MISSING WHITE HOUSE E-MAILS:

MISMANAGEMENT OF SUBPOENAED RECORDS

HEARINGS

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MARCH 23, MARCH 30, MAY 3, AND MAY 4, 2000

Serial No. 106–179

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MISSING WHITE HOUSE E-MAILS:

MISMANAGEMENT OF SUBPOENAED RECORDS

HEARINGS

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MARCH 23, MARCH 30, MAY 3, AND MAY 4, 2000

Serial No. 106–179

Printed for the use of the Committee on Government Reform

(

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

http://www.house.gov/reform

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

LISA SMITH ARAFUNE, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on:

March 23, 2000 ................................................................................................. 1

March 30, 2000 ................................................................................................. 219

May 3, 2000 ....................................................................................................... 485

May 4, 2000 ....................................................................................................... 659

Statement of:

Heissner, Karl, branch chief for systems integration and development,

Executive Office of the President, Office of Administration ...................... 511

Lindsay, Mark, assistant to the President and director of White House

Management and Administration; and Laura (Crabtree) Callahan,

Chief Information Officer, Department of Labor ........................................ 137

Lyle, Michael, director, Executive Office of the President, Office of Administration ................................................................................................... 514

Mills, Cheryl ..................................................................................................... 665

Nolan, Beth, chief counsel to the President; and Dimitri Nionakis, associate counsel to the President ......................................................................... 769

Nolan, Beth, counsel to the President; and Robert Raben, Assistant Attorney General for Legislative Affairs ............................................................. 262

Rabin, Robert, Assistant Attorney General for Legislative Affairs .............. 627

Ruff, Charles ..................................................................................................... 664

Salim, Yiman, Northrop Grumman Software developer, Lotus Notes

Group; Betty Lambuth, Northrop Grumman manager, former member

of the Lotus Notes Group, accompanied by Larry Klayman, counsel,

and Tom Fitton, counsel; Robert Haas, Northrop Grumman systems

administrator, Lotus Notes Group; Daniel ‘‘Tony’’ Barry, computer specialist, Executive Office of the President/Office of Administration, accompanied by John Harden Young, counsel; Steve Hawkins, Northrop

Grumman program manager; John Spriggs, Northrop Grumman senior

engineer for electronic mail; and Sandra Golas, Northrop Grumman

senior software engineer, Lotus Notes Group ............................................ 22

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

Barr, Hon. Bob, a Representative in Congress from the State of Georgia:

Article dated March 24, 2000 ................................................................... 453

Cheryl Mills subpoena .............................................................................. 706

Exhibit 6 ..................................................................................................... 560

Exhibit 7 ..................................................................................................... 108

Exhibit 60 ................................................................................................... 465

Exhibits 3 and 4 ........................................................................................ 114

Letter dated December 8, 1998 ................................................................ 407

New York Times article ............................................................................ 456

Statement dated January 30, 1998 .......................................................... 106

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Exchange of letters .................................................................................... 6

Exhibit 48 ................................................................................................... 672

Exhibit 81 ................................................................................................... 490

Exhibit 82 ................................................................................................... 518

Exhibit 92 ................................................................................................... 500

Prepared statement of ........................................................................... 225, 505

Chenoweth-Hage, Hon. Helen, a Representative in Congress from the

State of Idaho: ...............................................................................................

Exhibit 19 ................................................................................................... 77

Exhibit 23 ................................................................................................... 80

Exhibit 47 ................................................................................................... 82

Page

IV

Letters, statements, etc., submitted for the record by—Continued

Chenoweth-Hage, Hon. Helen, a Representative in Congress from the

State of Idaho—Continued

Exhibit 140 ................................................................................................. 728

Exhibit 141 ................................................................................................. 735

Exhibit 142 ................................................................................................. 737

Exhibit 143 ................................................................................................. 739

Ford, Hon. Harold E., Jr., a Representative in Congress from the State

of Tennessee:

Letter dated May 6, 1999 ......................................................................... 691

The Hill newspaper article ....................................................................... 669

Haas, Robert, Northrop Grumman systems administrator, Lotus Notes

Group, prepared statement of ...................................................................... 36

Heissner, Karl, branch chief for systems integration and development,

Executive Office of the President, Office of Administration, prepared

statement of ................................................................................................... 512

Lambuth, Betty, Northrop Grumman manager, former member of the

Lotus Notes Group, prepared statement of ................................................ 32

LaTourette, Hon. Steven C., a Representative in Congress from the State

of Ohio:

Exhibit 56 ................................................................................................... 52

Exhibit 80 ................................................................................................... 431

Lindsay, Mark, assistant to the President and director of White House

Management and Administration, prepared statement of ........................ 142

Mica, Hon. John L., a Representative in Congress from the State of

Florida:

Exhibit GR–2 ............................................................................................. 123

Letter dated October 6, 2000 .................................................................... 397

Nolan, Beth, counsel to the President, prepared statement of ..................... 265

Rabin, Robert, Assistant Attorney General for Legislative Affairs, prepared statement of ........................................................................................ 631

Salim, Yiman, Northrop Grumman Software developer, Lotus Notes

Group, prepared statement of ...................................................................... 25

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut:

Exhibit 1 ..................................................................................................... 601

Exhibit 61 ................................................................................................... 419

Exhibit 62 ................................................................................................... 282

Exhibit 63 ................................................................................................... 603

Exhibit 139 ................................................................................................. 788

Waxman, Hon. Henry A., a Representative in Congress from the State

of California:

Exhibits 132 and 133 ................................................................................ 588

Letter dated May 3, 2000 ......................................................................... 782

Minority Staff Report ................................................................................ 363

Prepared statement of Paulette Cichon ................................................... 258

Wilson, James C., chief counsel, Committee on Government Reform:

Exhibit 84 ................................................................................................... 570

Exhibit 94 ................................................................................................... 574

Exhibit 134 ................................................................................................. 576

Letter dated May 19, 2000 ....................................................................... 639

(1)

MISSING WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS—

DAY ONE

THURSDAY, MARCH 23, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

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

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Morella, Horn, Mica, Davis of

Virginia, Souder, Scarborough, LaTourette, Barr, Hutchinson,

Biggert, Ose, Chenoweth-Hage, Waxman, Mink, Maloney, Norton,

Cummings, Kucinich, and Davis of Illinois.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Mark

Corallo, director of communications; Pablo E. Carrillo and M. Scott

Billingsley, counsels; Jason Foster and Kimberly A. Reed, investigative counsels; Kristi Remington, senior counsel; Robert Briggs,

deputy chief clerk; Robin Butler, office manager; Leneal Scott, computer systems manager; Lisa Smith Arafune, chief clerk; Maria

Tamburri, assistant to chief counsel; Corinne Zaccagnini, systems

administrator; Caroline Katzin, professional staff member; Phil

Schiliro, minority staff director; Phil Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Kristin

Amerling, minority deputy chief counsel; Cherri Branson, Jon

Bouker, Paul Weinberger, and Michael Yang, minority counsels;

Ellen Rayner, minority chief clerk; and Jean Gosa and Earley

Green, minority assistant clerk.

Mr. BURTON. A quorum being present, the Committee on Government Reform will come to order.

I ask unanimous consent that all Members’ and witnesses’ written opening statements be included in the record, and without objection, so ordered.

I ask unanimous consent that all articles, exhibits, and extraneous or tabular material referred to be included in the record, and

without objection, so ordered.

I also ask unanimous consent that a set of documents which may

be used as exhibits in today’s hearings, which have been shared

with the minority staff, be included in the record.

Mr. WAXMAN. Reserving the right to object.

Mr. BURTON. The gentleman will state his reservation.

2

Mr. WAXMAN. Mr. Chairman, we’re not going to object to this,

but I understand that the staffs are still going through these documents to be sure that there are redactions that are going to be important for privacy reasons, so, if the gentleman would permit, I’d

like to ask if he would amend his unanimous consent request to

have these documents released after the staffs have had an opportunity to review them for redaction purposes.

Mr. BURTON. I think that that is in order, and without objection

we will do that. In fact, I think we have ‘‘after being reviewed for

redactions’’ in the statement, so I guess there is no—without objection, so ordered.

I also ask unanimous consent that questioning in this matter

proceed under clause 2(j)(2) of House rule 11 and committee rule

14 in which the chairmen and ranking minority members allocate

time to members of the committee as they deem appropriate for extended questioning, not to exceed 60 minutes, equally divided between the majority and the minority, and without objection, so ordered.

Today we are meeting to hear testimony about the White House’s

failure to produce documents to the committee. As I’m sure everyone understands by now, there was a computer glitch, an error. As

a result, incoming e-mails at the White House weren’t recorded for

a 21⁄2 year period. They weren’t searched in response to our subpoenas. They weren’t searched in response to Justice Department’s

subpoenas. They weren’t searched in response to the independent

counsel’s subpoenas.

Now, some might say, ‘‘So what? An error was made. What’s the

big deal?’’ That’s the question I want to address in my opening

statement.

The big deal is not that a computer technician made a mistake.

Mistakes happen. They happen in my office and they happen in

every office. The big deal is how the White House reacted to it.

They basically had two choices. They could face up to the problem, tell the Justice Department and Congress what happened, and

get it fixed, or they could throw a blanket over the whole problem,

ignore it, and hope nobody would find out.

From the interviews we’ve conducted and the correspondence we

have received, it looks like they chose to cover it up. I hope that

by the end of this hearing we will be able to make a better judgment.

Before I go any further into this e-mail problem, I want to put

this issue into perspective. This isn’t the first time that this committee has had problems with cooperation from the White House.

When we began our investigation into illegal fundraising in January 1997, we sent the White House a document request. They ignored it.

In March 1997, we sent them a subpoena. They refused to honor

it.

In May 1997, we came within days of holding the White House

counsel, Charles Ruff, in contempt of Congress for not producing

documents. Only then did they comply.

In June, Mr. Ruff sent us a letter certifying that they had complied with our subpoena. Then, in October 1997, somebody found

out about the White House videotapes. Ten months after our origiVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
3

nal request, a bunch of red-faced White House lawyers had to turn

over several hundred tapes of the President at controversial fundraising events.

Their game plan was very clear: stall, delay, run out the clock.

And it wasn’t just the White House.

The day after we approved our interim report, 2 years after we

started our investigation, 10 boxes of Democrat National Committee documents magically appeared on our doorstep.

So, as you can see, there is a history here. And, by the way, it

didn’t start with me. Before me, Chairman Clinger had exactly the

same experience.

Two-and-a-half years of e-mails—let’s turn our focus back to the

e-mails. A group of Northrop Grumman employees runs the White

House e-mail system. In May or June 1998, they realized that they

had a problem. A server was mislabeled. Two-and-a-half years

worth of incoming e-mails were not properly preserved. They

weren’t searched when subpoenas came in.

White House staff was informed. On Monday, June 15th, two

White House staffers called them into a meeting. We have interviewed the Northrop Grumman employees who were at that meeting. It was 21 months ago. They don’t remember every detail, as

you might expect. Some remember one part of the conversation,

some remembered the other parts of the conversation, but their accounts are basically consistent.

When the interviews were finished, two important things

emerged about that meeting: first, they were all told to keep this

problem secret; second, some felt intimidated. One Northrop Grumman contractor recalls being told that there was a ‘‘jail cell with

his name on it’’ if he told anyone. One woman was afraid that her

security clearance would be yanked and she would never be able

to work again. Another woman refused to tell her boss what she

was working on. She was almost fired. She told her boss, ‘‘I’d rather be insubordinate than go to jail.’’

They held secret meetings about the problem at a park and at

a Starbuck’s Coffee place so they would not be detected.

These Northrop Grumman contractors are here today, and I appreciate their being here today. They are going to testify on the

first panel. Obviously, this is going to be uncomfortable for them.

They are here under subpoena. They are not here because they

want to be. They are here because they have to be.

To each of you, I’m very sorry you are put in this position, but

it is important that we get your views and what happened on the

record.

I also want to thank the Northrop Grumman Corp. and their attorneys. They have been very cooperative. They have given us documents, they have made employees available for interviews, and

they have been very helpful.

Why the secrecy by the White House? Why was it so important

to keep this under wraps?

There were two White House officials involved in the meeting.

Laura Crabtree is one, Mark Lindsay is the other. We tried to

interview them. They declined to talk to us. We have some pretty

basic questions to ask.

4

Why was it so important that this information be kept secret?

What are their accounts with the meeting with the Northrop

Grumman employees? Who did they talk to when they found out

about the problem?

They have both been subpoenaed, and they are scheduled to testify on the second panel. I’m sorry they refused to talk to us, but

we have questions and we’ll ask them today.

Beth Nolan, the White House counsel, will testify on the third

panel. She wasn’t the White House counsel in 1998, when this

problem came to light. She took the job last summer. Regardless

of who was the White House counsel, we have a serious issue to

deal with. The White House counsel’s office has known since some

time in 1998 that they were not in compliance with subpoenas from

us, the Justice Department, and the independent counsel.

They were not in compliance with our subpoena in the illegal

fundraising investigation. This computer problem began in the

summer of 1996. The second half of 1996 was a critical time period

during this scandal. We were never informed.

They were not in compliance with our subpoena and the investigation of why the President freed 16 Puerto Rican terrorists. We

were never informed.

Let me read a passage of a letter we received from the White

House counsel’s office on October 27, 1999. This was over a year

after the e-mail problem was discovered.

‘‘We have been in the process of searching archived e-mails for

materials responsive to the committee’s subpoena. Enclosed, please

find responsive documents.’’

