longer view. So this is

about getting a more comprehensive technology platform in place

for archiving records keeping, as well as legal searches.

Under people and process, I will just give you a couple examples

of some of the things we have been able to accomplish. First of all,

we recognized we have a slim staff, you know, we are a small but

mighty team supporting the 3,000 customers. We have roughly 55

Federal employees and roughly 60 contractors to support these

3,000 customers. We took a look at the resource allocation and the

manpower stacked up against records keeping versus the other

parts of the operation and the mission that we serve, and in 2006

we had roughly the equivalent of 10 of our 115 employees, from a

manpower perspective, dedicated to records keeping. We have

ramped that up. We looked at our mission. We have slimmed down

some of the services we provide in some other parts of the mission

and we ramped that up in 2007. We had the equivalent of manpower of about 22 people out of the 115 focused on records keeping

and we have ramped that up a little bit more for 2008, and we are

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currently running at about 23.5. So that is an example of some of

the people investments.

From a process improvement standpoint, we put in place some

improved processes while we are on the current technology we are,

and to make sure that on a go-forward basis we are accounting for

all of the information. So one example of an improvement that we

put in place last year is our weekly report. So the messaging team

does daily work. If they have any technology glitches, they note

those in a log. Then there is a second team who does a QA of the

work they are doing to make sure that the messages that went into

the Microsoft Journal that were then automatically moved through

a software program that we have into Microsoft Personal Storage

Tables [PSTs], a second group takes a look at that work and also,

if they note any technology glitches, notes that in the log.

On a weekly basis an executive summary report is produced for

myself and for our Office of Administration General Counsel, and

this provides transparency that wasn’t available before on a weekly

basis about any technology glitches that may have occurred, the

mediating steps that needed to be taken or still need to be taken,

and then a weekly report as to where they are in their progress.

This has provided a couple different tools for us to use, the first

being the transparency, and knowing, if there is a glitch, the people

need to be focused on fixing that. The second is it actually gives

us historical information so, from a go-forward perspective, if somebody is looking back and trying to look for e-mail records on certain

dates, they actually have a place they can go look, a comprehensive

place that tells them what occurred, what components, and what

was done to mitigate that risk. The other is a learning tool for the

team. So we are in the process of rolling out what is known—and

the Government is adopting it—Six Sigma, where you look for opportunities to reduce defects. And by doing this weekly report, we

are collecting statistics so they can look backward on trends and

look for opportunities to reduce future defects. So that is an example of a process improvement.

One of the areas you are probably going to be the most interested

in, though, is going to be the technology improvements we have

made on our existing technology. As I mentioned before—and I can

go into more detail during the questions—we have e-mail that goes

into the Journal, the Microsoft Journal. It is automatically moved

through a program that we have in place since 2005 into the PST

archive for records keeping, and what we have been doing is actually re-baselining that entire inventory of the records. We felt like

we had to do this. We found some different technology glitches in

some of some tools that had been wonderful workhorses for EOP,

but as we were trying to do the analysis to try and figure out what

was going on with the problem days and we were having problems

replicating some and some were replicating, we felt it in the best

interest to upgrade and update some of those tools and implement

those tools around the records keeping inventory and statistical

analysis process.

We are in the early phase. We actually have three phases we are

implementing for this. We are in the early phase of that process,

where we have just started to get some early results. They have

not had a quality assurance check on them, so the results are very

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preliminary and they are not conclusive. Some of the promising

trends that we have been seeing is we have identified more e-mails

for that exact time period that was looked at in 2005 than was previously identified. We have been able to identify and locate e-mails

with an exchange for days that were previously red. There are, in

this phase one, some days that still show as red. That is where

phase two is going to come in. From a phase two perspective, we

will be looking at the message level. And I can get into more detail

on that during the Q&A, but in phase two it is our desire and our

hope to eliminate all or most of the red days and low volume days

by being able to read the information down at a more granular

level.

When we get through a QA process in phase one and phase two,

we will be sitting down with NARA to talk through our findings,

where we still have anomalies, if we have any, and when we finish

phase two we will sit down with NARA, and if there are any anomalies remaining, that is where we will have the conversation

around a records restore, most likely looking at our disaster recovery backup tapes.

The OCIO staff is incredibly dedicated. They are working very

hard on this effort. Everyone on the team wants a successful NARA

transition. We want to make sure we get all of the e-mail records

over to NARA at transition.

Thank you. And I would be glad to take any questions.

[The prepared statement of Ms. Payton follows:]

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Chairman WAXMAN. Thank you very much.

By bipartisan agreement on the committee, the chairman will

control 15 minutes of questioning and then Mr. Davis will control

15 minutes on his side. So I will start off the questions.

Mr. Weinstein, I want to ask you some questions first. This hearing is about the White House compliance with an important open

Government law, the Presidential Records Act. This act requires

the President to ensure that his activities, deliberations, decisions,

and policies are adequately documented. The act makes clear that

a President’s records belong to the American people, not to the

President or his advisors or the Republican Party. As the Archivist,

how important do you think the Presidential Records Act is?

Mr. WEINSTEIN. It is incredibly important, Mr. Chairman, and I

think all of us agree. Whatever our politics are, we are all in agreement on that point.

Chairman WAXMAN. It is important because this preserves the

records not only for history, but for the next administration.

Mr. WEINSTEIN. The records belong to the American people, and

that best preserves it, yes.

Chairman WAXMAN. Thank you. Now, over the last year, serious

questions have been raised about the White House compliance with

this Presidential Records Act. We have learned about two violations of the act that appear to be serious. One involves the extensive use of Republican National Committee e-mail accounts by

White House staff and the other involves the failure to archive emails sent through the official White House e-mail system. I want

to start out by asking you about the use of these RNC e-mail accounts to conduct official White House business.

This committee first started asking questions about the use of

RNC e-mails last March. As we investigated, we learned three

facts: one, many senior White House officials, including Karl Rove

and Andrew Card, had RNC e-mail accounts; two, these officials

made heavy use of these accounts, including for official purposes,

such as communicating about Federal appointments and policies;

and, three, the RNC preserved almost none of these e-mails from

President Bush’s first term and only some of the e-mails from his

second term.

Dr. Weinstein, the documents that we have seen reveal that the

Archives was concerned about these RNC missing e-mails as well.

Can you explain why?

Mr. WEINSTEIN. Well, I wish I had all the facts at this stage in

the game, Mr. Chairman, to——

Chairman WAXMAN. Can you speak up?

Mr. WEINSTEIN. I wish I had all the facts at this point to discuss

this issue, but the fact is that it has been our understanding that

the White House has been working with the RNC to try to restore

PRA e-mails that were created.

Chairman WAXMAN. Well, perhaps they are or they are not; we

are going to get into that. But how concerned are you that we may

not have the RNC e-mails from senior White House staff?

Mr. WEINSTEIN. Well, Mr. Chairman, I am concerned about the

problems that we might have with any group of records, including

these. I want the fullest, I think the American people want the fullest possible account of any administration.

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Chairman WAXMAN. Karl Rove was a key advisor to the President. We also know he was an extensive user of the RNC account.

Mr. Rove is reported to have sent and received ‘‘about 95 percent’’

of his e-mails through his RNC account. His secretary, Susan Ralston, confirmed for the committee that Mr. Rove used his RNC account extensively.

When we asked the RNC what kinds of records they had, they

told us they had virtually no e-mails from Mr. Rove before November 2003. They had virtually none of his e-mails for 2001, 2002,

and most of 2003. Well, these years were in many years the defining years for the Bush administration; they include the critical

months when President Bush was making the case for war in Iraq.

Are you concerned about the loss of Mr. Rove’s e-mails for these

years, Mr. Weinstein?

Mr. WEINSTEIN. Mr. Chairman, I am concerned about the loss of

e-mails that are White House e-mails, no matter what the system

they are involved in. I am concerned about maintaining the fullest

possible Presidential records. I should add, perhaps, that in listening to Ms. Payton’s testimony, we are still awaiting the completion

at the White House of this process.

Chairman WAXMAN. We are too, but I want to ask you about

these RNC e-mails first, before we get into that.

Mr. WEINSTEIN. Before we go any further, though, my counsel

has dealt with this issue to a very great extent. I would ask Gary

Stern if he would like to add anything.

Chairman WAXMAN. Mr. Stern.

Mr. STERN. Yes. As we have discussed with the committee staff

and with the White House, our view is Presidential records exist

and must be preserved whatever system they are used on. So to the

extent they were used on a non-White House system, it is still the

responsibility of the White House to preserve them. We understand

that, also, White House officials create non-Presidential records,

and then, for those records, it would be appropriate to use a nonWhite House system like the RNC system for non-Presidential

records involving political campaign and all.

Chairman WAXMAN. Well, we know Mr. Rove used most of his emails, whatever the subject, on RNC accounts. So if we have a deletion of Mr. Rove’s RNC e-mail as the rule for the White House,

not the exception, we don’t know what he had to say. In fact, the

committee learned that the RNC retained no e-mail messages for

all of 51 of the 88 White House officials with RNC e-mail accounts.

We don’t know whether they were personal, political, or official

Government. The records appear to be woefully incomplete for the

remaining 37 officials. For example, the RNC retained e-mails from

before 2006 for only 14. So we had 51 of the 88 White House officials using e-mail accounts and the records are incomplete except

for 14 of these officials.

Mr. Stern or Dr. Weinstein, you and others at the National Archives have made repeated inquiries to the White House about this

problem and the White House appeared to tell you it was taking

all this very seriously. I want to read some notes from a May 21,

2007 meeting.

Your staff asked what steps the White House was taking to restore these e-mails and here is what your staff said they were told,

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‘‘We then asked about the RNC e-mail issue. They, the White

House, are working with the RNC and looking at this issue. They

are exploring how they will try to capture the Presidential record

e-mails. This will be a separate restoration effort from the EOP email restoration.’’

Dr. Weinstein, can you tell us what the current status is of the

recovery effort? Specifically, has the White House taken steps to restore RNC backup tapes?

Mr. WEINSTEIN. Well, I hate to say this, Mr. Chairman, but I am

afraid that is a question that is going to have to be asked to Ms.

Payton and Mr. Swendiman simply because we have not been given

that information. We were told by her testimony that the process

is nearly complete, which is a phrase that she used.

Chairman WAXMAN. You have been told by the White House that

the process is nearly complete to get the RNC e-mails?

Mr. WEINSTEIN. It is in Ms. Payton’s testimony.

Chairman WAXMAN. Mr. Stern, do you want to respond to that?

Mr. STERN. On the RNC system, we have enquired periodically

and we were under the impression they were still working with the

RNC and some effort would be undertaken to recover whatever

could be recovered from either backup tapes or from laptops, individual hard drives. We heard today that maybe the RNC is not

doing that, and that would be a concern and a problem and disappointment. If it is a funding issue, that is where Congress would

potentially need to come in and say if there are Government

records there, they——

Chairman WAXMAN. So you were relying on the White House

telling you that they are going to make sure they get all the

records, including from the RNC.

Mr. STERN. That is correct, which is their responsibility.

Chairman WAXMAN. Yes. And I can understand why you would

think that they should be the one doing it. But we talked to the

RNC yesterday and they told us that the White House has taken

no steps to obtain backup tapes. The White House hasn’t begun

any type of restoration effort and the tapes haven’t been touched.

I am sure you are concerned about that, is that correct?

Mr. WEINSTEIN. More than concerned about that, Mr. Chairman.

Obviously, if that is the case, this should be looked into as soon as

this hearing is over.

Chairman WAXMAN. Well, Ms. Payton and Mr. Swendiman, I

would like to get your perspective. The White House told the Archives last May that it was exploring a restoration of RNC e-mail,

but when we checked, the RNC told us the White House never even

obtained the RNC’s backup tapes. Why isn’t the White House following through to recover and preserve these records?

Ms. PAYTON. Chairman Waxman, since you mentioned me first,

I will go first. I have responsibility for the Executive Office of the

President network and e-mails, so I am, unfortunately, unqualified

to talk to you about the RNC restore; I am not part of that process.

If, at some point, there were——

Chairman WAXMAN. You are not part of the process to get the

RNC e-mails?

Ms. PAYTON. No, sir, I am not. No, sir, I am not.

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Chairman WAXMAN. OK, well, maybe Mr. Swendiman is part of

that process.

Mr. SWENDIMAN. As part of the Office of Administration, Mr.

Chairman, we have responsibility for the official but sensitive EOP

network. We can’t control what individuals do on their own.

Chairman WAXMAN. But you have the responsibility for all the

officials working at the White House to get their e-mail records,

and if they use some other e-mail system, aren’t you responsible to

gather that information under the Presidential Records Act?

Mr. SWENDIMAN. Well, I am advised, Mr. Chairman, that Counsel’s Office has taken steps with regard to that. The letters have

gone out to former White House employees with regards to use of

RNC laptops that——

Chairman WAXMAN. Letters telling them not to do it in the future or to get the information from the past?

Mr. SWENDIMAN. Mr. Chairman, I don’t know the exact substance of the letter, I simply have been advised that step has been

taken.

Chairman WAXMAN. Will you get that information, what steps

have been taken, what letters have been sent?

Mr. SWENDIMAN. I will consult with counsel, yes, sir.

Chairman WAXMAN. Well, I am sure we asked the counsel for

this information.

The White House e-mails that the RNC deleted are the core

types of communications that the Presidential Records Act is supposed to preserve; they are the candid communications of the President’s most senior advisors. The White House may not want these

e-mails disclosed, the White House may be worried that the true

record of how the White House led the Nation to war in Iraq will

be embarrassing, but that is not a legitimate reason for your failure to recover the deleted e-mails. I think it is tremendously important that we get those Republican National Committee e-mails, and

I assume, Mr. Weinstein, that you agree, the RNC has a box of

backup tapes.

Are they being searched, Mr. Swendiman?

Mr. SWENDIMAN. Mr. Chairman, is what being searched?

Chairman WAXMAN. The box of backup tapes at the RNC.

Mr. SWENDIMAN. I don’t know. All I can tell you, Mr. Chairman,

is that among the steps that I am advised are being taken is, first

of all, I mentioned the letter——

Chairman WAXMAN. Pull the mic and be sure it is on. Our Members are having trouble hearing you.

Mr. SWENDIMAN. The second is that there have been contractual

efforts with regards to forensic and recovery. I cannot, at this time,

tell you the status with regard to that.

Chairman WAXMAN. Well, this is what this hearing is all about

and that is why you were invited to come. We were told that the

White House has not even asked for them. Is that a problem, if the

White House hasn’t even asked for them?

They assured you, Dr. Weinstein and Mr. Stern, that they are

going to take care of it and they are going to get this information.

Mr. WEINSTEIN. Mr. Chairman, I can only promise you one thing,

that you and Ranking Member Davis and members of this committee will have my best information on this by the end of the week.

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I am going to make some inquiries as soon as this hearing is over

and hope that we can get to the heart of the matter.

Chairman WAXMAN. Well, we——

Mr. WEINSTEIN. I don’t have an answer for you now.

Chairman WAXMAN. Well, you don’t have the answers because

the White House assured you they were getting it and it looks like,

from what we hear, they haven’t done anything.

Dr. Weinstein, you wrote to Fred Fielding, the White House

Counsel, about this issue on May 1, 2007.

Mr. WEINSTEIN. Yes, sir.

Chairman WAXMAN. Particularly the archiving in the White

House system itself. You wrote: ‘‘We believe that it is essential that

the White House move with the utmost dispatch both in assessing

any problems that may exist with preserving e-mails on the Executive Office of the President system and in taking whatever action

may be necessary to restore any missing e-mails.’’ After you wrote

this letter, your staff made several attempts to learn more. These

weren’t successful.

Now I want to read from a memo that Mr. Stern wrote to you

on September 5, 2007. Now we are talking about the official White

House e-mail system. And Mr. Stern wrote: ‘‘We still have made almost zero progress in actually moving ahead with the important

and necessary work that is required for a successful transition.

More significantly, our repeated requests to begin office-by-office

meetings to scope out and inventory the volume, formats, and sensitivities of the PRA records that will be transferred to the National Archives has gone unheeded. Of most importance, we still

know virtually nothing about the status of the alleged missing

White House e-mails. We have not received a written response to

our May 5, 2007 letter regarding alleged missing Federal record emails. As we stressed to the White House last spring, it is vital

that any needed backup restoration project begin as soon as possible in order that it be completed before the end of the Administration.’’

Dr. Weinstein, what was your reaction when Mr. Stern informed

you that the White House had still provided virtually no information about a potentially large loss of Presidential records? And how

would you describe the situation now? Do you all the information

you need to assess the extent of this problem?

Mr. WEINSTEIN. In response to your first question, Mr. Chairman, I am obviously not happy about that situation. I would like

an answer and I would like to move forward on this process. In

connection with what the situation is today, I think we have a very

sensitized group of people to this issue, but we don’t have the results yet. So that is why I ask you for a few more days to see

whether I can get some results for you.

Chairman WAXMAN. Well, we will certainly, without objection,

hold the record open for you to give us any further information,

and I am sure you will get further questions about this. But Congress doesn’t have all the information we need. We still don’t know

what the White House is going to recover, whether they are going

to recover the missing White House e-mails that the RNC deleted,

and every week we seem to get a different story from the White

House about whether the White House’s own e-mail archives are

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complete. I think it is important we get those RNC e-mails and we

get the White House e-mails from their own operating system, and

without that this administration is not complying with the Presidential Records Act.

I want to recognize Mr. Davis for 15 minutes.

Mr. DAVIS OF VIRGINIA. Thank you. Let me just say that these

people are not responsible for the RNC e-mails. They have a separate corporate culture over there, isn’t that correct, in terms of

when they move them?

Mr. SWENDIMAN. That is correct.

Mr. DAVIS OF VIRGINIA. And you are not into that loop particularly. The other thing that troubles me about this is the fact that

when you have the committee asking the RNC to recover e-mails

that they may or may not have, that is a huge expense to the National Committee. My feeling is—and we need to look at this in the

future—when you have congresses of different parties going after

political committees, that is taking a lot of money out of the system

for congressional investigations that could go other places, and I

think if Congress really wants to pursue this, we ought to look at

an appropriation or something, and not have it come out of their

coffers. It has been hundreds of thousands, at a minimum, that I

know that it has cost the RNC in this particular case.

Let me ask some questions.

Ms. Payton, we have backup tapes for all of this, don’t we?

Ms. PAYTON. Excuse me?

Mr. DAVIS OF VIRGINIA. All the e-mails, are there backup tapes?

Ms. PAYTON. We have disaster recovery backup tapes,

primarily——

Mr. DAVIS OF VIRGINIA. What is the difference between a disaster

recovery backup tape and a backup tape?

Ms. PAYTON. Sure. Let me try and explain it. From a disaster recovery standpoint, which is what our backup tapes are, what you

do is you actually take a picture of what all of the servers, the

applications——

Mr. DAVIS OF VIRGINIA. Well, backup tape covers everything that

happened.

Ms. PAYTON. Yes, sir.

Mr. DAVIS OF VIRGINIA. It may be for disaster recovery, but are

there backups for all of these missing e-mails?

Ms. PAYTON. We believe we should have backups based on our

first pass analysis, which is not complete and has not been QAed

yet.

Mr. DAVIS OF VIRGINIA. But, in all likelihood, there are backups

for everything.

Ms. PAYTON. Yes, sir.

Mr. DAVIS OF VIRGINIA. So there is nothing really missing here,

it is recoverable.

Ms. PAYTON. We won’t know until we finish the analysis, but we

feel very confident that we will be able to use the disaster recovery

backup tapes if we need to. At the end of phase two of our analysis,

if we still have anomalies——

Mr. DAVIS OF VIRGINIA. So the committee should be able to get

this, if they want it, one way or the other, is that——

Ms. PAYTON. Yes, sir.

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Mr. DAVIS OF VIRGINIA. OK. I mean, I think that is important

to get out here. Now, it is expensive going through the disaster recovery backup tapes to retrieve that, is it not?

Ms. PAYTON. Yes.

Mr. DAVIS OF VIRGINIA. Can you describe the cost to me?

Ms. PAYTON. The team actually put together an algorithm based

on having to do this before, and basically the algorithm—and it is

a very rough approximation, but if you have one component 1 day

that needs to be restored from a disaster recovery backup tape, we

have estimated it would cost around $50,000 for one component 1

day. So if you have three components on one single day, that would

be three times 50,000, which would be 150,000.

Mr. DAVIS OF VIRGINIA. Well, can you give me a ballpark number

if we had to go to the backup? Assume for a minute we can’t recover the originals of this. To get what the committee wanted to,

if we had to go to backup, can you give me a ballpark?

Ms. PAYTON. There is also servers that would have to be purchased because you wouldn’t want to do the backup on servers you

already have, so we said it would be about $500,000 for the servers.

And I believe—and I am working off of memory here—but I believe

we had said if we restored every single day from the original analysis, it was going to be somewhere in the ballpark of $15 million or

more.

Mr. DAVIS OF VIRGINIA. OK. But it is recoverable. In your judgment, by the time you have looked at all of this, one way or the

other, these haven’t been doctored or hidden; it is recoverable.

Ms. PAYTON. Yes, it should be recoverable.

Mr. DAVIS OF VIRGINIA. At a cost.

Ms. PAYTON. The caveat I give is you don’t know what you don’t

know until you get into the technology. So sometimes you don’t

know if there might be a flaw in a tape and some of those other

things. But based on what we know right now, it should be recoverable.

Mr. DAVIS OF VIRGINIA. OK, thank you very much.

Mr. Issa, do you want to——

Mr. ISSA. Thank you. I thank the gentleman for yielding.

Mr. Chairman, I would ask, since I understand we are going to

accept additional information at the end of this hearing, that the

back-and-forth correspondence with Mr. Steven McDevitt related to

the White House guidance and his further guidance be included in

the record.

Chairman WAXMAN. Without objection, that will be the order.

Mr. ISSA. Thank you, Mr. Chairman.

[The information referred to follows:]

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Mr. DAVIS OF VIRGINIA. Would the gentleman yield for one more?

Mr. ISSA. Of course. Take your time.

Mr. DAVIS OF VIRGINIA. Let me just make one other comment on

White House versus RNC, because this is a long-term problem I

think this committee needs to wrestle with if we are going to be

successful.

You have a political operation in the White House, and you do

politics and you do governance at the same time. To be able to use

Government systems to do political e-mails would really not be consistent with the Hatch Act and everything else. Is that everybody’s

understanding? Mr. Stern?

Mr. STERN. Well, that is correct, and with the Presidential

Records Act. The Presidential Records Act itself requires that

White House officials separate Presidential records from what are

called personal records, which include political records. So they are

supposed to keep them separate and generally not use Government

systems for non-Governmental business.

Mr. DAVIS OF VIRGINIA. I think what we need to do, we can’t reinvent the past, but, going forward, we should—one thing this committee could do is we could is we could outline some guidelines in

the future for how you keep those records, saving them and the

like. I think that may be helpful. I mean, the fact that you had different servers and computers keeping these things in itself is compliant with the law.

Mr. STERN. Yes, the notion of having a separate computer to do

political work in the White House makes sense; you just shouldn’t

be doing your official work on that computer.

Mr. DAVIS OF VIRGINIA. Right. And that would mean that for the

political parties, now all the e-mails wouldn’t have gone—I mean,

if it was an RNC or a DNC computer that you were keeping there,

maybe we ought to put out guidelines for preservation of records,

which currently don’t exist. Would that be a recommendation that

might come out of here that could be helpful in going forward?

Mr. STERN. I would think so. And that is the kind of thing that—

you know, the White House Counsel issues records management

guidance for all White House employees that they should be doing

and I think did do, in fact. There is guidance to that effect at some

level, I believe, by the White House.

Mr. DAVIS OF VIRGINIA. But this is—I mean, e-mail, this is fairly

new, this has evolved over the last decade, and it may be appropriate, Mr. Waxman, at the right time, at least going forward, that

we put out some hard and fast rules.

Mr. Weinstein, do you have any thoughts on that?

Mr. WEINSTEIN. I am in total agreement with that, Mr. Davis.

One of the points I would like to make is about the cost of this.

Apparently, this process of restoring e-mails from the Clinton years

cost about $12 million and took about 2 years to achieve, so these

are not cost-free issues.

Mr. DAVIS OF VIRGINIA. I got you. Thank you.

OK, Mr. Issa.

Mr. ISSA. Thank you.

Sort of finishing up with Mr. McDevitt, my understanding from

staff is that the call that was made, they were prohibited from asking certain probative questions, one of them clearly would be is Mr.

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McDevitt working with CREW in private litigation. Certainly, that

would be a fair question if he were here before us today. Another

one would be, you know, were the interrogatories that he submitted

the result of back and forth work with the majority. Certainly, I

would like to know that. Last, I might note for the panel before us

that Mr. McDevitt, a Federal employee at FEMA, chose—even

though he is a past White House employee—chose to use his g-mail

account to correspond back and forth with us as to whether or not

he could give testimony.

And I think, Mr. Stern, I will start with you, if you don’t mind.

Is it appropriate to use g-mail when you are a Federal employee

and a committee of Congress is asking you questions? Or would

that have been something that he should have done on his FEMA

account, since he is a Federal employee, and he was contacted in

the ordinary course of previous Federal employment?

Mr. STERN. Well, ultimately, like we have said, whether something constitutes official Government business and therefore a Government record has to preserved on whatever system you use it on.

People do use their home e-mail accounts if they are working from

home and don’t have access to the Government account. So the fact

of mere use of a private account for Government business is not

prohibited, it just needs to be preserved according to whatever Government recordkeeping laws apply.

Mr. ISSA. OK.

Mr. STERN. But g-mail is not something where you can easily

catch the archive on it.

Mr. ISSA. Dr. Weinstein, are you keeping all of the YouTube stuff

that is up on the President? Are you keeping all the other activities, the things that show up on the internet for President Bush

and his administration? Are you capturing that? Because certainly

it is part of the total internet, but not part of Ms. Payton’s normal

capturing.

Mr. WEINSTEIN. What specifically, are you referring to?

Mr. ISSA. Well, if the chairman thinks that he should have Karl

Rove’s every thinking, including correspondence with the wife or a

girlfriend or an old buddy because it was done at the RNC and not

official work, toward this voyeur, peeping tom thing that you are

entitled to everything, the question is, are you capturing everything or, in fact, are you leaving a huge amount that is out there

not there. Are you capturing every utterance of the President, no

matter where he is, for example?

Mr. WEINSTEIN. Congressman, I think you know the answer to

that question.

Mr. ISSA. I do, and, unfortunately, the only time I have is the

time to say that this committee was supposed to be looking into the

failure to keep 200 days—it continues to shrink—worth of e-mail,

but it is very clear that it is Karl Rove’s nonofficial activities that,

for example, were related to fundraising or other activities, maybe

strategizing how the Republicans in the House could have kept the

majority rather than become part of the minority, which, I suspect,

Karl Rove did at the RNC. He probably did that, and would his

successor in a Democrat administration.

So my question is, if Karl Rove over at the RNC chose to decide

that, let’s say talking about fundraising, or talking about

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strategizing how to maintain a majority in the House or the Senate, if he did something on an e-mail, would that be appropriate

for you to gather at the time, Mr. Weinstein? You’re shaking your

head no, so I assume that you have an answer to that, that is not

appropriate, right?

Mr. STERN. The Presidential Records Act pretty clearly defines

what is a Presidential record and what is not a Presidential record,

and says activities by officials for purely political purposes, campaigns, reelection of the President are non-records and should not

be maintained by the Government system and not—they do not

come to the National Archives as Presidential records. So it is entirely appropriate to conduct that business on a separate system.

I think the issue is always, was there are also official Presidential records on that system. That is what we would be interested in getting at.

Mr. ISSA. Well, but is there any evidence that any of you have

that there is official Government Presidential records there? Or are

we simply going on a fishing expedition at $40,000 or $50,000 dollars a month of campaign funds at the RNC because we have the

power of subpoena? And we will forget the second half of that for

a moment.