Now, how could they give us all the responsive documents if they

knew the e-mails were there but they hadn’t gone through them?

They were not in compliance with our subpoena in the Waco investigation. We were never informed. Let me read a passage from

a December 3, 1999, letter.

‘‘Due to the number of requests for information from investigative bodies, the search of archived e-mail messages has taken

longer than expected. I anticipate that we should complete the

search by the end of next week. If we locate any additional responsive materials, we will promptly provide them to the committee.’’

And yet, all of these e-mails that they knew about, hundreds of

thousands, possibly, were not reviewed.

It is pretty clear that if we didn’t find out about this problem

independently, we were never going to be told by the White House,

nor was the independent counsel or people at the Justice Department. Now, that’s a big deal. Complying with subpoenas is not optional; it’s mandatory. The White House counsel’s office has an obligation to comply. If they can’t, they have an obligation to tell us

why.

And it’s not like we inundated the White House with subpoenas.

Not too long ago, a White House spokesman told a bunch of reporters that we had sent them something like 700 subpoenas. Last

year, I sent the White House a grand total of two subpoenas, two.

And it’s not just us. The White House received subpoenas from

the Senate, they received subpoenas from the independent counsels, they received subpoenas from the Justice Department. Were

5

other people informed that hundreds of thousands of e-mails were

not reviewed?

These are the issues that we want to raise today with Ms. Nolan.

Finally, we have a Justice Department witness appearing with

Ms. Nolan, Robert Raben, the Assistant Attorney General for Legislative Affairs. As everyone knows, we have been following the

Justice Department very closely. We have been watching every step

of the way since the Attorney General refused to appoint an independent counsel in the campaign fundraising investigation.

What we have seen from the Justice Department has been very

discouraging. A search warrant for Charlie Trie’s home was

quashed. The FBI wanted to go search his home and go through

its files because they thought some were being destroyed; yet, that

search warrant was quashed by the leaders of the Justice Department, including Janet Reno.

The President was not questioned about foreign money connections. The Vice President was not questioned about the Hsi Lai

Temple or foreign money connections. Democrats get lighter sentences when Republicans get the book thrown at them.

When we interviewed the Northrop Grumman employees, we realized that no one had been questioned by the Justice Department

about the missing e-mails. That was March the 7th. This whole

issue had been on the front page of the newspaper. So I wrote a

letter to the Attorney General. I asked them why they weren’t

doing anything. It wasn’t until after they got my letter that the

Justice Department and the Attorney General contacted the first

witness. Is that the way the Justice Department works? Do they

wait until we are on to them and then they do something about it?

One thing that is of great concern to us is that the Justice Department was on both sides of this issue. Justice Department lawyers are representing the White House in civil suits over the matter. They appear to be working with the White House to delay production of these e-mails. At the same time, the Campaign Finance

Task Force should be trying to get them.

At this point, I don’t think anyone has any idea what is in these

e-mails, but I get the impression that the Justice Department really isn’t all that interested.

When the Attorney General found out about the missing Waco

tapes, she sent U.S. Marshals to seize them from the FBI and

Louis Freeh. Now it looks like the White House hasn’t complied

with the Justice Department’s subpoenas, and nobody even asks

about them until I sent them a letter. I wonder why they didn’t

send the U.S. Marshals over there like they did with the FBI?

That concludes my remarks, and I ask unanimous consent that

my two letters to the Attorney General be entered into the record.

Without objection, so ordered.

I’ve also exchanged letters with the White House counsel, Ms.

Nolan, and I ask unanimous consent to enter those in the record,

and without objection, so ordered.

[The information referred to follows:]

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

Mr. BURTON. I will now yield to Mr. Waxman for his opening

statements, then we will move forward with the first panel.

Mr. WAXMAN. Mr. Chairman, I am pleased you are holding today’s hearing. It will provide us an opportunity to explore whether

there was any wrongdoing in the attempt to coordinate the automated records management system, known as the ARMS system,

with the Lotus e-mail network.

We are all aware that during the past few years many false and

reckless accusations have been made about this administration and

officials that work within this administration. We should not repeat those mistakes today. Instead, in evaluating the ARMS-Lotus

interface, we must investigate whether certain acts were the result

of sinister motives or simply routine mistakes.

Serious accusations, some involving potential criminal conduct,

have already been made about the ARMS-Lotus interface, so it is

essential that we do our best to clarify the record and understand

the facts, and then let the facts lead us to conclusions, rather than

start with conclusions and then find out if the facts support those

conclusions.

We have already learned, for instance, that no one in the Clinton

administration ever suggested that specific e-mails or categories of

e-mails be excluded from the ARMS system. That’s a fact.

We have also learned that no one in the Clinton administration

designed the system or had any role in creating the ARMS-Lotus

interface or the interface defect, and that’s a fact.

Moreover, we know that no one in the Clinton White House even

knew before June 1998, that some e-mails were being excluded

from the ARMS-Lotus interface, and consequently not being submitted to Congress or the Department of Justice.

What else do we know?

We also have learned that the White House has provided Congress with over 7,000 e-mails pursuant to congressional requests.

They have given us 7,000 e-mails, and some of those e-mails were

embarrassing to the White House, yet they submitted those emails.

Some of these e-mails have been repeatedly used by the chairman and other Republican leaders as evidence of White House

wrongdoing. The production of those e-mails would seemingly put

to rest the question that the White House was trying to keep damaging information from the Congress. If they were trying to do

that, you wonder why they submitted e-mails among the 7,000 emails that have been used against them.

Well, by the end of today—and this may be a long day’s hearing,

but it is an important one—we will be in a better position to answer three remaining questions.

First, did any White House employee make any improper threat

to any of the contract or subcontract employees of Northrop Grumman?

Second, did anyone at the White House try to impede the efforts

to fix the problem created by a contract employee?

And, finally, why didn’t the White House notify this committee

and other investigators when the ARMS-Lotus interface problem

was discovered?

21

These are important questions, and I hope we will get answers

to them.

We will likely receive conflicting testimony on whether threats

were made, so we will have to evaluate the credibility of the witnesses on this point. We will also have to evaluate what involvement, if any, the President, the Vice President, and other senior

White House officials may have had with this issue.

From what we know now, however, it appears unlikely that anyone at the White House tried to obstruct efforts to repair the

ARMS-Lotus interface, and I believe that Beth Nolan, who will testify at the end of today’s hearing, may have a reasonable explanation for the delay in the White House’s notification of Congress

about the ARMS-Lotus interface problem.

I look forward to listening to today’s witnesses. If it appears that

any wrongdoing has occurred regarding the ARMS-Lotus interface,

we should take appropriate action.

By the same token, however, if we should also be sure, in finding

the facts, that there is a reason to correct the record if there is no

evidence of wrongdoing, I hope that action will be taken, as well.

Let’s let the facts speak for themselves. Let’s try to find the facts

as best we can. Where conflicting testimony may be leading us in

different directions, let us try to keep to this issue of the ARMSLotus interface to understand what, if anything, justifies a congressional hearing and leads us to facts that will be useful in our ongoing investigation.

I yield back the balance of my time.

Mr. BURTON. Thank you, Mr. Waxman.

I understand a vote has been called on the floor. I want to apologize to our first panel, but, in order to have consistency in the

hearing, I think probably we ought to break real quickly for a vote

and ask all the Members to get back as quickly as possible so we

can get on with this, so we will stand in recess and call the gavel.

[Recess.]

Mr. BURTON. We will now welcome our first panel to the witness

table: Steve Hawkins, Robert Haas, Betty Lambuth, Sandra Golas,

Yiman Salim, John Spriggs, and Daniel Barry.

Would you please stand and raise your right hands, please?

[Witnesses sworn.]

Mr. BURTON. First of all, I want to restate that I know that you

would probably be rather playing golf or working or doing something else today. This is a very important hearing, and we do appreciate your cooperation and in your being as factual as is humanly possible.

Do any of you have opening statements you would like to make?

Ms. Salim, did you have an opening statement?

Ms. SALIM. Yes, sir.

Mr. BURTON. OK. You are recognized. Please pull the microphone

as close to you as possible. Thank you very much.

22

STATEMENTS OF YIMAN SALIM, NORTHROP GRUMMAN SOFTWARE DEVELOPER, LOTUS NOTES GROUP; BETTY LAMBUTH,

NORTHROP GRUMMAN MANAGER, FORMER MEMBER OF

THE LOTUS NOTES GROUP, ACCOMPANIED BY LARRY

KLAYMAN, COUNSEL, AND TOM FITTON; ROBERT HAAS, NORTHROP GRUMMAN SYSTEMS ADMINISTRATOR, LOTUS

NOTES GROUP; DANIEL ‘‘TONY’’ BARRY, COMPUTER SPECIALIST, EXECUTIVE OFFICE OF THE PRESIDENT/OFFICE OF

ADMINISTRATION, ACCOMPANIED BY JOHN HARDEN

YOUNG, COUNSEL; STEVE HAWKINS, NORTHROP GRUMMAN

PROGRAM MANAGER; JOHN SPRIGGS, NORTHROP GRUMMAN SENIOR ENGINEER FOR ELECTRONIC MAIL; AND SANDRA GOLAS, NORTHROP GRUMMAN SENIOR SOFTWARE ENGINEER, LOTUS NOTES GROUP

Ms. SALIM. Good morning.

My name is Yiman Salim. I am a subcontractor working as a

Lotus Notes developer in the Executive Office of the President,

main contractor Northrop Grumman. I have held this position since

May 1998. I am a member of the Lotus Notes team, basically responsible for the analysis, development, and support of Lotus Notes

applications.

I understand that the committee would like me to describe the

events surrounding the Mail2 problem, and I am appearing here

voluntarily at the committee’s request to do so.

One of my first tasks at the EOP was to work on the upgrade

of Lotus Notes. During my work on this project in June 1998, Bob

Haas and I stumbled upon what we thought at the time was a flaw

in the records management, the scanner process. It was a very

technical typographical-type error committed by a prior contractor

before Northrop Grumman was retained.

We found, quite by chance, that inbound e-mail messages were

somehow not being picked up by the scanning process of the

records management system, called ARMS. The scanning portion of

ARMS is responsible for looking at the e-mail file and sending inbound e-mail messages through several processes, ultimately ending up on the VAX computer, where searches of those e-mails by

Government employees occurs.

Immediately after the discovery of this problem, we reported our

findings to our immediate supervisor, Betty Lambuth, who directed

us to put our findings in writing.

In the days that followed, it was determined that the problem

was specific only to the Mail2 server. The Mail2 problem, therefore,

affected approximately 500 users, most of whom worked for the

White House. The problem affected only those e-mails inbound to

the White House from outside by way of the Internet to Mail2 server users.

Outgoing e-mails sent from Mail2 users at the White House were

not affected and were records managed according to established

procedures.

The Mail2 server problem had originated some time during October 1996, when the contractors prior to Northrop Grumman built

a new e-mail server called ‘‘Mail2.’’ When the contractors personnel

named the Mail2 server, they used an upper-case ‘‘M’’ and lowercase letters for the rest of the name. Following its creation, howVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
23

ever, the individual mail accounts on the Mail2 server were assigned the name ‘‘MAIL2’’ using all capital letters.

When the case-sensitive ARMS scanner process ran on the Mail2

server to perform its comparison of the names, the comparison

failed, since the names did not appear in the exact same case;

therefore, none of those accounts from Mail2 were scanned. Inbound e-mails were not sent to the VAX, and, as a result, inbound

e-mails were not records managed.

Outbound e-mails were automatically records managed without

the need for such scanning. That is why outbound White House emails were not affected by this error.

A few days after the discovery of the problem, some time between

June 15 and June 18, 1998, Betty Lambuth, John Spriggs, Sandy

Golas, Bob Haas, and I were called into Laura Crabtree’s office for

a private meeting.

My recollection is that in this meeting Laura Crabtree told us

that Mark Lindsay had instructed that we were not to discuss the

problem with anyone, including our spouses or our family. We were

told that the incident was considered sensitive, and that we should

take it very seriously.

I do not remember hearing the word ‘‘jail,’’ and I never felt

threatened. In my mind, this was simply a technical issue that

needed a technical solution.

My understanding was that this issue would remain with this

small group only temporarily until the Office of Administration had

a chance to manage the situation.

On June 19, 1998, 1 week after the Mail2 problem was discovered, I left the country for 2 weeks on a pre-planned vacation. After

my return, I had little contact with the Mail2 issue except for attendance at some technical meetings regarding the problem.

In the beginning of November 1998, the group met to discuss a

technical solution to the Mail2 problem. We focused on how to stop

the bleeding, which meant that we wanted to find a way to properly manage inbound e-mails that entered Mail2 from that point

forward.

On November 22, 1998, John Spriggs and I executed a program

which artificially marked all unmanaged e-mails as record managed on the 394 active users who were located on Mail2 at that

time.

After that was completed, inbound e-mails on the Mail2 server

were, therefore, properly scanned by ARMS and were records managed. All unmanaged e-mails that entered Mail2 between the inception of the problem in November 1998 became part of a separate

e-mail reconstruction project.

Several months later, in April 1999, I discovered another problem in the records management system. I found that all users with

a first name that started with a ‘‘D,’’ such as ‘‘Doug’’ or ‘‘David,’’

were not being properly scanned by ARMS. This problem affected

not just Mail2 but all the Lotus mail servers.

The problem was corrected on June 1, 1999, and after this correction I created an audit agent that monitors all e-mail accounts and

reports in a timely basis if there are any records management

issues. This was done so that any future problems would be detected and solved in a timely manner.