Do any of you know of any official deliberative, required under

law, not nice to have but required under law, that was done at the

RNC? Obviously, from the Government to the RNC you have already got, you will capture that. We are talking about use of other

servers and other e-mails not related to the Government. Do any

of you know of a single document, because this committee doesn’t,

a single document that should have been in the archives but, in

fact, was done at the RNC?

Mr. WEINSTEIN. Two points. First of all, it is hard to know anything before we have some information.

Mr. ISSA. OK. Now, that is the whole point. We are not

entitled——

Chairman WAXMAN. The gentleman’s time——

Mr. ISSA. No, no, but—Mr. Chairman, this is my time, if you

don’t mind. You have used plenty of time that is not allocated time

under the committee rules.

I need to be as simplistic as possible because we have limited

time. If you know of any, you say yes; if you do not know of any,

you say no. I understand that there might be some there that we

do not know, but there might be some on YouTube.

The President may have had a conversation, a deliberative conversation, well, at a fundraiser. He may have done that, but it is

not being captured by you today, nor is there a burden under law

to go get it to see, is there? You have no mandate to go peeping

tom into every piece of correspondence that people say is private

in order to determine whether it might be public.

Mr. WEINSTEIN. Of course not.

Mr. ISSA. OK. So, I mean, it is important for today because Ms.

Payton, I think, has very important information for us, that there

will be a certain amount of days of re-imaging servers with the images you captured as the typical backup you do. It is much faster,

obviously, to capture an image than to do a sequential backup.

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You captured images. If you are lucky, you capture one and you

get 80 days’ worth of back, or 30 days worth of back e-mails; if you

are not lucky, you may have to go day after day after day to capture them. And I appreciate the fact that sometimes those images

are not 100 percent perfect. You might not be able to restore a

server, and that may be lost, and it may be millions of dollars.

But the committee’s legitimate reason for calling this today, as

I understand, is not the RNC; it is whether or not you can capture

that and what it will cost. And I think you have given us a great

answer that if all we care about is Dr. Weinstein’s ability to get

the legitimate archives that we know should be available to the

history of America, you are going to be able to provide that in all

likelihood, all or virtually all.

So now I get back to the same thing in the remaining time, and

I will ask each of you, do any of you know of something that was

wrongly use outside official channels by Karl Rove? Because it is

clear the chairman, a little bit like Dan Burton, who I disagreed

with some of what he did in the 1990’s, but he is clearly wanting

to know what Karl Rove said or did even if Karl Rove did not deliver it as official work. And the question is, do any of you know

of any misconduct by Karl Rove using the RNC to circumvent what

would otherwise be official legitimate activities covered under the

Records Act? Do any of you know of that, yes or no, please?

Mr. WEINSTEIN. Yes or no?

Mr. ISSA. Yes or no. I mean, do you know or do you not know?

You do not know.

Mr. WEINSTEIN. I would say that the question itself is both above

and below my pay grade. [Laughter.]

Mr. ISSA. Mr. Chairman, I will take that as a no, and thank you.

Chairman WAXMAN. I would take it as more than a no.

For the record, the White House has a responsibility of preserving all of the e-mails. And if some of the e-mails are at the Republican National Committee, the White House has a responsibility to

get them, but only those that relate to Federal work, Government

activities.

And when we know that, for the record, that there are 51 of the

88 White House officials who had RNC e-mail accounts, and then

we do not know what has happened to 37 of those 51, and before

2006 only 14 of these officials had the e-mails even retained at all

and that Karl Rove, for example, used 99 percent of his time on

RNC e-mails, one would assume he was doing some Government

work. But we do not know unless we see the e-mails. And if we do

not see thee-mails, we do not know.

Mr. ISSA. Mr. Chairman, do you presume that we have a right

to look into private people’s lives simply because——

Chairman WAXMAN. Absolutely not.

Mr. ISSA [continuing]. There might be something there?

Chairman WAXMAN. Absolutely not. But the White House has an

obligation to have the official business of the White House on emails that are preserved. And they need to be preserved whether

they are on one account or another.

Mr. ISSA. Mr. Chairman, I truly agree with you on that, and that

is why we have been cooperating as a minority. But I would hope

that we would ask the White House just as what I asked here, are

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there any records that are covered under official deliberation in the

Records Act that have been conducted under any non-Government

service by any individuals and ask them to answer that.

Chairman WAXMAN. Mr. Swendiman, that is a good question. Are

there Government activities that are handled on an RNC e-mail account when we have so many employees of the highest level in the

White House with no official records of their e-mails, and we know

that they use their RNC accounts for everything that they send on

e-mails?

Mr. SWENDIMAN. Well, much of the things that you have talked

about, Mr. Chairman, preceded my coming to the position of Director of the Office of Administration.

Chairman WAXMAN. Oh. Well, then, it’s improper for us to ask

you. But you are here representing the White House? Let me go on

to Members who are waiting for their opportunity to ask questions.

Mr. Davis.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Chairman.

As I listened to that discussion, I just happened to have in my

hand a report that says Investigation of Possible Presidential

Records Act violations. And information in the report indicates that

White House officials used their RNC e-mail accounts to conduct official business. So I am not sure that we have to speculate about

that. I think that we actually have the information that has been

under investigation and, actually, is written in a report. So I think

we can move on.

But let me move on to my questions of Dr. Weinstein. As I understand the White House e-mail problem, this all began in 2002

when the White House decided to move its staff from the Lotus

Notes e-mail system to the Microsoft Exchange e-mail system. But

when the White House switched away from the old e-mail system,

it also abandoned the archiving system that went with it.

The archiving system was called the Automatic Records Management System [ARMS], and had been used since the Clinton administration. The problem was that instead of putting in place a new

archiving system, the White House began an ad hoc process called

journaling. And under this process, a White House staffer or contractor would collect copies of e-mails and manually save them on

various White House servers.

The committee interviewed Carlos Solari, who was Ms. Payton’s

predecessor, as the White House Chief Information Officer, and he

told us that this journaling process was ‘‘a temporary’’ and ‘‘shortterm’’ solution that was not considered a ‘‘good long-term solution.’’

Dr. Weinstein, your own staff had a similar reaction. In an email sent last November, Sam Watkins with the Archives said that

the archiving system used by the White House ‘‘hardly qualifies as

a system’’ by the usual IT definition.

My question is, do you agree with this ad hoc journaling process

was not an ideal e-mail archiving system?

Mr. WEINSTEIN. Congressman, may I first compliment you on a

very brief distilled analysis of the systems, which I am afraid I

could not match. So we will start with the fact that I am a very

low-tech person, I have only been at the Archives for 3 years. But

I think the judgment of that system will have to be made by colVerDate 11-MAY-2000 15:11 Nov 03, 2008 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 C:\DOCS\44697.TXT KATIE PsN: KATIE
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leagues who have watched this over—unfortunately, I am not even

sure that Mr. Watkins is here. Is he here?

So we will listen to my counsel on that one.

Mr. DAVIS OF ILLINOIS. So you would not say that this is an

ideal——

Mr. WEINSTEIN. Well, I think when one has to change any system completely, or one decides to change any system completely,

you are going to run into not simply the normal obstacles but that

wonderful historical—I am a historian by profession—and the law

of unintended consequences is the only major historical law which

I know, which is——

Chairman WAXMAN. Dr. Weinstein, we’re having a hard time

hearing you. Pull it right up to——

Mr. WEINSTEIN [continuing]. Which is absolutely infallible for

historians which is a law of unintended consequences. I am sure

there were some in the change from one system to another, but

perhaps Mr. Stern knows of some specifics here.

Mr. DAVIS OF ILLINOIS. Well, let me ask you, Mr. Stern, on responsive, do you have any concerns about the adequacy of the

White House archiving system?

Mr. STERN. I think, and as the documents we provided to committee reflect, it had been our understanding that the journaling

function was meant to be temporary stop-gap until they put in a

new formal records management application which we had spent

some time working with them during the first term of the President, and which we still had hoped and expected they would put

in a new formal system.

So I think, as the quote you indicated, or you quoted from, indicates that it is our view that the journaling function is not the

ideal solution.

Mr. DAVIS OF ILLINOIS. And it has been used for 6 years, so I

would want to ask Dr. Weinstein, do you have any concerns——

Mr. WEINSTEIN. Correct.

Mr. DAVIS OF ILLINOIS [continuing]. About how long this system

has been used, or the White House has continued to rely upon a

nonproductive system?

Mr. WEINSTEIN. Congressman, in fairness to the White House,

what I would like to see is the results of what my colleague here,

Ms. Payton, is doing. You indicated that your process is coming to

a conclusion, so I would like to hear the results of what Mr.

Swendiman and his colleagues have come up with, and it seems to

me to be unfair to judge that system before we have seen it in operation. And this is, literally, the first time it can be seen in full operation.

Mr. DAVIS OF ILLINOIS. Well, let me ask Ms. Payton how she

would respond to that, or if she has any concerns about it.

Ms. PAYTON. If your question, Mr. Davis—I just want to make

sure I understand the question you are asking me—is around—is

it an ideal solution?

Mr. DAVIS OF ILLINOIS. We used it—I mean, the White House

has continued to use it pretty much knowing that it was not yielding the kind of results that you would want to have it yield.

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Ms. PAYTON. I think this is a very complex challenge. It is not

as simple to say this is the right software produce and this is the

wrong software product.

What I have been able to gather from the people who have been

here prior to my arrival, as well as some of the documents that I

have read, is best efforts have been made to actually do a more

comprehensive solution, but once the products had run through

their paces through some of the unique and demanding requirements that EOP has, they have to do both Presidential Records and

Federal Records Act management. They have to separate things

out by components, and they have to be able to record key statistics

so that they can do searches.

And it appears that each time those products were run through

the paces, they were left wanting. So that has been the challenge.

So part of what we have been doing in knowing that we want a

more comprehensive solution—this is not the solution that we want

to live on for the rest of the time that we are on exchange, barring

whatever the next platform is that comes out for e-mail, we know

that we want to move to a newer platform. However, in the meantime, you have to make do with what you have and make sure the

processes around it are tight, make sure that people are trained,

and as much as you can improve the technology around it to make

sure the processes capture any potential problems that may happen.

A comprehensive solution still does not account for, if you have

four processes around a comprehensive solution, if it breaks, you

are still going to have challenges. I think we have seen that in the

industry. And I am not going to, you know, mention by name some

of the large companies that have had challenges with this that do

have more comprehensive solutions.

So I hope I am answering your question, Mr. Davis. Would it be

what my staff and I would have picked if we could have had the

ideal world, probably not. But it is the solution we have, and our

focus is on making sure it is accurate, reliable, stable, and has good

processes around it until we can get on a more comprehensive solution.

Mr. DAVIS OF ILLINOIS. Thank you very much.

Chairman WAXMAN. The gentleman’s time has expired.

Mr. Mica.

Mr. MICA. Thank you, Mr. Chairman. Sixteen years is, I think,

Mr. Chairman, you have been on the committee longer, I am sure

you have, but I have been on 16 years. It is interesting how what

comes around sort of goes around.

Here with this discussion reminded me of, with the Clinton administration, and the missing FBI files, and those were not e-mails,

those were FBI files. Remember Craig Livingstone, and I think

Mrs. Clinton was in the middle of that one, too. But it is interesting how it sort of just all comes around full circle. Now, we are

looking for some e-mails.

And this raises an interesting question, because we have gone

from like hard FBI files and documents to the electronic era. I had

a good discussion with the librarian of Congress because the same

thing is happening with Congress. You used to have all these great,

well, the archivist has an incredible collection of hard copies. I

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think it is just one of the most fabulous things I have ever seen

is to go into the Archives. And you do a, generally, a magnificent

job of preserving those documents. But we are entering a new era

in trying to sort out sort of the rules of how you preserve electronic

communications.

Ms. Payton, this Steven McDevitt that has made some allegations, part of the reason that he was upset was that, I had heard

that there was a difference in technology he wanted to implement.

Are you aware of that as far as recording e-mails and preserving

them?

Ms. PAYTON. Did you——

Mr. MICA. Are you aware of that, Dr. Weinstein?

Mr. WEINSTEIN. Well, obviously, in an ideal world, which is, you

know, Congressman, is the world we live in, it would be best if all

concerned had a very high comfort level with the technology they

were using. I am not privy to the specific arguments involved with

technological debate over what to do at the White House in this regard. I am at the National Archives.

Mr. MICA. Well, is there a difference of opinion as to how the

records were kept, do you know?

Mr. WEINSTEIN. I am not sure that there was. Did you have a

difference of opinion?

Mr. MICA. Well, if there was not, we would have one protocol,

and everything would, things would be saved. And, obviously, some

things are missing that Mr. Waxman would like to find.

Mr. WEINSTEIN. But at the staff level, it seems to me that one

of the things that keeps the system working is a remarkable

amount of civility back and forth, normally, between the staffs in

terms of getting basic things done.

Mr. MICA. But, you know, the high regard I have for the Archives. Mr. Stern, I think you were involved in the Sandy Berger

issue, and I asked that we find out about the missing papers.

Now, Sandy Berger had top secret classified documents he was

charged by President Clinton to report to the 9/11 Commission, and

he had access to and misplaced top secret documents. Is that not

correct, Mr. Stern?

Mr. STERN. He had access. He had clearance. I mean, I could answer your question, if you would like. It seems that is, obviously,

a separate topic from what this hearing is about.

Mr. MICA. No, but you are charged, it is just like I am going to

ask Ms. Payton about the Clinton records, you are charged with

keeping Presidential records. The Clinton records, is there not a

hold on some of those being released now for the Clinton Library?

Ms. Payton, is that correct?

Ms. PAYTON. My understanding is they are NARA, sort of in a

kind of a temporary area until all of them are——

Mr. MICA. So we cannot get access to Presidential records from

that administration, and then the Archives, which does its best in

preserving them, particularly a new mode of communications which

is electronic, we take top-secret hard documents that were stuffed,

according to Mr. Lester’s e-mail, which I would like to make part

of the record, Mr. Chairman.

Chairman WAXMAN. We will accept it for review and not make

it part of the record.

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Mr. MICA. OK, but it refers to his e-mail as to how those documents were preserved, and I guess they were stuffed in Sandy

Berger’s socks.

Mr. MICA. Is that what you understand, Mr. Stern?

Mr. STERN. There’s been a lot of review and investigation by lots

of folks about what Mr. Berger did.

Mr. MICA. But there are e-mails that say one thing, and then the

IG Report says another thing. And I want them to be made part

of the record.

Chairman WAXMAN. The gentleman’s time has expired. The

Chair will not admit that in the record. That has nothing to do

with this hearing.

Ms. Watson.

Ms. WATSON. Thank you so much, Mr. Chairman, I want to address my remarks to Ms. Payton. And Ms. Payton, to comply with

the Presidential Records Act, an e-mail archiving system has to ensure that it captures all pertinent e-mail, but it also has to prevent

people who are unauthorized from tampering with or deleting email, would you not agree?

Ms. PAYTON. Yes, ma’am. Yes, absolutely.

Ms. WATSON. And the committee has been informed that in 2005

the White House was warned that not only its system was at risk

of data loss but also that it was vulnerable to tampering. And Mr.

McDevitt, who worked for you at the White House, correct? He did

work for you?

Ms. PAYTON. Yes. I started mid-May 2006.

Ms. WATSON. He informed the committee that there is no way to

guarantee that all records are retained in their complete and unmodified state. And he said the approach of simply storing e-mail

messages in PST files provide no mechanism or audit trail that

tracks changes to day the files. According to him, the integrity of

the data could be called into question because it was not possible

to ensure that inappropriate action, either intentional or unintentional, could not occur. So this does not necessarily mean that

someone tampered with White House documents, but it does mean

there is no way to know if someone did.

Let me then address this to Dr. Weinstein. Does this raise a concern for you that there could be tampering?

Mr. WEINSTEIN. Congresswoman, anything of this kind raises

concerns for me and any possibility of tampering in any fashion.

Because of an unfortunate employee——

Ms. WATSON. I know, but are you concerned about that?

Mr. WEINSTEIN. Am I concerned about this specific issue that you

raise?

Ms. WATSON. That the data could be tampered with.

Mr. WEINSTEIN. I would like to see some of the material, if I may

that——

Ms. WATSON. I cannot hear you, sir.

Mr. WEINSTEIN. I would like to read through some of the material that you have in front of you so that I can judge for myself.

Ms. WATSON. No. Give me a yes or no.

Mr. WEINSTEIN. Yes, I am most concerned. Yes.

Ms. WATSON. Yes is your answer?

Mr. WEINSTEIN. Yes was my answer.

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Ms. WATSON. Yes, it is just a simple question, OK.

Mr. McDevitt also raised another concern, and this one is even

more serious. He stated that there was a critical security issue in

this system that was not identified and corrected until 2005. And

he said this: ‘‘During this period it was discovered that the file

servers and the file directories used to store the retained e-mail

PST files were accessible by everyone on the EOP network.’’

Now, Ms. Payton, the Executive Office of the President has several thousand people, and your former employee, Mr. McDevitt, is

saying that until 2005 any of them could access these e-mail files.

They could delete files, they could modify files, or read the files of

other officials. Is that correct?

Ms. PAYTON. Ms. Watson, since that precedes me, I am going to

go off of information based on conversations with my staff, and in

asking and trying to understand the e-mail situation so we have

the right course of action and the right people matched to it, that

has not been brought up.

I mean, at some point in time I can certainly go back and ask

them about that. That has not been brought up, nor is that

typical——

Ms. WATSON. Let me stop you.

Ms. PAYTON. Yes, ma’am.

Ms. WATSON. Are you saying to me that it has not been brought

up that these files could be deleted or tampered with? That there

was a system-wide access by 3,000 customers to the servers that

are in the data center.

It would appear to me that if you had a system in place so it

could be accessed by 3,000 people or unofficial personnel, and it

could be changed, you mean to say that there was no concern or

discussion? Is that what I am to hear?

Ms. PAYTON. I have not been made aware that at some point in

time that these servers were open to just anybody.

Ms. WATSON. So, as I understand it, and please correct me, you

had a system in place in the White House for several years in

which anyone could have gone in and deleted files without a trace?

Ms. PAYTON. Ma’am, I do not know that to be true. I have not

been told that.

Chairman WAXMAN. The gentlelady’s time has expired.

Mr. Duncan.

Mr. DUNCAN. Thank you, Mr. Chairman. Let me just ask that

again. I think maybe you just answered this, you do realize, of

course, you are under oath. Do you have any knowledge of any kind

that any person has ever tampered with or deleted any of these

files?

Ms. PAYTON. I have no knowledge of anybody going out there and

intentionally deleting files that should not be deleted.

Mr. DUNCAN. All right.

Ms. PAYTON. Again we are referring to a time period before my

time, but I have not had an employee come to me and say this is

something that needs to be researched and that anything has happened. So I do not know what to do with that statement.

Mr. DUNCAN. So you have no knowledge of anybody purposely

trying to hide or delete something from this committee or from any

Government investigator?

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Ms. PAYTON. That is correct. There is only one exception that is

allowed as far as any kind of delete, and that has to go through

a very specific process. That is only in the event that information

from the classified network is found on the unclassified network.

That is the only time that a delete is allowed to happen, and that

is managed through very tight process.

Mr. DUNCAN. Mr. Swendiman, let me ask you, or Ms. Payton either one, how many times has your staff or either of you or your

staff briefed Oversight Committee staff, and can you tell us how

many letters of inquiry you have received from the committee?

Mr. SWENDIMAN. I briefed the Oversight staff once very recently

in terms of being responsive to the committee. We have certainly

in hand the chairman’s letter, and we have been producing the documents that were requested. That has consumed approximately,

given the last check of about February 8th, about 1,500 hours of

time from the OA staff to do that, and that’s staff across the board;

that is not just the OCIO’s office, but it is the Chief Financial Officer, the Chief Operating Officer, the Procurement Division, and so

forth.

Mr. DUNCAN. That is really what I was getting at, is some idea

about how much staff time, or how many hours or how much, has

been devoted to trying to find this information. Do either of you

have any idea about how many documents or interviews have been

submitted? How many pages of documents of pages have come here

to the committee in regard to this investigation?

Mr. SWENDIMAN. Right now I think the estimate that I have been

given is that approximately 15,000 pages of documents have bene

produced to the committee, and approximately another 15,000 have

been shown to the committee.

Mr. DUNCAN. So 1,500 hours and 15,000 pages.

Mr. SWENDIMAN. Approximately, sir.

Ms. PAYTON. Mr. Duncan, since you have addressed it to both of

us?

Mr. DUNCAN. Sure.

Ms. PAYTON. Allen covered the OA portion which would cover my

area. But in addition to that you had asked the question about

briefings, and I have provided, if I remember correctly, it has been

four briefings, two in person, two via telephone on this topic to

committee staff.

Mr. DUNCAN. All right. Thank you very much.

Chairman WAXMAN. Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman. Ms. Payton, I would

like to ask you about some e-mails that were missing from Vice

President Cheney’s office that were related to CIA Agent Valerie

Plame Wilson. Before I get to any questions, let me see if I have

the chronology right, and I know you will correct me if I am wrong

on that.

I understand that first your office produced a chart in 2005 that

showed 473 days with no e-mail sent to or from certain components

of the White House in the Microsoft Exchange System.

For the Vice President’s office, there were days during the week

of October 1, 2003, with no e-mail, and that was apparently of interest to Special Counsel Patrick Fitzgerald, who requested those

documents during the period. My understanding is that when the

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inventory was done in 2005, nobody at the White House could locate those e-mails in the PST files that were stored in the servers.

And now, as far as I know in 2008, the White House still hasn’t

located those e-mails in the PST files in the White House servers.

So after not finding the e-mails there, the White House went to

backup tapes and ultimately recovered the e-mails for those days.

These were provided to the Special Counsel.

Is that pretty accurate so far?

Ms. PAYTON. Yes.

Mr. TIERNEY. So my first question, I guess, is what happened to

the files that were supposed to be on the White House servers?

Ms. PAYTON. Well, we have not finished our analysis, Mr.

Tierney. We still have, roughly, 17 million e-mails as we are going

through this first pass that we have not attributed to a component,

and in our phase two we will have enhanced technology which will

allow us to read those messages at a lower level and attribute

those to a component.

Mr. TIERNEY. But so far, I mean, this is a long period of time

that has transpired now. You haven’t found them, and now you

went to a pretty serious effort in trying to respond to Special Counsel Patrick Fitzgerald, I would assume, and found none of them on

the servers and had to go to the backup. Right?

Ms. PAYTON. Yes, that is correct.

Mr. TIERNEY. Let me ask you about the backup tapes, then. They

are supposed to, as far as I know, copy everything on the White

House servers, right?

Ms. PAYTON. They are disaster recovery backup tapes, so they actually take a picture of how things look in the data center at that

day.

Mr. TIERNEY. Right.

Ms. PAYTON. So it is a picture of the server, the applications on

it, and then any data associated with the applications.

Mr. TIERNEY. So it should copy the journals, the PST files, and

everybody’s individual mailboxes.

Ms. PAYTON. Yes.

Mr. TIERNEY. Now, we got a document showing that when the

White House restored the backup tapes for the Vice President’s office, there were no journal files, there were no PST files containing

e-mails for the days that Mr. Fitgerald was interested in. So not

only were they missing from the servers, they were missing from

the backup tapes as well.

Can you explain that to us?

Ms. PAYTON. Because this predates me, I do not know all the details of that particular restorer. I do know that they——

Mr. TIERNEY. Well, does it mean that there were no journal files

of the time the backup tape was made?

Ms. PAYTON. I am not sure. What I do know is that 70 mailboxes

were restored and 17,000 e-mails, but I don’t know all the details

of that particular restoring process.

Mr. TIERNEY. Well, I would assume, you know, the problem with

just having the mailboxes of individual officials of the Vice President’s office is, it is my understanding, is that if somebody deletes

an e-mail on the same day that they receive it, it is gone. It is not

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stored or whatever. We will never know what was on there, so no

historical record of that.

So I am looking at this, and what—I will be an expert—it looks

that there is a lot of unanswered questions here about the e-mails

that were missing from the Vice President’s office.

Ms. PAYTON. Mr. Tierney, if I might, we still have PST files that

we have not been able to associate with a component. I am assuming that was the same case back in 2005, but I do not know that

for sure. They contain 17 million e-mails. Once we go through

phase two, it is our hope and our assumption that we are going to

be able to find e-mails that were properly archived, but they are

just not associated with a component at this point in time.

Mr. TIERNEY. Well, I hope you will forgive me for being a little

bit skeptical, because a lot of time has come and gone on this.

Ms. PAYTON. I understand.

Mr. TIERNEY. The servers did not have it. It looks like the

backup certainly, at least to date, has not had it despite fairly extensive efforts to recapture that. You know, you want us to rely on

this system to believe that, you know, this is something that is reliable, and I just do not see that at this point in time, and it is disconcerting.

I mean, all the other questions what we have seen here today

about the RNC being, deleting tapes and everything disappearing,

and these are critical periods of time where the historical records

should be accurate and should be complete. In the amount of time

that it has taken to review all of these things and still come up

with non-answers is disturbing.

So I yield back, Mr. Chairman. Thank you.

Chairman WAXMAN. Mr. Bilbray.

Mr. BILBRAY. Thank you, Mr. Chairman.

Mr. Stern, I had the privilege of having a discussion with Mary

Nichols, who previously was at EPA and now over at Air Resources

Board, about an issue that is raised here, and that is the California

waiver, and the hearing and the process on that.

In fact, I have noticed that a group that has called themselves

Citizens for Responsible Ethics in Washington [CREW], has filed a

lawsuit pertaining to the latest lack of a waiver for California pertaining to greenhouse gases. So, sir, do you know if they have filed

a lawsuit pertaining to the mandate to use ethanol in California

that California tried to get a waiver for from the Clinton administration and was blocked by that administration? Do you know if

they filed anything?

Mr. STERN. I am sorry. I am with the National Archives. I am

not familiar with that EPA issue.

Mr. BILBRAY. OK, I appreciate that.

Mr. Chairman, I just don’t know if that group was involved in

any litigation pertaining to the other waiver, but I am interested

in this, and, Mr. Weinstein, do we have the possibility, if we wanted to followup on this other waiver, to get into the records of the

Clinton administration about what was done and why they would

not issue a waiver to California Air Resources Board when we requested it for over 8 years?

96

Chairman WAXMAN. I think it would depend, Congressman, on

whether those records had already been totally processed for release.

Mr. STERN. Yes, under the Presidential Records Act, the Congress, through committee or subcommittee, can make what we call

a Special Access Request for records of a former President. So if we

got a formal request from the committee for Presidential records of

the Clinton administration, then we would respond to that, search

for those records, see if we have them at the Clinton Library, and

respond to the committee. So there is a formal process through the

PRA to do that.

Mr. WEINSTEIN. But that would have to be the chairman of the

committee responding.

Mr. BILBRAY. The chairman of the committee would have to request that?

Mr. STERN. That is correct.

Mr. BILBRAY. OK. Because it is an ongoing problem that Chairman Waxman knows we are concerned about the environmental

impact of the ethanol/methanol mandate. We have gotten the methanol off, but we still have a mandate on ethanol, and why the administration, previous administration, kept telling us that they

were going to pull the mandate, it never did; and what meetings

and communications they had with industry representatives who

were representing those who were profiteering off of this mandate

as opposed to where we go.

So that is obvious. Now the concern is what kind of contacts the

Republican administration that followed made, specifically to

greenhouse gas issues.

Mr. Chairman, at this time I would like to yield my remaining

time to the gentleman from Florida.

Mr. MICA. Ms. Payton, you joined the Office of Administration in

mid-2006, so all the missing e-mail issues occurred, exclusively, before your tenure began, is that correct?

Ms. PAYTON. Yes. I mean that is correct.

Mr. MICA. And were you around when these things took place,

too?

Mr. SWENDIMAN. No.

Mr. MICA. You were not?