24

Mr. Chairman, that is my recollection of the events concerning

discovery of the Mail2 system error.

Thank you.

Mr. BURTON. Thank you, Ms. Salim.

[The prepared statement of Ms. Salim follows:]

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Mr. BURTON. Mr. Haas, did you have an opening statement?

Mr BARR. Mr. Chairman, may Ms. Lambuth give her statement

now?

Mr. BURTON. If Mr. Haas has no objection, we’ll go with Ms.

Lambuth.

Ms. Lambuth.

Ms. LAMBUTH. Thank you.

First of all, Mr. Chairman, I’d like to thank you and your committee to have this opportunity to testify on the lost and hidden emails that occurred in the Clinton-Gore White House.

When Ms. Salim and Bob Haas informed me, I did take this information to my immediate supervisor in the White House, which

was Laura Crabtree.

Laura did understand the legal technicalities and severity of

these lost e-mails, and said that she would like to go talk to Mark

Lindsay.

Laura did come back to me and say that Mr. Lindsay had told

her to tell me and my staff that if any of us spoke about these

issues, about this particular project which we now named ‘‘Project

X,’’ we would not only lose our jobs, we would be arrested and we

would be put in jail.

Ms. Crabtree then relayed those messages on to my staff, which

had been relayed to her by Mr. Lindsay.

I had also asked Ms. Crabtree, and basically said that, you know, ‘‘It’s not that I dispute what you’re saying. I would like to hear this

directly from Mr. Lindsay,’’ and she agreed that this was appropriate.

I later that day met with Paulette Cichon, who was also aware

of the situation. Paulette and I went upstairs and I met with Mark

Lindsay that afternoon quite late. Mr. Lindsay did, in fact, reiterate everything that Ms. Crabtree had told me that he had instructed her to tell, and that was if I or any of my staff relayed

this information to anyone—spouses; they specifically named Steve

Hawkins, who was the program manager for Northrop Grumman;

Jim Wright, who was the COTR for EOP—that if we spoke to anyone that we—not just me, whoever relayed the information, but

that we would all lose our jobs, we would be arrested, and we

would be put in jail.

And this is quite significant, because if you are arrested or you

are removed from any agency—and we’ve gone through a 15-year

security clearance—that our security clearances are stripped from

us. This is one of our fears, also, is our security clearances are

stripped. In this town, as you can appreciate, that makes us unmarketable.

But basically, then, I do want you to understand that I was a

subcontractor to Northrop Grumman. I was the manager. I was in

on the proposal that Northrop Grumman did to EOP from the very

beginning. I was one of the key people in that proposal. I did the

orals and I had a great staff under me that was all Northrop

Grumman, except for Ms. Salim, who was with another contractor.

And we went forward to try to do our very, very best on this particular project.

When I was informed later about some of the e-mails that were

included in the findings, it did come up that there were e-mails

30

from Lewinsky, from Filegate, had to deal with Vice President

Gore’s campaign contributions, the trade seats, etc., so there were

some very significant issues that were before the Government at

that time that were quite evident in the lost e-mails.

We did meet, as was stated. We felt some pressure from various

people around. We did meet privately. We did go to the park. We

did sometimes go across the street to Starbuck’s and speak in generalities.

Somehow along the way, when we came out of one of the meetings, Sandy was basically asked to do work on a project by the

COTR, and the COTR——

Mr. BURTON. Excuse me. Would you identify Sandy? We

don’t——

Ms. LAMBUTH. Sandy Golas, Ms. Golas, who is also on the panel.

Sorry.

And he asked her to work on a particular problem. She informed

him that she could not at that time because we had a special

project. He asked her what it was. Going along with what we had

been told, she did not tell him.

It is my understanding that at that time she was taken down to

Steve Hawkins, who also asked her the same question. She refused

to tell and was threatened at that time by Mr. Hawkins with loss

of job and being fired also.

I was called at that time. I was in the doctor’s office. I was called

by Mr. Haas. I talked to Sandy, who was extremely upset. I’ve

never seen Sandy that upset. She’s a very level-headed person. I

spoke with Sandy. She told me what had gone on. I told her just

to hang tough, I would be back.

I at that time called Steve, talked to Steve, asked him some

questions, basically told him that if he had some issues with this

whole thing, he needed to address me, but I did not want him interrogating my staff or putting them under undue pressure.

I then left the doctor’s office in Vienna, went back downtown to

EOP, addressed Steve. I found Steve. He basically said he had

nothing else to say to me, that I was insubordinate, and that I

could not refuse to tell him, and things—that he would get me off

the contract, which did take place in July 1998.

Along with it having become apparent that the White House was

not going to proceed and let anyone know that these—that this

issue had occurred, there was definitely a stalling delay. And the

reason that I say that is that I kept asking for meetings. I couldn’t

get meetings. I was asked to come up with how much time was required for an individual to search these records, what equipment

would be needed. I gave all of these facts, turned all of this over.

And every time I asked what was to happen on this, where we

were going, I could get no answers.

Also, when it became very evident that I was going to be removed from the contract, there was—Northrop Grumman had done

a reorganization. All my people were put out under different managers, so, therefore, they could no longer work as a group on this

particular issue. They were approached by some of the Government

people to—that I needed to remain there because of the knowledge,

etc. That was turned down, which was their privilege to do that.

31

However, in doing so, it has another significant consequence, and

that was the fact that, with no manager there, they basically had

no one to get direction from. By being spread out amongst other

managers now, they had no one person to go to with these issues

or that was aware of all of the tasks that they had to do, so it made

it a little bit more difficult.

They had brought in another person, Jim Webster, from the

same company that Yiman works for, to take my place. I think that

there was, from what I had heard, that there was some resistance

to opening up to him, and I wasn’t told until the last day that I

was there that I could even talk to him about the project.

And Mr. Webster, to my knowledge, only stayed a few weeks and

then left the project, so they basically were with no supervision, as

far as having a manager.

Mr. BURTON. I think, Ms. Lambuth, that we have pretty much

covered the basic problem, and we’ll get back to you in just a few

minutes with some questions.

Ms. LAMBUTH. OK.

[The prepared statement of Ms. Lambuth follows:]

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Mr. BURTON. Mr. Haas, did you have some comments that you’d

like to make?

Mr. HAAS. Yes, sir.

Mr. HAAS. Good morning. My name is Robert Haas. I was asked

to come before you today to talk about what has been called the

‘‘Mail2 problem’’ at the White House. I do so voluntarily.

I have worked at the Executive Office of the President for the

past 9 years. I have worked for Northrop Grumman since November 1997, when they were awarded the contract to provide computer information services at the White House complex.

I am a Lotus Notes administrator. Lotus Notes is the e-mail system that is currently in use at the White House today.

Northrop Grumman administers the records management system

for certain agencies in the EOP.

On June 15, 1998, I was called to a meeting in the office of Laura

Crabtree, a civil servant for IS&T of the Office of Administration.

During the first part of the meeting, Mark Lindsay was on a speaker phone addressing the group, which included, in addition to myself, Ms. Crabtree, John Spriggs, Sandy Golas, Yiman Salim, and

Betty Lambuth.

Mr. Lindsay told us that the discovery of the Mail2 problem was

to be treated as top secret and that only Ms. Crabtree, Ada Posey,

and Mr. Lindsay, himself, could authorize the group to talk to anyone else.

Mr. Lindsay specifically told us not to talk to Steve Hawkins, the

project manager for Northrop Grumman and our ultimate supervisor on the site.

Mr. Lindsay hung up after about 5 minutes, and Ms. Crabtree

told me that I could not tell even Ms. Virginia Apuzzo anything if

she asked.

In a somewhat flippant way, I asked what would happen if I did

tell her or my wife, and Ms. Crabtree responded that there would

be a jail cell with my name on it.

Overall, my impression of the meeting with Ms. Crabtree and

Mr. Lindsay was very serious about their warnings. I’m not a lawyer and did not know one way or the other whether there was any

basis for their threats, but I did take to heart their instructions

and tried to obey them carefully.

This is a brief summary of my recollections of the discovery and

the report of the Mail2 problem.

Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Haas.

[The prepared statement of Mr. Haas follows:]

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Mr. BURTON. Mr. Barry, did you have comments you’d like to

make?

Mr. BARRY. Yes, sir. I have a brief statement.

Mr. BARRY. Mr. Chairman, I want the committee’s record to show

that I am Daniel A. Barry and I have been employed by the Executive Office of the President/Office of Administration since June

1992. My current title is deputy data center manager/electronics

records manager, and I have responsibility for the records that are

received by the automated records management system [ARMS],

and for the overall system administration of ARMS.

I am here today at the request of the chairman and would be

pleased to answer any questions that you may have about the

ARMS system.

Thank you.

Mr. BURTON. Thank you, Mr. Barry.

Any others like to—yes, sir, Mr. Hawkins.

Mr. HAWKINS. Good morning, sir.

My name is Steven Hawkins, former program manager for Northrop Grumman at EOP.

I am here voluntarily before this committee to provide facts pertaining to this matter today.

I wasn’t going to give an opening statement; however, I have to

contradict several statements made.

As a manager under the Government contract, we have strict

rules of business etiquette to work by. Ms. Lambuth said she

worked directly for Ms. Crabtree. That is incorrect. Her manager

was Bob Whiteman. At no time was the records management group

unmanaged during the tenure of Northrop Grumman.

I would also like to say that Northrop Grumman employees were

called to unauthorized meetings because of Ms. Lambuth. Repeatedly during the time of employment at EOP, Ms. Lambuth was

counseled by her manager, by me, and by her CEXEC management

for failure to comply with management directives, and I find it appalling that she is trying to make allegations that Northrop Grumman failed to manage the Notes group at any given time. They had

strict supervision. Mr. Bob Whiteman was that manager. And

throughout the contract, Mr. Whiteman and Ms. Lambuth were

both counseled to make sure that they followed the terms and conditions of the Northrop Grumman contract with EOP.

I had a lot of difficulty in that area, especially with Ms. Lambuth

wanting to work very closely with Government employees and failing to follow the Northrop Grumman program management’s directions and the term and conditions of the contract.

Thank you.

Mr. BURTON. Any other opening comments?

[No response.]

Mr. BURTON. Well, then, I will start—I’m sorry, Mr. Spriggs, go

ahead. You are welcome to make an opening comment.

Mr. SPRIGGS. Mr. Chairman and members of the committee, my

name is John E. Spriggs, Jr. Since September 1996, I have worked

on various contracts for the information systems and technology division of the Office of Administration within the Executive Office

of the President of the United States. Since December 1997, I have

been employed by Logicon, a Northrop Grumman company, and

41

have served as a senior systems integration engineer on their Executive Office of the President contract.

The systems I helped maintain include but are not limited to a

dozen or so EOP electronic mail gateways and mail servers, the

EOP access verification systems, Internet e-mail servers for both

the President and the First Lady. I maintained certain mail servers

and gateways also for the Office of the Vice President, news wire

servers for the White House Press Office and the EOP community,

as well as three Lotus Notes records management servers. I appear

voluntarily and have voluntarily testified before the Senate Governmental Affairs Committee on these topics.

I do not have firsthand knowledge of all the facts in these matters, and many aspects are technically complex and clouded by the

passage of time and the intervention of other events.

To the best of my knowledge, my actions and those of my colleagues were properly supervised and directed. They were lawabiding and within the scope of the existing Logicon contract.

The Executive Office of the President of the United States is, indeed, a challenging place to work. I appreciate more than I can express in my remarks the dedicated service that is rendered daily

by the men and women who labor there, whether they are volunteers, contractors, Civil Service employees, or Presidential appointees.

Thank you, Mr. Chairman, and members of the committee.

Mr. BURTON. Any other comments from any of the members of

the——

Mr. KLAYMAN. Yes, Your Honor. May I make a statement, insofar

as my client was attacked, a brief statement of order?

Mr. BURTON. I understand. Legal counsel can only confer with

their clients. We do appreciate your being here—— Mr. KLAYMAN. But the point is that Northrop Grumman—— Mr. BURTON. I understand, but she can speak for herself.

Mr. KLAYMAN. All right. I’ll let her speak for herself.

Mr. BURTON. You can make the comment.

But let me, before we get into a discussion or a debate about

that—we could get to that when I ask you questions, Ms. Lambuth,

because I think we need to start the questioning now.

Do you have a comment you’d like to make, Ms. Golas?

Ms. GOLAS. My name is Sandra Golas. I am appearing here voluntarily.

I manage the VAX systems at EOP. I handle all the records management applications on the back side. I don’t deal directly with

Lotus Notes applications; however, I have been involved with the

Mail2 issue, and I will answer any questions you have for me.

Thank you.

Mr. BURTON. Thank you very much.

Any other comments?

[No response.]

Mr. BURTON. If not, we’ll start the questioning. First of all, let

me make a comment. I understand there may be some personality

conflicts and some personnel conflicts and some disagreements on

management, and that is not a major concern that I have as chairman and I think as most Members have, and I’ll let them express

themselves when they get to questions.

42

My big concern is we subpoenaed documents from the White

House. The Justice Department subpoenaed documents from the

White House, as did the independent counsel. These documents

were important for a number of investigations—the so-called ‘‘Filegate’’ investigation, the travel office investigation, Waco, the

campaign finance investigation.