Mr. SWENDIMAN. No, my tenure began November 27th of——

Mr. MICA. And so have sort of a little game being played. This

Steven McDevitt, he worked for you? Did he leave on good terms,

or was there some dispute? He is sort of the accuser here bringing

up that they could have had a system that would have better, that

would have preserved things, and some things may be missing,

they may not. But he has raised these questions, right?

Ms. PAYTON. He did, initially, report directly to me, and then

once I got a Deputy Director, he reported to the Deputy Director.

Steve——

Mr. MICA. There had to be some disagreement. I mean, were you

aware that, I mean, now he is making these charges that you all

didn’t handle this right.

Ms. PAYTON. He was very passionate about the ECRMS platform

that was going to go to pilot, and the pilot had to keep being delayed. And he was——

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Mr. MICA. So there was a disagreement on how these records

would be preserved?

Ms. PAYTON. We actually did not make the decision around

ECRMS until after he left.

Mr. MICA. OK. An important question, Mr. Chairman. One of the

things I passed after the Clinton fiasco was the White House had

to live under all the laws the rest of us did. I think Mr. Ehlers and

I passed that after we went through years of seeing the disorganization at the White House and non-compliance with law

under the Clinton administration.

Do we need to change the law? Is there something—because

again we have new technology that we are trying to capture history. Let’s go right now the line. Tell me if you think the law is

adequate or something we need to change.

Chairman WAXMAN. The gentleman’s time has expired, but if any

Members wish to answer his question.

Mr. MICA. I don’t think——

Chairman WAXMAN. If any witnesses wish to answer his question.

Mr. SWENDIMAN. I think with regard to the law or rules on technology, I need to defer to somebody who is an expert in IT and has

a technological background.

Ms. PAYTON. As far as the law goes, I cannot legally comment on

whether or not the law should be changed, but the fact that more

communication that used to happen in the hallway and used to

happen on the telephone now happens on e-mail. So e-mail volumes

are driving up, and it is now, you know, it is also a very casual

form of communication as well as a very official form of communication.

So we do have some work to do, both on the user side as well

as on the technology side to understand the new protocols around

managing, preserving it properly, managing it, planning for that

type of volume, because it is only going to increase.

Did I get at the heart of your question, sir?

Chairman WAXMAN. Well, the question was, do you recommend

a new law. You are not recommending a new law. Let’s go on, if

anybody wants to answer his question, directly, let’s do that, because other Members are waiting to ask their questions.

And the gentleman’s time has expired.

Mr. Weinstein.

Mr. WEINSTEIN. Mr. Chairman, as you know, I am an historian

by profession, and I am afraid I am unable to respond to that question. Certainly not without you and the Honorable Member agreeing on a particular thing. When there is consensus in this body,

then that is the moment that probably the law should move forward. I will stop there.

Chairman WAXMAN. OK. Anybody else want to respond?

If not, Mr. Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman. I am going to ask a

question that is based on a conversation I had several years ago,

before I ever dreamed of getting into politics, when I was a journalist. I actually had forgotten about this conversation, but I was reminded of it when all of these disappearing e-mails, when the story

of them arose.

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A woman told me, this was back in 2004, 2005, that she had a

blood relative who worked for a private contractor somewhere in a

remote area from D.C., I don’t remember whether it was Virginia

or Maryland. And that every 6 weeks or so he came, his company

came to the White House and took computers and hard drives back

to a remote location where he was many stories underground. I am

not exactly clear on which term she used, whether she said cleaned

or scrubbed the hard drives of those computers.

I am very honest to say, she implied a nefarious motive. I as a

journalist wasn’t quite sure, and I understand the danger of hearsay stories like that. I wouldn’t even ask the question except for

the connection to missing data. So my question is to Mr.

Swendiman and Ms. Payton, are you aware of any activity or procedure that resembles the activity that I just described?

Mr. SWENDIMAN. Sir, I am aware of none.

Ms. PAYTON. I can’t comment on that time period, but I can comment currently. There are, as employees depart, if we want to be

able to re-use their equipment, we actually take the files and store

them on a shared drive. Then if we want to re-use their equipment,

we would need to wipe their drive, so that we are not buying a new

PC and then you can’t use it any more, every time you have a new

person.

So from a current standpoint, that is a practice that we are

using. I don’t know if that answers your question.

Mr. YARMUTH. Well, it may.

Let me ask another one, though. Are you aware of any contract

with a non-Governmental entity that involves handling of White

House computer information?

Ms. PAYTON. We have——

Mr. YARMUTH. Other than the one you may have just described.

Ms. PAYTON. We have 60 contractors on staff who help us with

our messaging, who also help us with our PC tech support. So contractors would be touching computers. This process that she is

mentioning, I am not sure I am aware of.

Mr. YARMUTH. OK. And so you don’t, well, OK, I will leave it at

that. But let me ask a question, you mentioned one issue with regard to deleting information that might be classified, and you described it as being subject to a very tight process. I think those

were your words. How can we as a committee, how can the Congress, how can the American people be confident in what that process is and that there is any accountability for it? Or are we relying

totally on the White House’s assurance that it is a tight process

that only deals with classified information?

Ms. PAYTON. I am not exactly sure how to answer your question.

I mean——

Mr. YARMUTH. Would you be willing to, for instance, describe the

tight process that you use?

Ms. PAYTON. Sure. I can definitely walk you through that.

I am sorry, I just got guidance that because we are talking about

classified, I can’t talk about the details of classified in this setting.

So I will just tell you organizationally, we have an Office of Security Emergency Preparedness. If they are notified, they notify us,

we get our direction and we follow our direction.

99

Mr. YARMUTH. OK. Doesn’t sound like a very tight process, but

I will let you characterize that.

I want to ask you now about the ECRMS program. You made the

decision to cancel that program after what was described to the

committee by Mr. McDevitt as a pretty extensive 3-year process in

which a lot of different people made a decision that this was the

system that was desirable to implement. You made that decision

and you have given in your written testimony some reasons for it.

You gave, apparently, in a meeting with Mr. Stern’s staff, you

gave some slightly different reasons. I would like to ask Mr. Stern,

did you think and did your staff think that Ms. Payton’s reasons

for canceling the ECRMS program were legitimate and were compelling?

Mr. STERN. I am really not in a position to answer that. We defer

to them. And it is the White House’s responsibility to make the

records management decisions. We certainly, as we have said before, hoped and expected they would have a formal records management system in place. We thought that ECRMS was going to be

it. So we were disappointed that they didn’t use ECRMS and would

hope that they still try to get one in place even now, if they can.

Mr. YARMUTH. My time is up, Mr. Chairman, I yield back. Thank

you.

Chairman WAXMAN. Thank you very much. Mr. Welch.

Mr. WELCH. Thank you, Mr. Chairman. I want to thank all the

witnesses. I want to focus on the recovery of some of the e-mails

and what efforts have been made to do that. I don’t really want to

focus on motives or what we can prove when we don’t have the documentation to draw any realistic conclusions.

Mr. Stern, the Presidential Records Act of course requires that

official business be available and then stored in the repository of

the National Archives, correct?

Mr. STERN. Correct.

Mr. WELCH. And it is your responsibility to see that is done?

Mr. STERN. Correct, to ensure that all the Presidential records in

the White House are transferred to our custody.

Mr. WELCH. Right. And whether an official action involving

White House business is done in a White House e-mail account or

an RNC account or g-mail account or AOL account, if it is official

business it belongs in the Archives, correct?

Mr. STERN. Ultimately, at the end of the administration, it

should be preserved as a Presidential record and then transferred

to us.

Mr. WELCH. And we know that about 88 White House officials,

in fact, used a non-White House mail account to do some official

business, for whatever reason, correct?

Mr. STERN. I guess. I am not familiar with the details of that.

It is my understanding that there was at least some belief, even

by the White House, that there could be official business done on

the RNC system.

Mr. WELCH. And you have made specific inquires from the White

House about having them obtain from the RNC the e-mails that relate to official White House business, correct?

Mr. STERN. Yes, we asked them to do that.

Mr. WELCH. You asked them to do that in May 2007?

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Mr. STERN. I believe so.

Mr. WELCH. What did they do as a result of that request?

Mr. STERN. We don’t know specifically. They said they were attempting to do that, and we have inquired periodically and we

don’t know anything specific except that we though they were still

continuing in that effort.

Mr. WELCH. Since you made the request in May 2007 for the

White House to gather up its e-mails that were used on the RNC

account, are you aware of any specific, concrete step that the White

House has taken to comply with that request?

Mr. STERN. No.

Mr. WELCH. Do they have a legal duty to provide official communication records to the Archives?

Mr. STERN. At the end of the administration, yes.

Mr. WELCH. Ms. Payton, are you aware of any specific and concrete step that the White House has taken to comply with the request by Mr. Stern on behalf of the National Archives to obtain

these e-mails?

Ms. PAYTON. Mr. Welch, because that is in a separate technology

team that reports up through RNC, I am not involved in that.

Mr. WELCH. So the answer is it is not your job, so you don’t

know?

Ms. PAYTON. That is correct, sir.

Mr. WELCH. Mr. Swendiman, how about you?

Mr. SWENDIMAN. The Office of Administration is responsible for

the official, sensitive but official EOP network. It is not——

Mr. WELCH. So it is not your job, either?

Mr. SWENDIMAN. It is not.

Mr. WELCH. All right. So nobody here can speak for the White

House and explain to Mr. Stern why they haven’t done what they

told Mr. Stern they would do, namely, make those communications

subject to the Presidential Records Act available to the National

Archives? You don’t know?

Mr. SWENDIMAN. Well, I think I have tried to explain this as I

understand it, sir, as to what steps I have been told have been undertaken.

Mr. WELCH. Well, no, I want to know, well, no steps. Is he misinformed?

Mr. SWENDIMAN. I am not privy to the communications Mr. Stern

has had with——

Mr. WELCH. Well, let me ask you this. Apparently, some of these

may be gone forever, we don’t know. But there are two boxes of

backup tapes at the RNC, we are told. Mr. Stern, are you aware

of any effort to make those backup, those tapes in those two boxes

available to the National Archives?

Mr. STERN. They wouldn’t make those available to us. If they

were going to do a recovery effort, they would either do it themselves and then search through recovered e-mails for official emails, or they would let somebody through the White House do

that.

Mr. WELCH. Ms. Payton, are you aware of any recovery effort

that has been made with respect to those two boxes?

Ms. PAYTON. No.

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Mr. WELCH. Mr. Swendiman, are you aware of any steps that

have been taken to recover the e-mails that are contained in those

two boxes?

Mr. SWENDIMAN. Sir, I can’t speak to the two boxes. What I

can——

Mr. WELCH. So you do not know?

Mr. SWENDIMAN. I do not know specifically as to those two boxes.

Mr. WELCH. So there is no dispute, either on the part of the

White House folks or the National Archives folks, that any e-mails,

whether it’s on an RNC account or a White House account, that

may be in those two boxes, and this goes back to the 2001, 2002

when major decisions in this country were being made, including

the decision to go to war in Iraq, there’s no question that anything

that relates to official White House business is subject to the Presidential Records Act? Mr. Swendiman, do you agree with that?

Mr. SWENDIMAN. Could you repeat the question, sir?

Mr. WELCH. Any document, e-mail that relates to White House

business is subject to the Presidential Records Act, correct?

Mr. SWENDIMAN. Any document that involves official business

that involves the constitutional, the statutory, ceremonial activities

of the President or the immediate White House staff is subject to

the Presidential Records Act.

Mr. WELCH. Right, we are reciting the law, we are all in agreement. It is the compliance with the law question that we have. I

understand it is not your job. So I don’t want to be asking you to

do somebody else’s job, you have your hands full.

I guess I will come back to you, Mr. Stern, I am close to the end

of my time. What if anything can you do in order that the National

Archives have possession of the official communications that may

be there, or what can you do to make certain that the National Archives can see that whatever reasonable steps can be taken to recover that which is available is done, so that the Presidential

Records Act is complied with?

Mr. STERN. Under the PRA, we have no direct authority. All we

can do is ask them for and acquire. And then we also can report

to the Congress. Obviously, the Congress is aware of this issue, so

I think the PRA envisions that it is up to the Congress when dealing with Presidential records to communicate and work directly

with the White House on——

Mr. WELCH. So here is where we are, just to sum up. You have

asked and gotten no reply. You don’t know and somebody else does,

but they are not here.

Thank you very much. I yield the balance of my time.

Chairman WAXMAN. The gentleman’s time has expired. Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman.

Mr. Payton, one of the White House officials who we contacted

in preparing for today’s hearing was Steven McDevitt, who worked

for you. We asked him whether there was any concern about abandoning the e-mail archiving system and relying on this ad hoc

journaling process. He said there was great concern. Let me show

you an excerpt from page 7 of his answers to the committee. He

stated: ‘‘There was a great deal of concern about proceeding with

the migration of Outlook Exchange without having an adequate email records management solution in place.’’

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Mr. McDevitt described in detail the risks that were discussed

within the White House on numerous occasions. One of the major

concerns was the risk of data loss. He said this: ‘‘The process by

which e-mail was being collected and retained was primitive, and

the risk that data would be lost was high. The potential impact is

that the system does not contain all required data.’’

Ms. Payton, what are your views? Do you agree with your staff

that the archive system was inadequate and risked losing data?

Ms. PAYTON. The challenge about his statement is it does predate

me. And this is also his technology professional opinion. In talking

with the staff on our go-forward basis, we have improved the people, process and technology with what we have to live with until

we can get to a more comprehensive solution. Back at that time,

even if you had a more comprehensive solution in place, if you don’t

have the right processes to make sure it is running right, you can

still end up with the same result. That is why we want to get to

the bottom of our analysis and figure out if we still have any resulting anomalies and then make a decision around doing a restore. But to be able to comment specifically on things that predated me, I am unable.