Now, this started, as I understand it, in September 1996, when

there was a glitch in the computer operation. The big problem

about the campaign finance investigation was going on at that

time, because there were questions about campaign contributions

coming in from China, Macau, Indonesia, Taiwan, Egypt, South

America, and elsewhere, and so these e-mails could be very relevant to that investigation, as well as the other investigations.

So I hope, during this conversation we’re going to have—and I

hope it is more conversational and not acrimonious, because, obviously, when you have a lot of people working in an office you do

have these problems, even in my office, you know. I’m always right,

the employees are always wrong, but that’s the way it goes.

But the facts we want are these: when did you find out that

there was a glitch? As I understand it, it was in 1998. There was

a meeting called. And what I want to ask you—and my first question, and I would like to go right down the line, is: what happened

at that meeting with Ms. Crabtree and Mr. Lindsay on the phone?

So those who were at that meeting, the first question I want to

ask you is—and I want your answer to be as succinct as possible— what do you recall happening.

Mr. Haas, I think you have been pretty clear. We understand

that you said that Mr. Lindsay was on the phone, he said this was

top secret, and to keep your mouth shut about it.

Now, during that time that he was on the phone, there was no

threat made other than this was top secret and to be kept quiet;

is that correct?

Mr. HAAS. That’s correct, by Mr. Lindsay.

Mr. BURTON. To your recollection.

Mr. HAAS. That is correct.

Mr. BURTON. Now, Ms. Crabtree, when you hung up the phone— when he hung up the phone, you said, ‘‘Well, what would happen

if I told my wife or somebody else,’’ and she said?

Mr. HAAS. That there could possibly be a jail cell with my name

on it.

Mr. BURTON. And you recall that vividly?

Mr. HAAS. Yes.

Mr. BURTON. OK. Now, who else was in that meeting? Ms. Golas,

what do you recall about the meeting?

Ms. GOLAS. Most of what Bob remembers. I remember the conversation. Mr. Lindsay was called and put on the speaker phone,

and I remember him talking to us and telling us it was very important that we didn’t take the information out of the room, that we

shouldn’t discuss it with anyone.

After the conversation, I don’t remember who said it, I do remember the word ‘‘jail’’ being used, because I later relayed that

same statement to Steve.

Mr. BURTON. When you relayed that to Steve, Mr. Hawkins, tell

me how you relayed it.

43

Ms. GOLAS. Well, he was trying to get me to tell him what I was

working on, and I was standing behind the table, and he said,

‘‘You’re bordering on being insubordinate,’’ and I said, ‘‘If it’s a

choice of being insubordinate or going to jail, I guess I’ll have to

be insubordinate.’’

Mr. BURTON. So you did feel a threat?

Ms. GOLAS. Somewhat, yes.

Mr. BURTON. OK. Who else was in the meeting? Ms. Salim, what

do you recall?

Ms. SALIM. I recall going into Laura Crabtree’s office and being

told—Laura basically told us that she had reported this problem to

Mr. Mark Lindsay and to the director of OE at the time, Ada

Posey, and she told us that so far only them three and us knew

about this problem, and she asked us—I remember very clearly

and vividly her telling us not to discuss this problem with anyone,

to include our families and spouses, which at that point that’s what

I found a little bit strange, which being, you know, being told not

to discuss this issue with anyone.

I remember it being very serious. They told us it was a sensitive

matter.

Basically, my understanding was that we weren’t to discuss this

problem with anyone, but my real understanding was that they

would—until they could manage the situation—this was my understanding—that they would appreciate from us not to discuss this

with anyone, and my feeling was that, until they could—until this

could be managed or they could manage the situation.

Mr. BURTON. But they did ask you to—they indicated it was top

secret. And did you feel threatened?

Ms. SALIM. I did not feel threatened. I did not feel personally

threatened by this. And I didn’t——

Mr. BURTON. Did they tell you it was top secret and to keep it

quite?

Ms. SALIM. I don’t remember the word ‘‘top secret.’’ I don’t recall

the word ‘‘top secret.’’ What I do recall is being told that this is a

sensitive matter, and to keep it confidential, basically not to discuss it with anyone.

Mr. BURTON. Including your husband or anybody?

Ms. SALIM. Correct.

Mr. BURTON. So they did ask you not to even tell your spouse or

anyone?

Ms. SALIM. Correct.

Mr. BURTON. OK. So they did want you to keep a lid on it?

Ms. SALIM. Correct.

Mr. BURTON. OK.

Ms. Lambuth. Or Mr. Spriggs. We’ll just go right down the line.

Mr. Spriggs.

Mr. SPRIGGS. Yes, I was there. Similar to Yiman, I did not hear

the word ‘‘jail.’’ In the reference to not telling your family, your

wife, your spouse, my attention picked up more on that, more of

a concern about not talking about that with my wife.

Another reference to—we typically have a lot of hallway conversations. There are always people that are around that come

through our office. So, again, Ms. Crabtree was specific about hallVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
44

way conversations, keeping those under control, don’t talk about

this, as well.

But, again, no—I don’t specifically remember a reference to jail,

either.

Mr. BURTON. Well, but you do recall—and I don’t want to put

words in your mouth, but you do recall that they said this is something that is very sensitive, should be kept secret, and don’t even

talk to your spouse about it?

Mr. SPRIGGS. That’s correct. Again, I—not the word ‘‘top secret,’’ which you characterized or someone characterized. Much more like

what Yiman was saying, and my remembrance was extremely sensitive. It was, ‘‘Keep a lid on it until we find out more about this.’’ The major thrust, from my point of view, was that there was a

point of contact or points of contact that were specifically mentioned to us. Any information that we were to get or give to the

Government was to be done through Betty Lambuth and Laura

Crabtree; that any instructions that we were to receive would come

through Laura and Betty to us. So that was our clear, if you would,

line of authority, as far as we knew. And again, the specific reference to Steve Hawkins and also to Jim Wright were made, so

there was no—— Mr. BURTON. They didn’t want Mr. Hawkins or Mr. Wright to

know about it?

Mr. SPRIGGS. That’s correct. Specifically, those people they did

not want us to talk to about it, so the names were specifically mentioned.

Mr. BURTON. OK. Well, from those of you who answered so far,

you are pretty consistent. They wanted you to keep this very quiet.

There’s some difference as to whether or not there was a threat of

jail. Some of you remember it, some of you don’t. There is also

some question about the word ‘‘secret.’’ But I think all of you had

the same impression: this was very sensitive and you were supposed to keep it quiet; is that correct?

[Witnesses respond in the affirmative.]

Mr. BURTON. OK. They’ve all answered in the affirmative.

Ms. Lambuth.

Ms. LAMBUTH. Yes.

Mr. BURTON. Pull the microphone close to you, please.

Ms. LAMBUTH. Well, I obviously had more meetings on this whole

issue than the rest of my staff did in informing, and I apologize if

I said that Laura was my direct supervisor. What I meant to say

was she was my direct Government supervisor.

Mr. BURTON. What we’re really interested in, Ms. Lambuth, is

what went on in that meeting, what went on in the conversations

between you and Ms. Crabtree and Mr. Lindsay. Those are the

things that are so relevant to what we want to find out, because

those documents had been subpoenaed by several agencies of the

Government. They were obligated to give them to us, and keeping

them quiet is very serious, so we need to know what was said by

Ms. Crabtree and Mr. Lindsay.

Ms. LAMBUTH. Right. OK. I apologize, but what I was trying to

say was I had more than the one conversation that my staff was

in, so some of this is going to mold in together.

Mr. BURTON. Sure.

45

Ms. LAMBUTH. But I was told by a couple of different people that

we were not to talk to anyone. The names of Steve, the COTR, Jim

Wright, were mentioned. We were not to talk to our spouses, anyone other than those of us that already knew about this particular

project, and then anyone else that they gave us permission to talk

to.

They did tell me that if any of us did talk about this, they basically threatened us that my staff would be fired, would go to jail,

would be arrested and go to jail, and that was made very clear

more than one time.

Mr. BURTON. By whom?

Ms. LAMBUTH. Laura Crabtree relayed it first as being said by

Mark Lindsay. That afternoon when I went up, or evening, when

I went up and talked to Mark Lindsay, Paulette Cichon was there.

Mr. Lindsay reiterated the same thing that I had been told by

Laura Crabtree, so I was told by Laura for Mr. Lindsay and then

by Mr. Lindsay, himself.

Mr. BURTON. Let me ask you this, now. As I understand it, a

number of you—maybe all of you—met at a park and talked about

these issues, or met at—what was that, Starbuck’s?

Ms. LAMBUTH. Starbuck’s.

Mr. BURTON. Is this a commercial for Starbuck’s? [Laughter.]

Met at Starbuck’s and talked about this. How many of you met

at those different meetings? Can you hold your hands up?

[Show of hands.]

Mr. BURTON. So all of you that were involved in the meeting.

Why did you feel—and any one of you can answer. We’ll let each

one of you answer—why did you feel it was important to meet outside the White House to discuss these things at either the park or

Starbuck’s? And you can just go right down the line. Make your

comments as brief as possible.

Mr. SPRIGGS. Again, we’re talking in the June timeframe, so

there were basically—there’s a lot going on at the Executive Office

of the President. There are—with the office arrangement that we

have, it is quite easy for people to be overhearing conversations.

My office is very much of a central place, if you would, for people

to come to. As I said in my opening statements, I’m responsible for

a lot of different things, so people are always coming around me

and my colleagues.

So if we’re going to talk about this stuff and keep it under wraps,

then we have to be careful as to where we are. Ms. Lambuth’s office was quite small. Even closing the door, we get into rather animated discussions at times, and so it became obvious that we needed to get to a place where we could talk about this.

Given that it was nice outside, there were opportunities for us

to go out to the park—only once, I believe it was, maybe twice.

The question of Starbuck’s, my colleagues, particularly Ms.

Lambuth at the time, drank Starbuck’s coffee and she liked to go

over there and get it. I’m a McDonald’s person, if I’m going to get

my plug in here. [Laughter.]

So I would go over to McDonald’s and get my soda. And so we

would talk about this, again trying to keep some level head about

all of this getting away from the hubbub of activity that we have

within the office.

46

Mr. BURTON. But the point is that you felt it was necessary to

go to some place private because of the level of concern that was

expressed to you by Ms. Crabtree and Mr. Lindsay?

Mr. SPRIGGS. That’s correct. To amplify it just a little bit more,

there were actually meetings where we would go to the second floor

of the new Executive Office Building. That room is—it’s a very

large room for divisional parties or presentations by the divisional

chief, or whatever. We would actually go to that room. We would

know basically who was there. We would be able to talk openly. It

was a large enough room that, again, just the team of people being

there. So we felt fairly comfortable that we were keeping to the assignment, which was to keep it under wraps and like that.

Mr. BURTON. I think that—is that pretty much what all of you

recollect? Ms. Crabtree, do you recollect any more—or Ms.

Lambuth, I’m sorry, do you recollect any more?

Ms. LAMBUTH. No.

Mr. BURTON. That’s pretty much it?

Ms. LAMBUTH. That’s basically it. When we would meet on the

second floor, sometimes, because the smoking area was on the balcony outside, we had a lot of people staring in, and Jim Wright

happened to be one of those people that would look at us with

questioning eyes at some times, so we felt a little bit better going

off premise.

Mr. BURTON. OK. Mr. Hawkins, I understand that you’re one of

the most senior Northrop Grumman employees that were onsite.

When did you first become aware of this situation?

Mr. HAWKINS. It was the—in June/July timeframe.

Mr. BURTON. Of? June or July of?

Mr. HAWKINS. 1998.

Mr. BURTON. 1998.

Mr. HAWKINS. Mr. Jim Wright, the COTR—contracting officer’s

technical representative—the person who could authorize Northrop

Grumman to work on EOP. He came to my office extremely displeased, and after 2 or 3 minutes of peeling him off the ceiling, because he said that Northrop Grumman employees were working

out of the scope of the contract, I got him to calm down, and then

he gave me the fact that he walked in Ms. Golas’ office, and she

basically said that she couldn’t tell Mr. Wright what she was working on, and he felt that that was inappropriate, and he also felt

that it was a violation of our contract. Therefore, he asked me to

investigate, and I told him I would.

That was the first time.

Mr. BURTON. Did—I’m going to yield to my colleague here in just

a minute, but did—when did you find out that they felt like this

was something—some felt that they were threatened and some felt

like that they had to keep a lid on this because there might be repercussions?

Mr. HAWKINS. Well, once I asked Ms. Golas to come to my office,

she was very nervous, to say the least, very fidgety. And when I

asked her what she was working on, she just totally came unglued

and told me that it was basically none of my concern. I said, ‘‘Well,

you’ve told that to Jim, now you’ve told that to me, and that’s pretty serious in the government contracting world, that—being cited

47

for working outside the scope of the contract. I needed to have that

information.’’

Well, I gave Ms. Golas 30 minutes to go back to her office, think

about her position. I did tell her the consequences would be insubordination.

Within a short period after she left my office, the three individuals being Sandy, Bob Haas, and John Spriggs, came to my office.

And that’s when I first knew that there was a problem. They felt

very uncomfortable talking about it, Bob more so, saying that he

was threatened.

Mr. BURTON. Could you use their last names, because——

Mr. HAWKINS. Excuse me. Bob Haas.

Mr. BURTON. Bob Haas? OK.

Mr. HAWKINS. Felt that he was very threatened with what had

gone on. Mr. Spriggs, being very calm, he said he was concerned.

All three employees I would characterize as being extremely

nervous in the situation.

At that time, they requested that they seek legal counsel from

Northrop Grumman, which we did, and——

Mr. BURTON. OK. I think that pretty much answers where we

are.