Mr. CLAY. But look, it wasn’t just the internal White House staff

that raised the red flag about the archive system. The committee

has obtained notes from a meeting on January 6, 2004 between

staff from the Archives and the White House. According to these

notes, Archive staff were also raising these very same concerns

with the White House. And the notes describe how the Archive

staff learned that the White House was converting from Lotus

Notes to Microsoft Exchange e-mail. Then in bold face, the note

says this: ‘‘Messages in Exchange are not being captured in ARMS

or any other system external to Exchange. The NARA team emphasized that EOP was operating at risk by not capturing and storing

messages outside the e-mail system.’’

What were the best efforts that the White House put forward

when they did not heed their own warning?

Ms. PAYTON. Mr. Clay, I don’t know if I have time to, I would

like to, if you would allow me, to actually walk through sort of

where an e-mail travels in the system.

Mr. CLAY. No, we don’t have time for that, but I will say this,

in your previous testimony you mentioned how much it is going to

cost to retrieve these e-mails.

Ms. PAYTON. Right.

Mr. CLAY. Well, you know, all of that is taxpayer dollars. And it

is such a cavalier attitude that it may be $50,000 1 day, $150,000

the next. But where does the care come in for taxpayers’ money?

Ms. PAYTON. That is part of why we want to do the analysis first,

so we can have a very targeted list. If there are any anomalies at

the end of the work we are doing, we have a very targeted list for

the restore. So by having less days to restore, we will save money

as far as the restore that needs to be done.

Mr. CLAY. And then no one there heeded their own warnings.

What was all of that about? Nobody said, wait a minute, maybe we

need to listen to Archives. Or maybe we need to listen to our own

staff. And nobody heeded those warnings. What is all of that?

Ms. PAYTON. I wasn’t there, sir, so I don’t know.

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Mr. CLAY. Dr. Weinstein, do you agree that the White House

process was primitive and that there was a high risk of data loss?

Mr. WEINSTEIN. If that is what my staff decided after looking at

this process, I would have to agree that there were some problems.

What the nature of those problems were, I think even Ms. Payton

and Mr. Swendiman would agree that they were working on a new

platform and they didn’t have all the answers.

But I do want to make one point to you, Congressman, on this

issue of who cares about the taxpayer. And it is crucially important, particularly for the cultural institutions in the country, such

as the National Archives, Library of Congress, others, to be very

sensitive to the fact that we can lose the support of the American

taxpayer very quickly.

Congressman Welch, in his questions, had raised one question

with Mr. Stern, my colleague here. Basically, one slight correction,

I signed that letter, I drafted the final version of that letter. So if

the Congressman has any interest in learning who has been trying

to get the Republican National Committee or whomever to return

whatever materials they may have, I will take responsibility for

that.

Chairman WAXMAN. Please speak up. We can’t hear you.

Mr. WEINSTEIN. We have not responded, we have not asked that

question lately. We asked for the return of this last year, we periodically question people. I guess we have to be a bit stronger in our

questioning, in our requests.

Mr. CLAY. But, look, Doctor——

Mr. WEINSTEIN. I will have that information to the chairman by

the end of this week.

Mr. CLAY. But Doctor, excuse me, it seems like everyone was

warning the White House about the risks of data loss. And the

White House’s own technical people were warning them, and your

team in the Archives also warned them. Yet they continued with

the migration and they continued to rely on this ad hoc process

from 2002 until today.

What troubles me is that these are e-mails documenting how the

Bush administration was making decisions. They are official Presidential documents that the White House is required by law to save

and turn over to the National Archives. They belong not to George

Bush, but to the American people. But the White House seems to

have ignored numerous warnings from people inside and outside

the White House about its flawed approach. Do you have similar

concerns?

Mr. WEINSTEIN. More than anything else, I want whatever materials may be in other locations like the Republican National Committee or any other location, if they are official White House documents, they belong with the White House, they belong with the Archives or in preparation for coming to the National Archives. My

main concern here is with the future of my institution, National

Archives.

Chairman WAXMAN. The gentleman’s time is expired.

Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman.

Ms. Payton, I would like to reconcile your sworn statements with

what the committee has since learned, and perhaps you can help

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us. On January 15, 2008, you filed a sworn declaration in U.S. District Court here regarding the loss of White House e-mail. In that

declaration you criticized the chart produced in 2005, showing hundreds of days with no White House e-mail. And here I am going

to quote what you said in the sworn declaration. ‘‘I am aware of

a chart created by a former employee within the OCIO,’’ Office of

Chief Information Office.

Now, that of course, anyone reading that declaration, would believe that a single member created, staff person created this chart

perhaps indeed almost on his own. But the committee in fact obtained documents showing that your office created a 15 person

what you call message storage team to work on this problem. This

team documented its actions in very painstaking detail and reported frequently to the director of administration and White

House counsel.

Ms. Payton, I ask you, why didn’t you mention this team of

White House officials in your sworn declaration?

Ms. PAYTON. Ms. Norton, one of the things that I have mentioned

before is that because this is prior to my arrival, I put the information together based on what my team has told me as well as——

Ms. NORTON. You are unaware, are you testifying here that you

were unaware of this team?

Ms. PAYTON. No, I am explaining to you is based on what the

team has told me, as well as information I had, there was a group

of people who put data together. But as far as——

Ms. NORTON. I am asking you, were you unaware of the message

storage team who worked on this problem?

Ms. PAYTON. Ma’am, all I know is that they put data together.

They did not work on the chart. And that is how it was presented

to me.

Ms. NORTON. Later in your declaration, and here I am quoting

you again, you said ‘‘The OCIO has reviewed the chart and has so

far been unable to replicate its results or affirm the correctness of

the assumptions underlying it.’’ We got a quite different account

from Steven McDevitt, he is the former White House employee who

worked on this project. This is what he said: ‘‘Extensive testing was

performed at that time to ensure that the tools and the tabulation

process was performed correctly. An independent verification and

validation also was performed by a different set of contractors to

ensure that this analysis process was completed correctly and that

the data was correctly analyzed and accurately represented.’’

Ms. Payton, why didn’t you mention this testing by the independent contractors?

Ms. PAYTON. I am not aware of that testing.

Ms. NORTON. You still are not aware of that testing?

Ms. PAYTON. I am aware that Steve has made those statements.

We have a team that does IV&V. When I asked my staff about the

chart and the validity of the chart, one of the things they said to

me is, as far as they could tell, it had not gone through an extensive IV&V process.

Ms. NORTON. And so no one made you aware—this is an amazing

testimony given the position you were in and the post you held.

Now, in your declaration again, it is a sworn declaration, you

stated that there was a ‘‘lack of supporting documentation.’’ For

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somebody who said she didn’t know anything, you certainly had

something to say in your sworn declaration. Lack of supporting

documentation. But Mr. McDevitt told us that the chart itself was

just a summary. He said the complete analysis was 250 pages in

length, it included the complete background data and trend analysis. Why didn’t you mention, Ms. Payton, the 250 page supporting

document in your sworn declaration?

Ms. PAYTON. That document had not been made aware to me. I

know that we produced a lot of documents in response to this. So

that document must not have been on the radar of my team to inform me.

Ms. NORTON. My goodness, I don’t know how you did your job.

You seem to have known nothing about it.

Ms. Payton, in your declaration you stated that you have serious

reservations about the reliability of the chart. Well, it would appear that the easiest way to get information about the chart was

to talk to the person who put it together, one of those of course is

Mr. McDevitt. In fact, this is exactly what the Archives recommended to you. On November 6, 2007, Sam Watkins from the

Archives sent you this e-mail, and I am quoting from it, Ms.

Payton, ‘‘It would be useful for someone to contact the original author-requesters of the chart to ask questions about its nature and

meaning, the methodology used to produce it, the shortcomings you

have noted, and whether they prepared any additional or related

documentation.’’ But when we talked to Mr. McDevitt, he told us

that throughout the entire process, you never contacted him once,

even though he worked directly for you in 2006, while you were

there. Why did you not contact him, Ms. Payton?

Chairman WAXMAN. The gentlelady’s time has expired, but

please answer the question.

Ms. PAYTON. At that point in time, when we were doing that

analysis, we had already found flaws with the tool. So talking with

Steve at that point, he probably was not aware that those flaws

with the tool that was used existed.

Ms. NORTON. I didn’t ask you that. I said why hadn’t you spoken

directly to Mr. McDevitt?

Ms. PAYTON. After he left the EOP?

Ms. NORTON. Directly with him in 2006 while you were there,

Ms. Payton.

Ms. PAYTON. He reported to me directly for a short time, then he

reported to the Deputy Director. I am not sure I understand the

question.

Ms. NORTON. Ms. Payton, look, I think the credibility problems

you present are patent here. If you did not know, then you apparently tried not to know, even when the Archives told you that

someone who was working for you could in fact tell you and

again——

Ms. PAYTON. Steve and I had multiple conversations about

records and——

Ms. NORTON. Why didn’t you ask him any of the questions I have

just run down? If he had all this information, why didn’t you inquire?

Chairman WAXMAN. The gentlelady’s time has expired.

Mr. Davis.

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Mr. DAVIS OF VIRGINIA. I think the time has expired and we need

to move on.

Chairman WAXMAN. I think that question will have to stand as

a rhetorical question unless you have anything further you want to

add, Ms. Payton.

Ms. PAYTON. No, that is fine.

Chairman WAXMAN. Mr. Sarbanes.

Mr. SARBANES. Thank you, Mr. Chairman. Thank you to the witnesses. I just want to preface my question by saying that, I am trying to imagine people watching this, just sort of ordinary folk

watching this hearing. I have to believe that they would find it

completely implausible that this number of e-mails, this number of

days of e-mail traffic would just disappear by accident. And I mean

to imply what I am implying.

But let me ask you, Ms. Payton, are you familiar, and I know you

weren’t there at the time the White House decided to abandon the

ARMS system that was in place. But you are an IT person and you

kind of know this arena. Have you become familiar with what that

ARMS system did? Do you have any understanding of what the

structure of it was and how it worked at all?

Ms. PAYTON. I have a general understanding, because it exists

today. It still houses the Notes records. It was built in 1994, and

it was built actually for a system that preceded Notes Mail. It had

to be heavily customized so that it could interpret Notes Mail and

be able to actually store it in ARMS for record keeping.

Mr. SARBANES. Did you ever find yourself over the last year or

two saying, gosh, I wish they hadn’t abandoned that system back

in whenever it was, beginning of the term, because things would

have been a lot easier, we would have been able to collect things

in a much more deliberate fashion? Did you ever find yourself saying that kind of thing?

Ms. PAYTON. Obviously it would be nice. I try not to second guess

people that I walk in behind.

Mr. SARBANES. It would have been terrific to have had that system in place. It seemed to be working extremely well. It is inexplicable that the White House would choose to move away from

that and toward this other system. If I was somebody, if I were

somebody who wanted to get around the system, that wanted to delete e-mails, make the record of my communications disappear, the

system that the White House moved to would be an easier system

to accomplish that, would you not agree, compared to what had existed before? It certainly seems that way from the testimony.

Ms. PAYTON. Actually, Mr. Sarbanes, it is a little bit more complicated. Because when an e-mail comes in through Exchange, it

automatically gets copied over to a journal. So for example, if you

were at the EOP and you were in the Office of Administration, and

let’s say I was in OMB, if I e-mailed you, automatically a copy will

go into the Microsoft Exchange Journal underneath OMB and then

when you get your copy, it goes into the Exchange Journal as well,

underneath OA. Plus, it is also in your in basket and my sent.

Then when we do the PST archive, your record that is in the OA

journal moves over to the OA PSTs, the personal storage tables

which is also another Microsoft product. Then my e-mail, which

was under OMB in the OMB journal, would move over to the——

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Mr. SARBANES. Well, my, from reading——

Ms. PAYTON. So there are lots of different places that e-mail

would be.

Mr. SARBANES. Well, lots of different places also where human

intervention could alter the recording of the information, it seems

to me. But let me move away from you. I do want to applaud you

for all the things you are trying to do now, but it strikes me as

building a wonderful barn and painting it a wonderful color of red

and meanwhile, the cow is out the barn and in a pasture somewhere, given what has happened.

I just wanted to ask the folks from the Archives, if 10 is where

you want to be now in the transition, on a scale of 1 to 10, anticipating that we are coming to the end of the term, where would you

say we are, from your assessment, on a scale of 1 to 10?

Mr. WEINSTEIN. Let me answer that two ways. I will say that we

will be a 10 by January 20, 2009. We will be a 10.

Mr. SARBANES. Where are you now?

Mr. WEINSTEIN. Somewhere in between. I won’t give it a number.

But we have a way to go, but we will get there.

Mr. SARBANES. I applaud your confidence and I hope it is wellfounded, because we don’t want these records to be lost.

The last question I have, because I am running out of time is,

we have talked about these backup tapes, disaster recovery tapes,

very appropo term in this context, because the loss of these e-mails

strikes me as a disaster. So it makes sense that they would be

called disaster recovery tapes.

My question is this: who has possession of those? In other words,

if we get to January of next year and the recovery process isn’t finished, but there is still out there material from which you can conduct the recovery, where does that material go? Who has possession of that? Does the Archives take possession of whatever the apparatus is from which the recovery can be conducted?

Mr. WEINSTEIN. I am going to let our expert on recovery tapes

deal with that one.

Mr. STERN. I can describe what happened in the Clinton administration, because they did have to undergo a tape restoration

project that started during the administration and was not finished

on January 20, 2001. And the Office of Administration continued

to be responsible for that project. They rented an offsite facility up

in Maryland. But the legal custody of the records and in fact those

backup tapes did transfer to us. So the tapes became ours on January 20th, the records became ours. But the work was still done by

OA through a contractor that we then coordinated with and helped

supervise. But they still did the work. So if the same situation

arose here and a recovery effort starts and is not completed, I assume it will be the same case. The tapes will become our legal

property, but still need to be worked on by OA until it is complete.

Mr. WEINSTEIN. I have to stress, Congressman, that the financial

responsibility for correcting the situation is the White House’s, not

NARA’s. It is the White House’s.

Mr. SARBANES. Thank you, Mr. Chairman. I hope that supervision by NARA is good come post-January. Thank you.

Chairman WAXMAN. Thank you, Mr. Sarbanes. Mr. Platts.

108

Mr. PLATTS. Thank you, Mr. Chairman. I would like to yield time

to the ranking member, Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you.