Mr. LaTourette, I’ll yield you the balance of my time.

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

I want to reiterate, first of all, the chairman’s remarks that how

pleased I think everyone on the committee is that so many of you

came voluntarily to this hearing.

I was at a meeting yesterday with Senator John McCain, who

until recently was running for President, and he was making some

observations. As you know, he is a champion of campaign finance

reform, and he was making some observations that he was glad

that the Vice President of the United States, Mr. Gore, was now

a discipline of campaign financing reform and has learned his lessons from experiences that occurred out of the Buddhist Temple

fundraiser in California.

But he went on to say—and something that struck me—was that

in order to prove that reformation, perhaps the Vice President

should call for a complete independent review of the campaign

fundraising abuses of the 1996 election season.

The word ‘‘independent’’ struck me, because in this case the subject of this hearing—as the chairman said, you had the Justice Department on both sides of the issue. They should be interested in

these e-mails on the basis of all of the subpoenas that went to the

White House, but they are also defending in civil litigation against

the production of these e-mails.

So, since that request hasn’t been forthcoming, this committee

and other committees of the Congress, we sort of slog along, and

we don’t always get the best reputation, and the reason for that is

that people come before the committee and they supply information

to the committee about what they’ve seen or what they’ve heard or

what they’ve experienced. We schedule a hearing. The chairman

usually lays out in his opening remarks what the hearing is going

to be about, and then the hearings don’t always live up to their expectations because people leave the country, some people die,

48

records disappear, and a couple years later they show up on coffee

tables in people’s houses and we can’t figure out how that happens.

And then that invariably leads the members of the minority, particularly our distinguished ranking member, to say something like,

‘‘Here we go again.’’ And my favorite in the last couple of areas was

something along the line that the chairman was wrong that Mr.

Wang said about Mr. Huang, just because of its alliterative quality,

if nothing else.

And so I’m glad you are all here, but there are some discrepancies in what it is you’ve presented to us. I would like to start

with those, and, Ms. Lambuth, I’d like to start with you.

I have been supplied with a—I believe, an affidavit that you’ve

executed, and I want to read you a couple of paragraphs and see

if you still affirm to that today, and then it involves a couple of

your cohorts here, Mr. Haas and Mr. Barry, in particular.

I’d like to read you this paragraph. ‘‘A contractor from Northrop

Grumman, whom I supervised and who examined this group of emails, told me the e-mails contained information relating to

Filegate, concerning Monica Lewinsky, the sale of Clinton Commerce Department trade mission seats in exchange for campaign

contribution, and Vice President Al Gore’s involvement in campaign fundraising controversies.’’ Did you attest to that under oath somewhere?

Ms. LAMBUTH. Yes.

Mr. LATOURETTE. And do you still stand by that today?

Ms. LAMBUTH. Yes, I do.

Mr. LATOURETTE. OK. And the contractor for NG that you supervised, is that Mr. Haas?

Ms. LAMBUTH. Yes.

Mr. LATOURETTE. Mr. Haas, after this Mail2 problem was determined—and, basically, as I understand it, a server was off-line and

not being subject to capture in the ARMS system; is that—so emails coming into the White House weren’t being captured by the

ARMS system on this mislabeled, or you had small type mailed to

as opposed to——

Ms. LAMBUTH. That’s a simplistic—— Mr. LATOURETTE. Well, I’m a simplistic kind of guy, and so

you’re going to have to bear with me.

So was Mr. Haas tasked with the responsibility, after this problem was discovered, of performing a manual search of these tapes?

Ms. LAMBUTH. Yes. He was actually tasked with a couple of different things. One thing was we were trying to determine the number of messages that were involved and how much time was going

to be required to do that.

The other thing that we had to try to figure out was, since we

were being—in this contract we were supposed to support all messaging, all of the ARMS, etc., plus some other duties that Bob had,

that how much time this would take so that taking him away from

some of the other duties—who we could transfer those to, amount

of time, etc. But yes, he did do some searches.

Mr. LATOURETTE. OK. But my specific question has to do with:

is it your recollection that you were informed by Mr. Haas that the

e-mails contained in these misdirected Mail2 servers contained information or e-mails or documents relating to all of these——

49

Ms. LAMBUTH. Yes.

Mr. LATOURETTE [continuing]. Ongoing investigations of the U.S.

Congress.

Mr. Haas, I turn to you now, sir. Did you have a responsibility

to go through and search the backup tapes that have become the

subject of this hearing?

Mr. HAAS. First of all, let me make it clear I have nothing to do

with the backup tapes.

Mr. LATOURETTE. OK.

Mr. HAAS. I believe what Ms. Lambuth is referring to me searching was the mail servers and the current mail files that existed on

those servers at that time.

I was charged with one task of finding all the iterations of people

that had not been managed during that period of time, once we figured out what the failure was.

And, upon doing that, I was to open every mail file, go to a particular view which held those documents in a single view, write

down account, and try to find the date of the oldest document in

each person’s and present that list. It was a list of some 525 mail

files that were involved at that time.

Shortly after I got in the middle of this—it was taking several

weeks to go through, because I was manually doing it with my eyes

and my fingers—I was asked to look in a couple of specific mail

files for particularly Monica Lewinsky was the sender. And upon

finding——

Mr. LATOURETTE. Who gave you that instruction?

Mr. HAAS. Every instruction I ever received was from Betty

Lambuth.

Mr. LATOURETTE. OK.

Mr. HAAS. That was the agreement.

Mr. LATOURETTE. OK.

Mr. HAAS. Anyway, I found a large cache of documents in one

mail file, and I think four documents in another mail file. I then

notified her of that.

At no time, other than I was asked to test two documents from

the Monica Lewinsky cache to verify that the anomaly Mr. Barry

had reported during the original Monica search—he stated he saw

incoming—it appeared to be a conversation, but they only had the

one half of it. So we took a trial time. They could tell me exact time

of day on a particular day, and I looked in that cache and found

the corresponding replies outbound—I mean, sorry, we had the

outbounds but not the inbound. And I found the corresponding.

So I looked at two documents of the Monica Lewinsky, just to

verify there was a conversation going on and here was the other

half.

At no time did I look at any other documents in any other mail

files, nor have I ever mentioned that there was any involvement

with Filegate or any other document. It is my practice, as a systems administrator there, to never read the mail from other people

because it is detrimental to my job, my sanity, if you will, to do

that type of activity, and it’s not within the guidelines of my job

to do. I don’t need to read your mail to fix your mail file.

Mr. LATOURETTE. I would hope not.

50

And so, Ms. Lambuth, that conflicts with your recollection of the

events? Is that a fair observation?

Ms. LAMBUTH. Yes, that does conflict.

Mr. LATOURETTE. OK.

Going back to you, Ms. Lambuth—— Mr. BURTON. Can I followup just 1 second.

Ms. Lambuth.

Ms. LAMBUTH. Yes, sir?

Mr. BURTON. Can you elaborate for Mr. LaTourette and the committee exactly what made you believe that there were sale of trade

mission seats that the Vice President was involved in, campaign

fundraising, and so forth? Can you get into that in some detail, as

quickly as you can? Because if there is a conflict here, we need to

resolve it. We need to find out, you know, if somebody is either misinformed or has forgotten.

Ms. LAMBUTH. Right.

First of all, Bob is right. We do not read anybody’s e-mail message. I want that on the record. But we do find certain information

when we do searches. And there are other people that basically

were also told that there were records with Filegate, the trade mission seats, Vice President Gore’s, etc., but—and Monica Lewinsky.

And Bob was asked to search at one time specifically for Monica

Lewinsky.

To the best of my knowledge, as I reported before, I was told that

there were e-mails in there that was not only from Monica

Lewinsky, but the trade, the campaign contributions, and various

other things. And we—this can also be verified by Ms. Hall, and

Ms. Hall is here in the room—that she was also told this.

Mr. BURTON. I’ll let Mr. LaTourette—— Mr. LATOURETTE. If I can. I mean, we talked to Mr. Haas. He’s

here. So where else did this information come to you that you’re

now describing for us? How do you know this to be so? In other

words, what you’re telling us and what you’ve sworn to in an affidavit under oath, how do you know this to be so?

Ms. LAMBUTH. To the best of my recollection, this is what I was

told.

Mr. LATOURETTE. By?

Ms. LAMBUTH. By Mr. Haas.

Mr. LATOURETTE. OK. I then want to go to another paragraph

in your affidavit, and that is that, ‘‘The Clinton White House considered but did not call Daniel A. Barry—’’ and that’s the gentleman almost at the end of the table.

Ms. LAMBUTH. Correct. Yes.

Mr. LATOURETTE [continuing]. ‘‘Back from vacation to talk to him

about Project X.’’

This was called ‘‘Project X,’’ I guess, at some time?

Ms. LAMBUTH. Yes, It was.

Mr. LATOURETTE. And then the Mail2 server reconstruction

project was called ‘‘Project X?’’ Is that a fair statement?

Ms. LAMBUTH. This whole mail issue was Project X.

Mr. LATOURETTE. All right. And, specifically, there was a discussion to maybe call him back from vacation, because he was anticipated to be giving testimony or deposition for somebody—Congress

or somebody else——

51

Ms. LAMBUTH. Right.

Mr. LATOURETTE [continuing]. But they decided against that?

Ms. LAMBUTH. Yes. We were—it did come up in the conversation.

The Government—— Mr. LATOURETTE. With who, if you could, just so we know who— what conversation did it come up with? Who was doing the talking?

Were you there?

Ms. LAMBUTH. I was there.

Mr. LATOURETTE. And who was talking?

Ms. LAMBUTH. And Ms. Crabtree.

Mr. LATOURETTE. OK.

Ms. LAMBUTH. I do not remember whether Mr. Lindsay was

there or not on this particular one, but there was another Government official there. And there was some discussion about whether

they should get Mr. Barry back off of vacation, because he was

going forth to do testimony—and what I was told or what I heard

was congressional testimony—relating to ARMS. And they didn’t

know whether to get him back, inform him of what had been discovered or not, and they would come up with a decision on that.

It was later told to me that they, in fact, chose not to tell Mr.

Barry.

Mr. LATOURETTE. OK. And you go on to say that, ‘‘As a result,

Mr. Barry did not have relevant information about the missing emails whenever he presented testimony to whomever he was——’’

Ms. LAMBUTH. That’s correct.

Mr. LATOURETTE. That’s your belief?

Ms. LAMBUTH. Yes.

Mr. LATOURETTE. Mr. Barry, let me turn now to you.

I have a declaration that you gave, apparently in a civil action

called ‘‘Alexander v. the FBI, et al.,’’ and that declaration is dated

and signed by you on July 9, 1999. Do you recall giving such testimony or such a declaration?

Mr. BARRY. Yes, I do.

Mr. LATOURETTE. And, specifically, you were being asked to give

information because you are the computer specialist in the EOP

that has—are you the supervisor of the automated retrieval system

or the ARMS program?

Mr. BARRY. I’m the program manager of the ARMS system.

Mr. LATOURETTE. And, specifically, in paragraph four—and it’s

marked exhibit 56. I don’t know if you have that with you, but

would you like a copy of it?

[Exhibit 56 follows:]

52

53

54

55

56

Mr. BARRY. Yes, please.

Mr. LATOURETTE. I don’t want to trick you.

Could somebody give him exhibit 56?

Let me read you paragraph four, and then, if you need to see the

thing, we’ll just take a minute and you can answer the question.

But in paragraph four, as I reviewed it, it looks like you were giving testimony in a U.S. district court for the District of Columbia

relative to the ARMS system and the retrieval of and reconstruction of e-mails, but nowhere in there, at least on July 9, 1999, do

you talk about the fact that there is this whole body on the Mail2

server that is out there.

I suppose, in this lawsuit, you are being asked—I think this is

the Filegate lawsuit, if I remember correctly—— Mr. BARRY. I believe that’s correct.

Mr. LATOURETTE. OK. But let me—can somebody take him my

copy, maybe, so we don’t waste so much time? Thank you.

I was referring to paragraph four, which is a specific reference

to the ARMS system and the reconstruction of e-mails. Were you

aware in July 1999 of this file—or this Project X or the fact that

we had a problem with the Mail2 server? I assume you were, since

you found that—— Mr. BARRY. Yes, I was.

Mr. LATOURETTE. OK. Why is it, then, that, in response to—were

you subpoenaed in this proceeding to give a declaration?

Mr. BARRY. Actually, I’m not sure. I don’t know if I was or not.

Mr. LATOURETTE. But, regardless, you gave testimony under

oath—— Mr. BARRY. Right.

Mr. LATOURETTE [continuing]. In lieu of showing up, I guess.

And I would assume that the inquiry was whether or not—well, it

has to do with the Filegate, that whole business about were FBI

files from former Bush White House employees were ordered up by

a bar bouncer from Pittsburgh, but nobody ever looked at them because they were kept in the refrigerator, or whatever—there was

testimony.

But I assume that the question was whether or not there were

any missing e-mails in the ARMS system or any records of the

EOP that could be retrieved relative to that issue. Isn’t that what

they were asking you about?

Mr. BARRY. No. I don’t think so. My whole involvement with the

Alexander case, which is what I had known it as—where I had

given—actually, this is the third declaration that I had given in

this case, and I gave a deposition in this case, as well.

To me, the questions that I was being asked and the declarations

that I was giving have all got to do with searching of e-mail, what

was searchable, how it could be searched, how long it would take

to search it, that type of thing, and particularly ARMS system. It

all focused on the ARMS system, because that’s what I do.