Ms. Payton, several of the witnesses we have spoken to have said

that as far as they knew, Special Counsel Fitzgerald was satisfied

with the results that he received from searches performed by the

White House IT employees. And none of the witnesses was aware

of any plot to obstruct any Department of Justice investigation. We

asked former CIO Carlos Solari about whether Special Counsel

Patrick Fitzgerald was satisfied with the White House production,

and this is what he had to say: ‘‘As far as I know, now, obviously

I didn’t have any first-hand knowledge with him, but through the

attorneys on the White House side who were dealing with that, yes,

otherwise, we would still be busy at it answering questions, or

there would have been questions come back to us that say, we don’t

have the confidence you are providing us with everything we have

asked for. But that wasn’t the case at all.’’

David McCrosky reiterated the same point regarding the Plame

electronics searches on at least three occasions during his interview

when he said they, the DOJ, ‘‘were always asking for more. To my

knowledge, the whole time I was there, we always had everything

they asked for. In fact, I am certain of it. The only thing I know

is that there were no tapes missing. I do know that, and that everything DOJ wanted, we gave them while I was there.’’ McCrosky

continued, ‘‘in everything that they, the DOJ, asked us, we, which

was the White House IT office, gave them. And all the feedback

that I ever got was, thank you, this is a ton of stuff, we appreciate

it. Now, of course, maybe it takes a long time to realize that there

is a big gap in dates. Maybe that is what he is referring to. We

were very concerned to do this right and make sure that he got everything that the DOJ had asked for.’’

John Straub, who was a former director of OA, said of the

searches, ‘‘in nine times out of ten, it did not end up being that

something was missing. It ended up being that we weren’t doing

the search properly or the system wasn’t gathering the right information, or you were searching across two systems, and it would

find hits in one system and wouldn’t find it in another. Then you

go back and refine the search terms and it found the same things.

It wasn’t because there were documents missing.’’

Tim Campen, the former CIO on the Hill at the White House and

Director of OA had the following conversation with the staff. ‘‘Do

you recall any concerns during that time, the whole time that you

were at the White House, these searches weren’t producing all of

the documents that were out there on any given subject?’’ His answer, ‘‘I remember that always, we always asked ourselves that,

are we finding everything. I would ask that question and have debates about it, discussions about it, about the technical parameters

of the searchers and of the accuracy of the billion searches that had

to be created. The general answer was yes, researching everything

we can, and we think we have constructed the right kind of

searches. By the look of the volume of e-mails we are getting, we

are doing something right, because we are producing an awful lot

of this.’’

109

Later Mr. Campen, when asked by the staff, ‘‘so you are not

aware of any evil right-wing plan to obstruct the Justice Department investigation,’’ he replied ‘‘no, no.’’ And specifically, with regard to Fitzgerald, Mr. Campen said ‘‘no, I was always admonished

and directed by White House counsel that this was a serious and

full effort. We were always told that through the spirit of this, we

are complying with this.’’

Ms. Payton, I know you weren’t at the White House during these

searches. But are these statements consistent with the documentation you have reviewed in the course of your duties?

Ms. PAYTON. It is consistent with the documentation, as well as

conversations with the current staff. I have asked them if they

know of any searches we did not satisfy, and other than the one

which we eventually satisfied, the Fitzgerald one, they said they

knew of none. So that is consistent.

Mr. DAVIS OF VIRGINIA. Earlier when we discussed, certainly

with the backups, we have every reason to believe at this point

that we will be able to get the documents we seek, isn’t that correct?

Ms. PAYTON. Yes, sir.

Mr. DAVIS OF VIRGINIA. Let me ask Mr. Stern, is it true that at

least on two occasions, Sandy Berger had access to original,

uninventoried, uncopied documents that he could have removed

from the Archives without detection?

Mr. STERN. I believe yes, he did have access to original documents.

Mr. DAVIS OF VIRGINIA. So we have problems with records preservation at the National Archives, too.

Ms. Payton, could you walk us through the process that you and

your team are undertaking to inventory all the White House e-mail

for each specific day?

Ms. PAYTON. Sure. And I mentioned some of that in my opening

remarks, and I’ll just kind of briefly go over the beginning part of

it and then give you more detail, because I didn’t go through all

the details.

From a technology perspective, we have three phases that we are

undertaking. We are in the midst of phase one right now. That

phase is where we introduced the new technology, where we can

actually read through the personal storage tables that are on the

archive, and we can actually read through, read the name of the

PST and from an inventory perspective, associate the e-mails that

are in that PST with the components and the dates.

We are also undertaking some research to look at weekends and

holidays that may have low volume or zero days, because there

may have been maintenance going on on the weekends. The way

that would work, and this is standard pretty much for exchange,

is if you took mail servers out of rotation to do maintenance on

them for the weekend, what would happen is your mail would be

held. So if it was being serviced Friday night and Saturday and it

didn’t come back online until Sunday, you don’t receive it until

Sunday.

Well, the old tool, as well as the new tool, have a limitation

where they could only track the received date. So it could look like

you have some messages ‘‘missing,’’ and you need the opportunity

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to be able to actually read it at the message level to see the sent

and the received date. So that process is underway.

We are also looking at the network operations logs to see if there

is any documentation around outages as well. And then when we

finish that phase one, we will go through a QA process and share

that with NARA to make sure they are comfortable with our methodology and our findings. Again, since we haven’t gone through the

QA process, I am hesitant to give a lot of details around our findings. But I can give you some trends. We have identified roughly,

somewhere in 10 million or more e-mails than were identified as

part of the 2005 analysis, using the older tools. Those were the best

tools they had at the time, good work horses. I am not sure the

team knew at that time that those tools had those limitations.

In addition, we have been able to work through the whole entire

inventory, not just for the time period in question, because we are

concerned about Presidential transition, we are doing from day one

of exchange all the way through now and will continue to do that.

We have also identified, I think I mentioned it earlier——

Chairman WAXMAN. Ms. Payton, the time has expired.

Ms. PAYTON. Yes, sir. I am sorry. There are two more phases.

Mr. DAVIS OF VIRGINIA. If you could put this back into writing,

I think it would save the committee’s time. But I want to get it on

the record, Mr. Chairman.

Chairman WAXMAN. I understand.

Ms. PAYTON. Yes, because there are two more phases, and the

third phase is actually sitting down with NARA to go over any remaining anomalies.

Chairman WAXMAN. My problem is after you are finished with

your phases, you will probably be out of office. Because this is

going to take a lot of time. The fact of the matter is, a lot of the

staffers mentioned by Mr. Davis in his comments left the White

House before you decided to abort the archiving system in 2006

that had been under development for 3 years, and after you made

that decision, the White House failed to put an archiving system

in place.

To date, the White House still has not installed a new system.

The bottom line is that from 2002 to 2008, the White House has

not had an adequate, functioning e-mail archiving system in place.

And now you have three or four phases to try to correct the problem that has been created.

I will be happy to have you go on, if that is what Mr. Platts

wants. Well, Mr. Platts is not here any longer, but his time has expired.

Mr. Davis, what do you wish to do? You asked the question. May

she submit an answer?

Mr. DAVIS OF VIRGINIA. Yes, you can submit it for the record. But

I think the point is that this is a lengthy process, this is a complicated, lengthy process and it just doesn’t jump out at you. This

is not like a Google search.

Ms. PAYTON. Correct.

Mr. DAVIS OF VIRGINIA. And we have backups in this case that

we can always get. We can get the records if they don’t get it by

a certain time.

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Ms. PAYTON. And Mr. Davis, our early findings indicate that if

we had done a restore based on the older analysis that had been

done, we would have restored days that we have.

Mr. DAVIS OF VIRGINIA. Let me ask you, you are not trying to run

out the clock on the committee, are you?

Ms. PAYTON. No, sir. We want to transition, the OCIO team is

very focused and dedicated on this. I speak for them, I speak for

myself, we are very energized about getting to the bottom of this

and transitioning the records over to NARA. This is something we

want to get done.

Chairman WAXMAN. The record can speak for itself, because a

long time has already gone by without getting this information.

The Archives is concerned about it, Congress is concerned about it,

and you may not be intending to run out the clock, but I do think

you are aware that you don’t have too much time before this administration goes out of office.

Ms. PAYTON. Yes.

Chairman WAXMAN. Mr. Cummings, do you want to ask some

questions?

Mr. CUMMINGS. Yes, I do.

Chairman WAXMAN. Before you begin, we have one item of business to complete. Maybe we can do it quickly. That is the motion

to include in the record the interrogatories by Mr. McDevitt, we

had a bit of a debate earlier, Mr. Davis, do you want to say anything more about that?

Mr. DAVIS OF VIRGINIA. I will yield to Mr. Issa, but I just want

to note that this, your witness that you are relying so much of your

report on was given, I think, an accord that has not been given to

other witnesses that request much of the same thing. We did not

have a chance to cross examine, and we think it would be a different record were that allowed. We just want to put that on the

record.

Chairman WAXMAN. Mr. Issa.

Mr. ISSA. Recognizing I still have 5 minutes of my own time, but

look, you are going to put this in the record, Mr. Chairman. But

it sets a bad precedent to take an unsworn series of statements

that we can’t even ask the witness whether or not those were his

own statements or not. Perhaps in fact they were essentially preagreed answers that quite frankly might be further fleshed out for

accuracy if we had this opportunity.

If the gentleman were not still a full-time Federal employee, and

for some reason was truly resisting, I would have a different attitude. But we bring people in front of this committee at their own

expense often, this would be somebody who would be paid by the

Federal Government to be sitting there today. I really believe that

we are doing an injustice to the long-term well-being of this committee on a bipartisan basis by doing this today.

Chairman WAXMAN. I would like to respond to you, I am concerned about this committee and long-term considerations. As a result, when we asked Mr. McDevitt to come in for an interview, and

he refused, we had a discussion on a bipartisan staff basis what to

do. Because we could have subpoenaed him to come in and answer

questions. Instead, both sides said, let’s send him interrogatories,

and even let the White House review the interrogatories. On that

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basis, he was sent interrogatories, Republican and Democratic staff

had input into those interrogatories. When the Republican staff

saw the answers to the interrogatories, we suddenly got this complaint, well, we didn’t get a chance to cross-examine him, this is

not fair, on and on and on.

I just think that we operated in good faith. We ought to include

the answer to the interrogatories in the record. And the reason

that Mr. McDevitt didn’t want to come in in the first place is because the White House put such strong restrictions on what he

could say that he didn’t feel he could even say what he needed to

say in a deposition. That is how all this came about.

So I would ask the Members to support the motion to allow the

interrogatories to be a part of the record. Are we ready for the

vote?

All those in favor of the motion, say aye.

[Chorus of ayes.]

Chairman WAXMAN. Opposed, no.

[Chorus of noes.]

Chairman WAXMAN. The ayes appear to have it.

Mr. ISSA. Mr. Chairman, reserving the right to question the

quorum, I would just like the record to recognize that although you

have said this was bipartisan, from this particular Member’s viewpoint, and from the staff that I am communicating with, we believe

that it has not been and that this is a form of sandbagging, to deliver it. Recognizing we don’t have the votes, I would not assert the

quorum, but recognizing that this is not with the support of any

Republicans.

Chairman WAXMAN. Well, I accept that, and let me say that I am

going to talk further to both staffs, because we tried to accommodate the Republican staff throughout this whole process. We even

had the Republicans talk to Mr. McDevitt for an hour and a half,

asking him any questions they wanted on Sunday night. So we

have tried to be accommodating.

You are saying to me that your staff on the Republican side does

not feel that is accurate. I am going to pursue that with Mr. Davis,

because we are not trying to sandbag anybody. I am not going to

apologize to anybody, because I don’t feel that we have. But I want

to talk to staffs with Mr. Davis after the hearing is over, because

I want these things not to be partisan, but to get the facts out.

Mr. DAVIS OF VIRGINIA. Let me say to my friend, we have some

EPA witnesses we hope you will give the same accounting to that

you gave to this gentleman. Thank you.

Chairman WAXMAN. The vote has occurred and the Chair has

heard the majority in the affirmative. The Chair then calls the motion approved by the committee, and the interrogatories will be

made part of the record.

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Chairman WAXMAN. Mr. Cummings, you are now recognized for

your 5 minutes.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Mr. Stern, I would like to ask you about your perspective on the

White House’s effort to get to the bottom of the problem of the

missing e-mail. The White House has known about this problem

since 2005, from the time that Archives first learned about it, you

repeatedly tried to get information from the White House, is that

correct?

Mr. STERN. Yes.

Mr. CUMMINGS. Unfortunately the Archives wants to know, just

like we do, what caused this problem and big it is, and what the

White House plans to do about it. Is that an accurate statement?

Mr. STERN. Yes.

Mr. CUMMINGS. The problem is, each time the Archives asks for

an explanation, the White House promises that they have almost

finished diagnosing the problem. I call it paralysis by diagnosis.

The White House says, just give us a little more time, and we will

tell you the results of our review. But when the deadline arrives,

the White House kicks the can farther down the road.

For example, in 2007, you met with the White House officials to

discuss the missing e-mails. The White House said they would tell

you the full extent of the problem in 1 month. They didn’t give you

the details in June, did they?

Mr. STERN. No.

Mr. CUMMINGS. And at the end of June, the White House said

they would get you your results by the end of the summer. They

didn’t give you their results at the end of the summer, did they?

Mr. STERN. No.

Mr. CUMMINGS. In October, going further down this road, the

White House said they would have the results in 6 weeks. They

didn’t give you the results in November, did they?

Mr. STERN. No.

Mr. CUMMINGS. In fact, your own staff recognized the obvious

pattern. I just want to read from a summary your staff prepared

of a meeting between Archives and the White House staff on October 11, 2007. I want you to pay close attention to this, Ms. Payton,

since you said that you all were not running out the clock. Well,

I call it rope-a-doping. And it states this. This is the statement.

‘‘We should note that this process was supposed to be completed by

the end of June, then the end of September and the end of October

in our previous briefings. They are now saying that it will take

about 6 weeks of work to have any results.’’