Mr. LATOURETTE. OK.

Mr. BARRY. And it also—it focused around the reconstruction

project, which had to do with reconstructing e-mail from the system

that we had prior to the ARMS system going on line, which was

the all-in-one system, and I was the project manager on that reconstruction project, as well.

57

And so, to me, my involvement, like I said, was, you know, how

difficult it is to search, how searches can be conducted, how long

it takes, what kind of searches we can do, and a status report on

the reconstruction effort. That was all it had to do with, my involvement.

Mr. BURTON. My time is expired. We’ll get you some more time

later.

Mr. LATOURETTE. Thank you very much.

Mr. BURTON. Mr. Waxman.

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

The origin of this hearing seems to have been a February 15,

2000, story in the Washington Times. The headline in the story is,

‘‘White House accused of cover-up.’’ The first paragraph reads as

follows: ‘‘The White House hid thousands of e-mails containing information on Filegate, Chinagate, campaign finance abuses, and

Monica Lewinsky, all of which were under subpoena by a Federal

Grand Jury and three Congressional committees, a former White

House computer manager says.’’

That’s the opening paragraph. It’s a powerful accusation. And I

want to begin my questioning by asking some questions about this

accusation.

The issue we are examining today involves what happened to a

subset of White House e-mails. As I understand it, during a 2-year

period, from 1996 to 1998, e-mails that were sent to the White

House or about 500 White House employees from individuals outside the White House were not captured by the White House data

retrieval system, called ARMS. Apparently, this was caused by a

technical defect in the ARMS-Lotus interface in the White House

computer system.

So my first question is whether anyone on this panel thinks that

the White House deliberately designed the ARMS-Lotus interface

so that incoming e-mails would not be captured.

Mr. Barry, let’s start with you. Let’s hear from everybody in answer to this question.

Mr. BARRY. I’m not sure what the question is.

Mr. WAXMAN. My question is, do you think the White House deliberately caused the computer problem? And did the White House

deliberately design the ARMS-Lotus interface so that incoming emails wouldn’t be captured?

Mr. BARRY. No. No to both. My opinion is no.

Mr. WAXMAN. Mr. Hawkins.

Mr. HAWKINS. I have no comment on that.

Mr. WAXMAN. OK. Ms. Golas.

Ms. GOLAS. I don’t believe so, sir.

Mr. WAXMAN. OK. Mr. Haas.

Mr. HAAS. No. I don’t believe so, either.

Mr. WAXMAN. Ms. Salim.

Ms. SALIM. No, sir. I don’t believe so. And I would like to add

something to the fact. The root of the problem was on the ARMS

scanner scanning process.

Mr. WAXMAN. Let me interrupt you, because I’m going to get to

those things, but I just want to get certain points responded to.

58

Do you think the White House caused this problem, and did they

design the system so that they wouldn’t be able to retrieve some

of these e-mails?

Ms. SALIM. No, sir.

Mr. WAXMAN. OK. Mr. Spriggs.

Mr. SPRIGGS. No, sir.

Mr. WAXMAN. Ms. Lambuth.

Ms. LAMBUTH. I don’t think there’s any way to really know that.

Mr. WAXMAN. Well, do you know whether the White House designed the ARMS-Lotus interface?

Ms. LAMBUTH. That was before I was there. I don’t know.

Mr. WAXMAN. So you don’t know one way or the other?

Ms. LAMBUTH. Right.

Mr. WAXMAN. OK. I’d like to know your understanding about this

computer problem, whether it was caused by private contractors or

the White House.

Mr. Barry.

Mr. BARRY. Well, I don’t think it was deliberately caused by anybody. It was—— Mr. WAXMAN. Nobody seems to say that it was deliberately

caused by—well, I asked about the White House, and nobody on

this panel said they thought the White House deliberately caused

it.

Now, there was a computer problem. It was caused by something—an error, or maybe something intentional. If it wasn’t

caused by the White House, was it caused by private contractors?

Mr. BARRY. Well, the Notes-ARMS interface was developed by a

Government contractor. It was not developed by Government staff,

to the best of my knowledge.

Mr. WAXMAN. Well, in a cover-up, people usually try to destroy

incriminating evidence.

Mr. Barry, were you ever directed to destroy any of the missing

e-mails by anyone at the White House?

Mr. BARRY. No.

Mr. WAXMAN. Ms. Salim, were you ever directed to destroy any

of the e-mails?

Ms. SALIM. No, sir.

Mr. WAXMAN. What about—did anybody on the panel want to tell

us that they were instructed to destroy the e-mails?

[No response.]

Mr. WAXMAN. The panel seems to all be shaking their head in

the negative.

In fact, I understand the——

Mr. KLAYMAN. Mr. Waxman, please listen to my client.

Mr. WAXMAN. Ms. Lambuth, do you have some—were you ever

directed to destroy any e-mails?

Ms. LAMBUTH. No, I was never directed to destroy e-mails, but

I know that there were 6 months of the e-mails—backup on the emails that were overwritten.

Mr. WAXMAN. OK. Now, in fact, I understand that not only were

none of you directed to destroy e-mails, but in 1998 Northrop

Grumman was directed to make backup copies of all the e-mails so

that they would be preserved.

Mr. Barry, can you describe how this occurred?

59

Mr. BARRY. Well, I’m not really sure what incident you’re referring to, but there are backup tapes of all of the mail servers for

some period of time. Nobody is really sure what the period of time

is or what exactly the tape situation is because an inventory has

to be done of the tapes.

Mr. WAXMAN. But is it accurate to say that Northrop Grumman

was directed to make backup copies of all the e-mails so that they

would be preserved?

Mr. BARRY. I don’t know that.

Mr. WAXMAN. Does anybody know the answer to that? Mr. Haas?

Mr. HAAS. The only backup that I—that was directed to Northrop Grumman that I’m aware of outside of the normal daily

backup that’s run in an automatic format was prior to us, as we

refer to ‘‘stopping the bleeding,’’ when we set the switches back on

e-mail so we could start capturing e-mail properly again. We made

a specific backup of all the mail servers for the purpose of preserving the way it was before we set the switches so we could get back

into the ARMS business, if you will, 5 minutes after that was done.

That was the only specifically backups that were ordered to be

done, and they’re done by a server group, none of which are

present today.

Mr. WAXMAN. So once somebody found out there was a problem,

you were told to see if you could do a backup system to correct the

problem?

Mr. HAAS. It’s not a backup of the mails, it’s a computer-based

backup where you just back up the whole disk drive in case of catastrophic events you can restore. We did not back up mail in the

sense of mail messages. We backed up the computer disk drives

that the mail is on.

But, again, that was a specific incident that was done as a preservative to the information so that we could go on and reset and

start doing ARMS properly after we had—so we’re preserving that.

That’s two specific sets of tapes that were set aside as part of that

inventory they refer to. Any other backups are on a normally, daily

basis, and whether they passed or failed successfully, I have no

idea.

Mr. WAXMAN. Although it appears evident from all your testimony that the White House didn’t cause the e-mail problem, and

no one has said that the White House sought to destroy any emails, there was a problem with the ARMS-Lotus interface that

may have resulted in e-mails not being provided to congressional

and Federal investigators, so I want to find out about the extent

of that problem.

When people read articles like those in the Washington Times,

they may get the impression the White House has withheld all emails from Congress and Federal investigators. In fact, the members of this committee know this simply isn’t true. The White

House has, in fact, turned over thousands of e-mails to Congress.

Some of them have been seized on by Chairman Burton and others

as serious evidence of wrongdoing.

So I’d like to get a sense of what e-mails we’re talking about

when we say that certain e-mails were not captured by this ARMSLotus interface. Are we talking about most White House e-mails,

or are we talking about only a small subset of the e-mails?

60

Mr. Barry, I’d like to draw upon your expertise with computer

systems in the Executive Office of the President and to ask you to

explain the scope of the problem to me.

To start with, let me ask you about timeframes. The ARMSLotus interface problem was in existence from roughly August 1996

to November 1998; isn’t that right?

Mr. BARRY. That’s my understanding. Yes.

Mr. WAXMAN. And during that roughly 29-month period, how

many people were affected by Mail2 problems?

Mr. BARRY. I’m not exactly sure, because I don’t work on the

Notes side of things, but, from what I’ve heard, it’s somewhere between 400 and 500 users.

Mr. WAXMAN. Now, with respect to those people, the Mail2 problem just prevented incoming e-mail correspondence from being

stored in the ARMS; isn’t that right?

Mr. BARRY. That’s correct, incoming external mail. I think there’s

a key difference there. Any internal mail going to those people

would have been captured in ARMS.

Mr. WAXMAN. So we’re talking about incoming e-mails, and those

are only e-mails from outside of what, the White House?

Mr. BARRY. Outside of the White House e-mail system, correct.

Mr. WAXMAN. And that means that an e-mail that was written

by someone else at the White House or the National Security Council, all that would have been saved by the ARMS system; isn’t that

right?

Mr. BARRY. Yes. Any mail going to these 400 or 500 users from

the Notes system within the EOP—actually, it’s not the White

House, it’s the Executive Office of the President’s system—would

be captured in ARMS.

Mr. WAXMAN. So all the internal e-mails would have been

searched in responses to subpoenas and other document requests

and provided to this committee and the other investigators?

Mr. BARRY. That’s correct. And also I’d like to point out that external mail going to one of these particular 400 or 500 users that

was CC’d or BCC’d to a non-affected 400 or 500 users would also

have gone to ARMS.

Mr. WAXMAN. OK. I understand that you regularly track the

number of documents that get put into ARMS and that you went

back and looked at what happened after the Mail2 problem was

fixed prospectively. Now, if the Mail2 problem was preventing lots

of e-mails from getting into ARMS, you would expect to see a significant increase in the documents being put into ARMS after the

problem was fixed, so let me ask you, Mr. Barry, did you see any

increase after the November 1998, fix?

Mr. BARRY. Well, there’s a couple of points that need to be made,

I think. I had been tracking all of the records that go into ARMS,

the numbers of records, by month and by agency since 1993. I have

all the information all the way back to 1993. And I keep a spreadsheet by month by agency on all of that information, and I remember—I wasn’t involved in any of the meetings that the rest of the

panel were talking about until July 6, 1998, and I remember at— I was involved in a series of technical meetings for about a weekand-a-half after July 6th, and I remember—I believe it was Mr.

Haas—I had asked the question——

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Mr. WAXMAN. Let me ask you to respond to my question.

Mr. BARRY. OK. Sorry.

Mr. WAXMAN. When you looked at all these e-mails and kept

track of them, the system was fixed prospectively. If there were a

lot of e-mails not going into the system before it was fixed, you

would expect to see a big jump in the number of e-mails after it

was fixed. Was there a big jump in the number of e-mails after it

was fixed?

Mr. BARRY. Well, there was a jump, because we have a normal

increase in—there’s a growth series in e-mail. But, from what the

analysis that I have done, there was an increase from November

to December, which is what you would expect, but it wasn’t as big

as I had expected, given what I had been hearing.

Mr. WAXMAN. Did you reach any conclusion about that?

Mr. BARRY. I reached the conclusion that was in my gut to begin

with, that yes, we had a problem, and it obviously affected some

number of e-mails, but it wasn’t as big as the 10 percent number

that I had been given or that I had been led to believe.

Mr. WAXMAN. Let me just again review what we’re talking about.

If it’s an e-mail that was sent from anybody within the White

House or Executive Office Building or White House agency, those

agencies covered by the system—if it was anything sent by anybody

there, that would have been picked up. If it was an e-mail internally from one person to another within the system, that would

have been picked up.

What we’re talking about were e-mails from outside of the system to somebody in the system, but even if that were the case, and

one of those e-mails were sent to somebody inside, and there was

a carbon copy or copy directed to somebody else, then that would

have been picked up, as well, in the ARMS system, wouldn’t it?

Mr. BARRY. That’s correct.

Mr. WAXMAN. OK. And if the recipient replied to this e-mail that

was received, wouldn’t that whole reply and the original e-mail get

picked up in the ARMS system?

Mr. BARRY. If the user had done a reply with history, yes, it

would.

Mr. WAXMAN. So there are several ways that e-mails that were

not put into the ARMS initially ended up in the system eventually.

What’s more, even if the e-mail wasn’t put into ARMS, it may still

have been provided to our committee or whoever else was asking

for documents.

Now, when White House counsel Beth Nolan testifies this afternoon about how the White House responds to subpoenas, she’ll tell

us that, in addition to searching ARMS, they asked people in the

White House or the EOP, the Executive Office of the President, to

search their own computers for responsive material. So any e-mails

that were saved by the individual recipients should have been provided, even if they were not in the ARMS. Any e-mails from

sources that had been subpoenaed—like if somebody is looking for

an e-mail from the Democratic National Committee to somebody in

the White House, well, the Democratic National Committee had

been subpoenaed for all their e-mails, so that would have gotten

into the submissions to the independent counsel, all the investigating committees and agencies.

62

It appears that we’re talking about, in terms of missing e-mails,

only a narrow sliver of the total number of White House e-mails.

Mr. Barry, do you agree with that?

Mr. BARRY. I’m not sure anybody can really tell for sure, without

going back and actually looking at the stuff. But, from the numbers

that I have in front of me, it wasn’t as big a problem as I had been

led to believe in the early days.

Mr. WAXMAN. Now, the Washington Times article says that the

e-mails that were not provided to congressional and Federal investigators involved Monica Lewinsky, campaign finance issues, other

alleged White House scandals, so I want to ask this panel what you

know about the content of the missing e-mails. And, as I ask you

these questions, there is an important distinction to keep in mind.

One issue is whether the e-mails were captured by the ARMS system, and I believe this is called being records managed. But a second and distinct issue is whether the e-mails were turned over to

investigators.

It is possible that some e-mails may not have been in the ARMS

but could have been turned over to investigators as a result of

other types of e-mail searches.

Mr. Haas, I understand that you conducted a search to determine what kind of e-mails were not being records managed. By

this, I mean you conducted a search to see what kind of e-mails

were not being captured by ARMS.

My understanding is that your search involved e-mails related to

Monica Lewinsky. Specifically, I understand that you went into the

e-mail accounts of Betty Currie and three people to determine what

incoming e-mails they had related to Monica Lewinsky; is that

right?

Mr. HAAS. Partially. I went in to several accounts—four, I believe, or five accounts, of which one was Betty Currie and Ashley

Raines—and found the cache of Monica Lewinsky documents. I did,

however, not search the entire affected group of 525 people for

Monica Lewinsky. I was doing this in a manual process, just as you

would search your mail file. I went, opened it, and said, ‘‘Show me

everything with ‘M.L. Lewinsky’ on it,’’ and just happened to stumble over those and the four.

Beyond that, I was not given any direction, nor do I have the

ability to do a massive search of all the mail files on a system. It

would take a programmer to write a program to search across mail

files, although I kind of expected I might be asked, you know, to

have that done later on, it never came forward as a request. But

I was never instructed to search for anything but that Monica

Lewinsky.

It was in the middle of me going through each mail file and

counting the number of documents, so it was an interruption to the

process, and then I went right back to the process of counting documents.

Mr. WAXMAN. So you were able to find e-mails that weren’t in

the ARMS system when you looked at the individuals whose—— Mr. HAAS. They were listed in the particular mail file as not

being sent through to ARMS because they still existed in this view.

Whether they had another means to arrive there through the processes that Mr. Barry has described of a BCC to another agency or

63

re-transmitted out by the original recipient, I have no way of knowing that.

Mr. KLAYMAN. Mr. Waxman, perhaps we can be helpful here.

Our other client, Sheryl Hall, is prepared to testify here today that

Mr. Haas browsed through other files.

Mr. WAXMAN. Mr. Chairman, point of order. I know the attorney

is actively involved and—— Mr. BURTON. And I do appreciate—— Mr. WAXMAN [continuing]. Has his own point of view, but I

thought—— Mr. BURTON. Stop the clock just a minute.

Mr. KLAYMAN. I thought you were here for the truth.

Mr. WAXMAN. We want to hear the truth. Let me pursue my

question so I can—— Mr. BURTON. We stopped the clock just for 1 second. Point of

order. We do appreciate your help very much in bringing all this

to our attention, but the counsel—if Ms. Lambuth wants to make

a comment, she should direct her question or comment, or anybody,

to Mr. Waxman and not the legal counsel. Legal counsel is to just

confer with the client. That’s the standard drill.

Mr. KLAYMAN. Mr. Burton, let me address this to you, because

we brought Ms. Hall. We offered to make her available, and I don’t

understand why your committee won’t let her testify here today.

Mr. BURTON. We’ll confer about that and—but please confer with

your client.

Mr. Waxman.

Mr. WAXMAN. Well, maybe we’ll want to hear from her, but,

meanwhile, we’ve heard from all of these people and I want to ask

some questions, just so we can understand more about what was

going on.

So, Mr. Haas, you found a bunch of e-mails about Monica

Lewinsky that weren’t on the ARMS system; is that right?

Mr. HAAS. I can only tell you that the mail file I found them in

said they were not on the ARMS system. Whether they arrived

there through a secondary process, I have no way of knowing.

Mr. WAXMAN. So they could have arrived there from a secondary

process, meaning what, they responded to or copied to somebody?

They might have also been—— Mr. HAAS. Anything is possible.

Mr. WAXMAN. OK. Now, the fact that these e-mails were not in

the ARMS system doesn’t necessarily mean they weren’t turned

over to the independent counsel, Ken Starr. When the White House

responds to a document request, they do more than simply search

the ARMS. They also ask the relevant individuals to search their

own e-mail accounts. These individual searches could have turned

up the same e-mails that Mr. Haas found.

Mr. Haas, do you know whether the Monica Lewinsky e-mails

that you found were new e-mails that had not been previously

turned over to the independent counsel?

Mr. HAAS. I do not know that, but I can state that, with having

worked at the agency for 9 years and having received those requests for documents over many years, we were instructed we did

not have to search our own mail files. Be advised, the mail files are

not on your local hard drive. You are reaching across the network

64

and looking into the server. That’s why the ARMS process had to

be created to take care of the things that you really couldn’t do.

The search criteria ability within Lotus Notes at our current site

is minimal for finding a group of documents. If you were to search

your own mail file and look for Monica Lewinsky using the standard search methodology, you would not find what I found. But, because of my expertise in the area, I was able to find a way to locate

them in the three files that I—I mean, the five files that I opened

and find those messages and then collect them together and

present them to my management, as they requested.

Mr. WAXMAN. So you found that there were e-mails that were not

on the Lotus system or may not have been on the Lotus system,

but do you know, yourself, whether these e-mails might have been

turned over to the independent counsel independently of what was

turned over from the Lotus system?

Mr. HAAS. The only thing I know is I was asked to print them

all out and put them onto paper, put them in an expandable folder.

I presented them to Betty Lambuth and she informed me that she

delivered them to what I think is White House counsel in the old

building, handed them off to an unknown person. That’s secondhand hearsay.

Ms. LAMBUTH. The person I handed it off to was Mark Lindsay.

The request was that they were printed off. ‘‘Bob, print these emails off,’’ and I hand-delivered them over to the old Executive Office Building to Mark Lindsay, who was over there in a meeting.

Mr. WAXMAN. Thank you.

Well, I think I know the answer to the question, because my staff

asked Beth Nolan, who we are going to hear from later, about this

issue, and she told us—and I understand she’ll testify to this point

later—that all of the Monica Lewinsky e-mails you found were duplicative. They were copies of e-mails that the counsel’s office had

already turned over to the independent counsel. The e-mails were

not in the ARMS—I’m going to stop for a minute while those bells

are ringing. These e-mails were not in the ARMS system, but they

were in Betty Currie’s and some of these other people’s accounts

I’m not technical enough to explain exactly, but it was in their computer. And you made copies of them, they were turned over to the

White House, and those e-mails were turned over—and we’ll hear

later from the White House counsel—to the independent counsel.

So the e-mails were not in ARMS, but they had been captured

by the independent searches of e-mail accounts of Betty Currie and

other individuals.

I think this is an important point, because the Washington

Times reported that these e-mails had been withheld, but, in fact,

that’s not true. They had already been turned over.

Now, Mr. Haas, do you have any knowledge about the content of

any of the individual e-mails that were not turned over to investigators?

Mr. HAAS. I, again, don’t know of documents that weren’t turned

over. That is not my knowledge. I did read the two Monica

Lewinsky e-mails to validate the incoming and outgoing event that

I was asked to check into, so yes, I read two of those referenced

documents. Whether they were turned over, I don’t know.

Mr. WAXMAN. I wouldn’t expect you to.

65

Well, the individual who has been making the most vociferous allegations against the White House is Sheryl Hall, who was a

former White House employee. She’s the source for the Washington

Times article, and I was quoting that article. She gave a deposition

about the content of the e-mails on February 19, 2000. In the deposition she says that she was told by a Northrop Grumman contractor that the missing e-mails contained information relating to

Filegate, Monica Lewinsky, and Vice President Gore’s fundraising.

She then said under oath, ‘‘I was told by this contractor that if the

contents of the e-mails became known, then there would be different outcomes to these scandals, as the e-mails were incriminating and could cause people to go jail.’’ You are the Northrop Grumman employees who knew the most

about these e-mails.

Ms. Salim, let me ask you first. Are you aware of any information that would substantiate Ms. Hall’s accusations?

Ms. SALIM. No, sir.

Mr. WAXMAN. Mr. Spriggs.

Mr. SPRIGGS. The only thing that I can think of that may even

come close to doing that is that early on we speculated about possible information but had no direct knowledge of what was in it

and, you know, so we had no information to give her or Ms.

Lambuth or anyone else.

Mr. WAXMAN. Mr. Barry, do you know?

Mr. BARRY. No, I don’t.

Mr. WAXMAN. Mr. Hawkins.

Mr. HAWKINS. No, sir.

Mr. WAXMAN. Ms. Golas.

[No audible response.]

Mr. WAXMAN. Mr. Haas.

Mr. HAAS. No, sir.

Mr. WAXMAN. Ms. Lambuth.

Ms. LAMBUTH. I still stand behind what I said before, that I was

told that there was other important information, Filegate, etc.

Mr. WAXMAN. You were told by Mr. Haas.

Ms. LAMBUTH. Right.

Mr. WAXMAN. And Mr. Haas testified that he didn’t tell you that.

Ms. LAMBUTH. I understand, sir. I am saying I still stand behind

what I was—what I stated, that I was told.

Mr. KLAYMAN. I object. That’s not what he testified to, Mr. Waxman. That’s false.

Mr. BURTON. Only the witnesses can testify, and she——

Mr. KLAYMAN. I’m not testifying. I’m objecting.

Mr. BURTON. Well, you’re not allowed to object.

Mr. KLAYMAN. Mr. Chairman, then you should admonish your

colleague there, because that was not the testimony.

Mr. BURTON. Mr. Klayman, your witness is perfectly capable of

refuting any remarks that are made.

Mr. Waxman.

Mr. WAXMAN. Mr. Haas, she said you told her. Did you tell her

that you knew the contents?

Mr. HAAS. I never, evidence intimated in any way, shape, or form

that I knew any content of any e-mails other than the two Monica

Lewinsky documents. To that point, there was lots of conversation

66

within our group as to if there was ever found to be a large content

of anything involving these five or six different events it would be

a different story, but if—she may have misunderstood that to say

I saw something in there. But I have never, ever seen anything in

those documents except for the two Monica Lewinsky documents.

Mr. WAXMAN. Before my time is completely up, I want to go into

this whole question of the so-called ‘‘threats,’’ the jail threat, particularly. The Washington Times reported you were told that there

was a jail cell with your name on it if you discussed the missing

e-mails with anybody. This threat is supposed to have occurred at

the meeting with Laura Crabtree on June 15, 1998. Mark Lindsay

also reportedly participated in at least a part of this meeting by

telephone.

Ms. Salim, you were the first person to discover the e-mail problem, and you were at that June 1998, meeting. Do you recall being

threatened with jail if you discussed the problems with others?

Ms. SALIM. No, sir. I do not remember hearing the word ‘‘jail’’

from anyone in that meeting.

Mr. WAXMAN. Well, Mr. Haas, my understanding is you have a

different recollection.

Mr. HAAS. Yes, sir, but I posed the question to her and she was

answering me directly, so I would remember.

Mr. WAXMAN. In your statement, you said the question was sort

of flippantly asked. Do you think that the response might have

been a flippant response?

Mr. HAAS. I did not take it that way, sir. I didn’t want to read

any more or less into it. I had sealed my mind that I had been instructed to treat it in the manner that she instructed, ‘‘Don’t talk

to anyone, or else.’’ I took it at face value and I lived up to that

face value until I couldn’t do it any more.

Mr. WAXMAN. At the time you were all finding out about this

computer problem, the President was being investigated by Ken

Starr for impeachable offenses. There was a media frenzy going on

outside the White House. It seems clear that Mr. Lindsay and Ms.

Crabtree did not want any of you to talk to the press or to people

who might talk to the press about the problem until the nature and

scope of the problem was understood.

I’d like to ask whether you think this was an unreasonable request. Anybody think it was an unreasonable request?

Ms. LAMBUTH. I think in the beginning that’s the way we all felt,

but it also became very obvious that they weren’t going to do—

make any moves to release this information—to release the information that there were e-mails found.

Mr. WAXMAN. OK. But did any of the rest of you think that

maybe there was—it was reasonable not to want to have this information that the system wasn’t working available to the press when

they’re on a media frenzy and people were out to impeach the

President?

Ms. Salim, what do you think?

Ms. SALIM. I believe that that was a reasonable request for them

to ask us to keep a lid on this until they could manage the situation.

Mr. WAXMAN. Mr. Spriggs, what is your opinion?

67

Mr. SPRIGGS. From my point of view, the fact that we didn’t

know how many messages actually were involved, we didn’t know

the content of it—while we may have speculated about its implications and what was going on, the reality was we needed to figure

out what the problem was and how were we going to deal with getting these in the records management system.

When Betty, through whomever directed her to do so, told Bob

to get information, he proceeded to do that in a deliberate manner,

and it took him several weeks to accomplish it.

There was no, from my point of view, any kind of question that

we were not going to proceed forward with this and resolve this

question. We were trying to get all of the information so that

whomever—OA counsel or White House counsel—would have sufficient information to be able to judge the import of the information

that they had.

As far as I knew personally—and my colleagues can speak to

what they knew—I had no knowledge of anyone trying to stop us

from doing any of that or trying to keep any information away from

the Starr or anyone else at that point.

Mr. WAXMAN. I know if my office were being investigated, if I

was being investigated, and we thought we gave all the materials

to the White House counsel and all the people that were investigating me, and then I found out the system wasn’t working the way

it was intended, I’d tell everybody, ‘‘Let’s hold off and see what’s

going on here and let’s correct the system.’’ I just have one last question. Mr. Hawkins, people didn’t want

them to talk to you. Was that because they might have had a fear

that you might have come back and said, ‘‘This is outside the scope

of the Northrop Grumman contract,’’ and you might not go out and

fix it?