Now, Mr. Stern, it is now February 2008. Matter of fact, we are

getting ready to go into March, and the White House still has not

provided you those results, have they?

Mr. STERN. No.

Mr. CUMMINGS. Ms. Payton, it is your turn. The White House has

known about this e-mail archiving problem for almost 21⁄2 years.

Yet despite repeated inquiries from Archives and this committee,

you still have not even produced a current inventory of the White

House e-mails, is that correct?

Ms. PAYTON. We——

Mr. CUMMINGS. Have you produced an inventory?

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Ms. PAYTON. We have one that has not been through a quality

assurance process yet for us to share with NARA.

Mr. CUMMINGS. So it hasn’t been, in other words, it has been created but nobody has seen it beyond——

Ms. PAYTON. We need to go through a quality assurance process

before we share the results.

Mr. CUMMINGS. And when is that quality assurance process supposed to be completed? Do you have any idea?

Ms. PAYTON. First, we need to finish all the work in phase one.

So we have a preliminary inventory, we are still doing some work

in phase one. Then we will be doing our quality assurance analysis.

Our target, because the team and I sat down and went over this,

this has been a much more complex process, and if NARA will remember, when we sat down in the summer, the team very optimistically said we wanted it to be done by this timeframe and estimated that it would be. It has proved to be a lot more complex for

a variety of reasons. So it has taken us longer, because we are taking a lot of care, and it is bigger than we thought it was going to

be.

Mr. CUMMINGS. Well, certainly we want you to take care.

Ms. PAYTON. The team and I sat down and we talked about our

timeframe as to when we would sit down with NARA and have

completed phase one and phase two. We are targeting the summer

that we would actually sit down with them, we would have completed phase one, phase two and have all the remaining, if there

are any anomalies left around low volume days or zero days, we

would go over that with them.

Mr. CUMMINGS. And what does summer mean? Give me a date.

Ms. PAYTON. In the June, July timeframe.

Mr. CUMMINGS. All right.

Ms. PAYTON. So the first phase, as we complete it and QA it, we

are going to sit down and go over with NARA. The second phase,

it will be the same thing, we will do a QA, go over it with NARA

and then we will sit down and talk about if any remaining anomalies exist, what type of recovery effort needs to be done.

Mr. CUMMINGS. I just want you to clear up one thing real quick.

You said in your opening statement that after phase two of your

study, if you found e-mails were missing, you would consult with

Archives and restore from backup tapes. Can you confirm that this

will be done before the end of this administration?

Ms. PAYTON. I cannot confirm that, and I have read the GAO report which has said that the previous administration, it took longer

than the administration. We hope with newer technology, but I just

don’t know the size of the recovery effort to give you an estimate

to tell you whether or not it will be completed.

Mr. CUMMINGS. We need a sense of urgency here.

Ms. PAYTON. We absolutely have it, sir.

Mr. CUMMINGS. We do?

Ms. PAYTON. Yes.

Mr. CUMMINGS. Oh.

Chairman WAXMAN. Will the gentleman yield to me?

Mr. CUMMINGS. Yes.

Chairman WAXMAN. Over a year ago you got a letter from Dr.

Weinstein, saying you have to get going with this thing, it is going

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to take a lot of time. So you have the possibility of going to the

backup tapes and all of that. But he said it is going to take at least

a year for you to get all this information. And still, we will have

nothing on the RNC tapes where there are backups in boxes. So

I just must tell you that I find it hard to believe that you have any

real sense of urgency when a whole year has been frittered away.

Ms. PAYTON. We have not frittered it away. We really have improved the overall inventory process, and it is something that will

benefit future administrations, as well as if we had undertaken a

recovery effort prior to doing this work. We may have recovered

days we didn’t need to, as well as we might not have recovered

days we might need to.

Chairman WAXMAN. Well, this all remains to be seen, but I appreciate your position.

Mr. Issa, you were recognized to pursue questions, but it was

under the 15 minutes and Mr. Davis asked, so you are entitled to

5 minutes and I will recognize you for that purpose.

Mr. ISSA. Thank you, Mr. Chairman.

I am going to followup where the chairman left off. Mr. McDevitt

is not here, and that is unfortunate, because there are things that

I am confused about, and Ms. Payton, I am hoping you can

straighten it out for us. He was the chief information officer while

he was at the White House, is that right?

Ms. PAYTON. Excuse me?

Mr. ISSA. Mr. McDevitt was employed by the Office of the Chief

Information Officer and his primary responsibility was to manage

the electronic records systems of the White House, is that right?

Ms. PAYTON. He was to manage the new archiving platform, that

is correct.

Mr. ISSA. But essentially, he was the guy that used the tool that

wouldn’t see any e-mail box that had more than 32,000 e-mails in

it, right? So the tool that failed was his tool that he used earlier,

is that right?

Ms. PAYTON. I don’t believe that tool reported up through Steve.

But I am not sure.

Mr. ISSA. But at the time that tool was in use, it was a flawed

tool, and that was more than 18 months ago. So when he said, for

example, that there are 400 days of lost information, that is wrong,

because he has been gone for 18 months and doesn’t know. When

he says that e-mails could be deleted, he apparently doesn’t know

that there is a tracking log in the Microsoft operating system, so

he doesn’t know that you can’t delete with impunity, that it is

trackable.

He obviously doesn’t know that the tool that you used earlier was

flawed and the tool you are using now is at least better. We will

never know if it is flawed until a later generation. But it catches

many of the lost documents that the previous tool didn’t. Is that

roughly correct?

Ms. PAYTON. That is roughly correct, yes.

Mr. ISSA. I want to hit a couple of other points. And I don’t want

to delve too much into software, but I think it is fair that we recognize that software moves on and that archiving in the digital age

is not as easy as it might seem to the public, and hopefully this

hearing is good for the public to understand.

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The Clinton administration used Lotus Notes, right?

Ms. PAYTON. Yes.

Mr. ISSA. Lotus Notes no longer exists, right? It is no longer supported.

Ms. PAYTON. It is no longer supported. Some groups may still use

it, but it is no longer supported.

Mr. ISSA. I wouldn’t want to do business with somebody still

using Lotus Notes or still using wooden wagon wheels. If I understand correctly, though, certainly I checked with the House of Representatives, we can no longer support it for Members who want

to stay on it. I assume that the robust tool you are now using to

go through and recapture the PSTs deconflict the fact that PSTs

often have multiple PSTs and you don’t want to have 40,000 copies

of the same e-mail, so you have to take care of the duplicates.

Those tools didn’t exist for Lotus Notes, in all likelihood, because

it was on its way out by the time the Clinton administration was

on its way out, is that roughly correct?

Ms. PAYTON. My understanding is that the way, because they

have a limited de-dupe process for ARMS, and it had to be built.

That is my understanding.

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Mr. ISSA. OK. So here we have a situation where the Clinton administration is on a platform that has to be phased out. Simply,

they lost the war of who is going to supply e-mails. A period of time

goes on in which yes, we are dealing, to Dr. Weinstein’s concern,

with getting good archives, but we are also dealing with the fact

that I can’t play my Beta Max tapes any more, either, and I can’t

seem to find anybody who has a Beta Max player any more. And

in a matter of a couple of years, it is going to be hard for me to

play my high definition DVDs that were on the platform that now

is being phased out.

This is one of the challenges that I gather, for Dr. Weinstein,

that you face that is going to be difficult for you as an archivist

going into the future, no matter who is in the White House and no

matter how hard they try, is that correct?

Mr. WEINSTEIN. Yes, sir.

Mr. ISSA. OK. So certainly, the House of Representatives needs

to begin making sure you are funded, and that is part of what we

do in oversight, fund it to deal with ever-evolving technologies

where archiving isn’t just putting them away, it is being able to retrieve it, is that right?

Mr. WEINSTEIN. And to migrate where necessary.

Mr. ISSA. OK. I am deeply disappointed, Mr. Chairman, that we

do have a split in our otherwise bipartisan effort to deal with the

archiving and preservation of our Nation’s records, and particularly

the office of the President. I am sorry that as of today, Mr.

McDevitt is not made available to us. I would hope that in spite

of the vote that occurred that you would reconsider and allow for

us to bring up some of these points with a gentleman who I believe

is at least misguided as to the tools, capability and ongoing work

by the White House as to the White House’s responsibility.

Last but not least, Mr. Chairman, I think what you are doing is

going to prove in retrospect to be shameful as to the RNC, that in

fact, if we have no reason to believe that private correspondence

done outside of the White House is inappropriate and are not willing to do so up front, we should not have members of the White

House administration here in order to ask them questions about

the RNC that is not within their purview.

Chairman WAXMAN. The gentleman’s time has expired. I want to

recognize the last questioner, I believe.

But we have a lot of evidence that the RNC e-mails involve Government responsibility, because a good number of the e-mails from

Karl Rove’s account were to Government agencies. We asked the

RNC for the number of dot gov e-mails from his e-mail site. And

we saw that a good number of them were done.

You want to assume otherwise. I am not surprised at the partisanship. I have come to expect it. But I would hope that something like this would not engender the partisanship that we have

seen. The Republicans are attacking Mr. McDevitt, who worked at

the Republican White House, you are attacking everybody else and

you don’t believe the truth about the RNC e-mails. Well, we will

be glad to show you the documentation that we have, but we have

a vote on, so I want Mr. Burton to have his full 5 minutes, and

he is recognized at this time.

Mr. BURTON. Thank you, Mr. Chairman. I yield to my colleague.

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Mr. ISSA. And I will only use one of his minutes, but Mr. Chairman, although you spoke on time that doesn’t exist under the rules

of this committee, I do want to continue working on a bipartisan

basis. This White House will close up and we will be looking to preserve all the records that fall within the act. Today, I am afraid

we did not move further toward it. Candidly, Mr. Chairman, constantly asking about Karl Rove, Karl Rove, Karl Rove, who clearly

had a reason to be involved in many things which would have been

inappropriate begs the question of whether or not we have any real

evidence other than ‘‘we didn’t find e-mail traffic at the White

House, therefore they must have been doing Government work on

private sites.’’

Mr. Chairman, I have to tell you, I have little doubt that if we

asked for the staff members of this committee on both sides of the

aisle to provide to us all of their outside information that we would

in fact learn a great deal. Mr. Chairman, we don’t have that right

within this committee, and we should not try to create it.

I yield back to the gentleman.

Mr. BURTON. Mr. Chairman, we have a vote on. I yield my time.

Chairman WAXMAN. Thank you. I just want to make a closing

comment and will afford the other side an opportunity for a closing

comment.

The Congress is not required under any law to keep our e-mails

the way the White House has had that requirement under the

Presidential Records Act. I think it is appropriate and I hope all

Members of Congress would think it is appropriate that law be adhered to, whether it is this White House or any other White House.

I must say, what I have learned today, which is, this hearing is

about this Presidential Records Act, I am quite disturbed. We have

been asking questions about what happened to these White House

e-mails that were sent through the RNC e-mail accounts, including

messages sent by key advisors to the President during decisive periods of the administration. We have established there are two

boxes of backup tapes stored at the RNC. These backup tapes may

contain the missing e-mails. Dr. Weinstein, the archivist, has said

that it is essential that these records be restored.

Yet we have learned there appears there is no effort, no effort

to recover the missing RNC e-mails. And the only e-mails that we

want are those that relate to Government business. All the evidence we have received says that these e-mails are a vital part of

the historical record of this White House. Yet the White House has

not asked the RNC to reconstruct the backup tapes, and it has not

asked for the backup tapes so they could reconstruct them themselves.

The effect is that the historical record will have major holes. This

may save the White House from embarrassment, but it is an enormous disservice to the American people for the historical record.

While there has been more effort to recover the missing e-mails

from the White House, I am glad to hear that Ms. Payton has been

working hard to recover these e-mails, and I am glad she has found

e-mails that were previously missing. But in this area, too, I continue to have grave concerns.

There is a certain way to recover the missing e-mails; that is to

restore the backup tapes. The Archives have been asking the White

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House to do this for nearly a year, but the White House won’t do

this. The result is that it is impossible to have confidence in what

the White House is doing. We know from the Plame case that the

only way the White House could recover key e-mails was using the

backup tapes. But the White House is resisting this practical step.

It is important to remember what this hearing is about. It is not

about Sandy Berger, it is not about a California waiver, it is not

about whether Clinton did it or didn’t do whatever. It is important

to know that this hearing is about getting a complete record of

what happened inside the Bush White House. This will never occur

unless the White House recovers the deleted RNC e-mails. But we

learned today that this is not happening. It is a major disappointment and I think a clear violation of the law.

Mr. Davis is not here.

Mr. ISSA. He left me to close, Mr. Chairman.

Chairman WAXMAN. OK, the gentleman is recognized.

Mr. ISSA. Mr. Chairman, I want to close in the most positive and

bipartisan way possible, because I believe that there was a great

deal of good done here. I think we learned as a committee that the

statute requires adequate, according to the Archivist, records. We

learned from Dr. Weinstein that in fact, we are going to, even

though we are not at a 10 day that regularly, at the end of an administration, that there is this going from a 2 or a 3 up to a 10

in the gaining of records and that there was a high confidence that

we would get to that 10 by the inauguration of the next President.

I personally have no doubt that Ms. Payton or a successor will

be in fact still employed on those last few things that may need to

be done in a digital age. But I am also pleased to see the skill and

the understanding, although expressed in phase, clearly that there

is a process necessary to deliver all the information that is required

by the Archivist and requested by this Congress, and that we will

get there, but we will get there as close to or below the $15 million

fee that we could spend if we simply threw everything at it.

So while I share with the chairman a disappointment that

weeks, months and even a year can go by in this process, I certainly will hope very much that we all understand that it can take

that long to get this information, and that this is not something

that is devious, at least as far as I can see, that in fact, Ms.

Payton, in good faith, is working toward that and she has the confidence of the Archivist that progress is being made. I think that

is what we can take away from this hearing on a bipartisan basis.

I yield back.

Chairman WAXMAN. That concludes our business for today. I

thank all the witnesses for your very generous time here with us.

The committee stands adjourned.

[Whereupon, at 1:15 p.m., the committee was adjourned.]

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