Mr. HAWKINS. I believe their intent, because they had a computer failure, they should have at least acknowledged within their

own Civil Service and follow contractual guidelines. I believe, in my

own opinion, that they did try to cover up the fact that they had

a computer glitch and there were e-mails involved and it did include the President and Monica Lewinsky.

I had—at no time did I ever feel that they were trying to be upfront and open and honest because of my discussions with Mr.

Lindsay.

Mr. WAXMAN. So you got that opinion from—your impression was

from Mr. Lindsay?

Mr. HAWKINS. From Mr. Lindsay.

Mr. WAXMAN. Well, I guess we’re going to hear from him and

we’ll find out more about it.

Ms. LAMBUTH. Mr. Waxman, I’d like to say that I agree with

what John says. As I said a few minutes ago, I think in the beginning we all felt that they just wanted to get their act together, basically, how they were going to let the public know about this. But

as time went on and we couldn’t get any decisions of how they

wanted us to handle it, what the next step was going to be, etc.,

it became very obvious to us, and we had some discussions on this

that they did not want this to come forth.

I think one of the critical things that we—— Mr. WAXMAN. You had some discussions among——

68

Ms. LAMBUTH. Amongst our—within the team.

Mr. WAXMAN. And so you’re talking to the team and trying to figure out what was going on. You first thought that they were trying

to make sure you correct the problem, but then you reached the

conclusion that they were really trying to cover it up. But that

doesn’t sound to me like the testimony of the others on this panel

who were part of the team.

Am I wrong? May I hear from others on the team?

Mr. BARR. Mr. Chairman, if we could have regular order, I think

the time has expired and we have some votes.

Mr. BURTON. We do have votes.

Mr. WAXMAN. Well, let’s just get an answer to this and then we

can——

Mr. BARR. I think the time has expired, and I would call for regular order.

Mr. BURTON. It has expired. I will let these people answer this

question and then we’ll come back as soon as we vote. And those

who want to go ahead and hit the floor, come right back.

Proceed, because we have to take off here real quick.

Mr. SPRIGGS. To the extent that there was—from my conversations with her and with the team, the question arose as to

whether——

Mr. BARR. Mr. Chairman, can we have regular order? We have

a vote on the floor and there are Members that don’t want to miss

the questioning and the answers.

Mr. BURTON. All right. We’ll withhold answers to the question

until we return. We stand in recess.

[Recess.]

Mr. BURTON. OK. We will recall the last question. We’re going

to allow Mr. Waxman to end that questioning with that question,

because we were interrupted by the vote, and then we’ll go to Mr.

Barr.

Mr. WAXMAN. Ms. Lambuth testified, as I understood it, a

minute ago that at first she thought that the White House was trying to correct the computer problem, but then she came to a different conclusion, and I asked her why, and she said, ‘‘Well, in

talking to the rest of the team.’’

Now, some of you were part of the team. Was this conclusion one

you had reached? And was it just one that you all speculated about,

or do you agree with her conclusion? And do you have reasons to

agree with that conclusion or not agree?

Mr. SPRIGGS. When Betty left the—when Ms. Lambuth left the

contract, right before she had left there was a lot of discussion

about what had happened and, you know, about what was going on

around us. And, again, we didn’t have her access to Laura and

higher-ups, so a lot of the stuff we would hear would come through

her, and we were, as far as I was concerned, you know, trying to

be responsive and supportive of her. We also, I think, because of

the things that had happened between Mr. Hawkins and Ms.

Lambuth, we were all very, you know, aware of that situation.

The question of whether or not we had arrived at a conclusion

that the White House was obstructing anything.

69

There were so many technical issues and problems associated

with this, and her having left in July, it turned out many other

technical issues were of importance to us.

At that point, whether or not Betty leaving felt like that, you

know, a consensus was that we were supporting her and that we

believed that, I don’t—I did not have that position, although I do

feel that at times that Betty, you know, again, had superior—other

information that I didn’t have, so I couldn’t really say whether or

not anyone was doing anything to stop it.

Again, from my point of view, we didn’t know enough about what

was going on to say that the White House had stopped anything.

It was more of a technical problem that we were worried about,

and that that’s what we were really after was the technical solution.

Mr. BURTON. Before we proceed with Mr. Barr, let me just say

that it has been well established early on that all of the people that

were in the meeting felt either threatened or felt concerned if they

gave any information out about that.

Now, let me just say one other thing—— Mr. WAXMAN. I don’t think that was established.

Mr. BURTON. Yes, it was established.

Mr. WAXMAN. You may have reached that conclusion, but I don’t

think that’s the testimony.

Mr. BURTON. OK. Well, I’ll ask Mr. Barr, when he questions, to

reestablish that they all felt concerned or threatened by the comments made by Ms. Crabtree or Mr. Lindsay. We’ll let him do that.

But I just want to admonish all the witnesses of this one fact.

We’re going to find some additional information, I believe, before

the day is out, or, if not today, later, about these e-mails, because

we’re not going to let this thing drop. And if anybody perjures

themselves before this committee, I will send a criminal referral to

the Justice Department and they will be prosecuted or we will pursue that, so I don’t want anybody that’s—I mean, there are some

differences of opinion here, and if somebody is not telling the truth

I want you to know that’s very, very disconcerting and you need

to think about that and get this—and be as square and honest with

this committee as possible, because if we find out you are lying

there will be a problem.

Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

I believe that when Mr. Waxman was asking that last round of

questions, before we broke for the vote, he was indicating that, in

his view—and I presume he was talking as a manager, a Congressman with regard to his staff—he finds nothing wrong with calling

people into his office and telling them that they’re going to go to

jail if they even tell their spouse or their supervisor——

Mr. WAXMAN. Point of order, Mr. Chairman. I just think he

ought to ask his questions, instead of trying to attribute to me

anything—— Mr. BARR. Now, whether or not—— Mr. WAXMAN [continuing]. One way or the other. Let him ask his

own questions. I’ll speak for myself. Let him speak for himself.

Mr. BURTON. That is not a legitimate point of order. The gentleman has the time.

70

Mr. BARR. Thank you.

Before we broke for the last vote, Mr. Waxman was going on, in

an effort to try and trivialize the intimidation that a number of you

felt when you were admonished by Ms. Crabtree, for instance, not

to speak to anybody under threat of going to jail if you exercised

your rights to inform your supervisor of a problem, if you told anybody about it.

Now, while that may be standard operating procedure for certain

members of this committee, it is not for this Member, and I think

I can speak for the chairman that it is not for him, either.

When somebody calls you, for example, Ms. Lambuth, into their

office and threatens you with going to jail if you tell your supervisor about a problem that you believe needs to be corrected, do

you find that intimidating?

Ms. LAMBUTH. Most definitely.

Mr. BARR. Is there anybody else on the panel that would not find

that intimidating?

Mr. SPRIGGS. Maybe I don’t understand the word ‘‘intimidating,’’ but I am somewhat intimidated by Mr. Burton’s comments here. I

think that Mr. Burton, I think, did the rightful job to express—— Mr. BARR. That’s fine, Mr. Spriggs. I’m not—— Mr. SPRIGGS. Am I intimidated—— Mr. BARR. I’m not asking you how you feel about Mr. Burton’s

testimony. I appreciate the fact that you want to say that and

you’ve said it. Now let’s move on.

My question had nothing to do with Mr. Burton. OK?

Mr. SPRIGGS. Yes, sir.

Mr. BARR. OK. So don’t interject something that is not asked for.

If Mr. Waxman would like you to go on in support of what he’s saying, I’m sure he will—he is very adept at doing that.

My question was simply: are there any other members of the

panel that are here today that, if they are called into somebody’s

office and threatened with going to jail if they tell anybody about

a problem that they have identified, and that includes even going

to their supervisor to try to get it rectified, is that not intimidating.

Mr. SPRIGGS. When I was called into that office and Ms. Crabtree

and Mr. Lindsay were giving me instructions, I perceived that

those instructions were reasonable instructions.

Mr. BARR. OK. That’s not what I’m asking you, Mr. Spriggs.

Mr. SPRIGGS. Were they threatening—I know, sir. I’m trying to

get at your question. Were they threatening to me?

Mr. BARR. Get at it quickly.

Mr. SPRIGGS. Were they threatening to me? Yes, they were

threatening to me, in——

Mr. BARR. That’s my only question.

Mr. SPRIGGS [continuing]. In narrow context.

Mr. BARR. I have other questions here, and I appreciate your

candor, and if you have other things to say, I’m sure you can work

it out with Mr. Waxman to say them. I’m not interested in that and

I’m not interested in how you feel about Mr. Burton.

Is there anybody else who would not feel somewhat intimidated

if they were threatened with going to jail if they told their supervisor about a problem that they had discovered?

[No response.]

71

Mr. BARR. Now, Mr. Barry, I understand that you were asked in

January or February 1998 to locate an e-mail from Monica

Lewinsky to Ashley Raines. That is correct, isn’t it?

Mr. BARRY. Not exactly.

Mr. BARR. OK. Were you asked at some other time to find an email from Monica Lewinsky to Ashley Raines other than January

or February 1998?

Mr. BARRY. No. I was asked by White House counsel to perform

an ARMS search, a search of the ARMS system.

Mr. BARR. When you say White House counsel, specifically who?

Mr. BARRY. I can’t remember.

Mr. BARR. OK. By the Office of White House Counsel?

Mr. BARRY. Correct.

Mr. BARR. OK. Who was it that called you up? There’s no such

person as White House counsel there, particular people. Who was

it that called you from the White House counsel’s office?

Mr. BARRY. I can’t remember, sir. I get three, four search requests every month, so I can’t remember back in 1998 exactly who

it was, but it would be in the record, though. I have e-mails of all

that stuff.

Mr. BARR. OK. So if, in fact, we subpoena those documents from

the White House or you are served with a subpoena for the production of them, that would be reflected in those documents?

Mr. BARRY. That’s correct.

Mr. BARR. And you could refresh your recollection?

Mr. BARRY. That’s correct.

Mr. BARR. OK. So that’s what prompted you to look for that particular e-mail?

Mr. BARRY. No. I was never asked to look for a particular e-mail.

I was asked to perform an e-mail search—not an e-mail search, an

ARMS search, a search of the ARMS system.

Mr. BARR. Right.

Mr. BARRY. In January 1998.

Mr. BARR. For what?

Mr. BARRY. For—I can’t remember the specifics of it, but it had

to do with the Lewinsky matter.

Mr. BARR. OK. And that’s when you went to Mr. Spriggs to help

locate that material?

Mr. BARRY. No.

Mr. BARR. At what time did you go to Mr. Spriggs?

Mr. BARRY. If I could, let me just give you a little bit of the history, if I can. I was asked to perform the search, as normally happens. I do the ARMS searches. And during the production of those

documents——

Mr. BARR. You discovered a problem?

Mr. BARRY [continuing]. I discovered what—I didn’t know it was

a problem. I discovered what looked like conversational e-mail between two people and I only saw one side of the conversation.

Mr. BARR. Right. So there appeared to be a gap?

Mr. BARRY. Yes.

Mr. BARR. OK. Now, you wrote an incident report on that, did

you not?

Mr. BARRY. That’s correct.

Mr. BARR. OK. Where is that incident report?

72

Mr. BARRY. I believe it was produced.

Mr. BARR. Do you have that with you?

Mr. BARRY. Yes, I do.

Mr. BARR. OK. Could I see a copy of that, please?

Mrs. CHENOWETH-HAGE [presiding]. Mr. Barr, you’ll need to

wrap your questions up.

Mr. BARR. OK. Forget it, then. We don’t have time.

Mrs. CHENOWETH-HAGE. Thank you.

The Chair recognizes Mr. Souder for questions.

Mr. SOUDER. I thank the Chair.

I had a few questions. First, I wanted to establish, because I

thought it was kind of confusing, but, as I understood—and correct

me if any of these are incorrect—that the number of e-mails,

whether they were a small subset or a large subset, there were 525

people. I think that’s what Mr. Haas said.

Mr. HAAS. Yes, that’s correct.

Mr. SOUDER. Those 525 people that are in doubt here are the 525

people that are at the higher echelons of the White House, not Civil

Service but political appointees?

Mr. HAAS. It is the whole White House organization and some of

their lesser organizations, but to my knowledge it is the White

House.

Mr. SOUDER. In other words, to say it is a small subset is a little

misleading, since this subset happens to be who we were investigating during the period of 1996 to 1998 and whose testimony we

were seeking. So if there were 525 people in the Government who

we most needed, it was these 525, most likely.

Second, my technical understanding of this is that the part that

we’re—the only thing in dispute here, from Mr. Barry, I think, was

whether he expected to see 10 percent and he saw 5 percent. Based

on the number of e-mails just for 1997, if, indeed, it was 5 percent,

it would have been roughly 205,000 for 1997 and would have been

400,000 if it was 10 percent, so it’s not a small number that we’re

talking about. The only question you were really disputing is

whether it is 5 percent or 10 percent; is that right?

Mr. BARRY. No. I don’t think that’s what I said. All I said was

that——

Mr. SOUDER. You said that you expected to see 10 percent.

Mr. BARRY. The numbers that had been thrown out when I first

asked about it when I was involved in the technical meetings in

July 1998, my concern was, if there were these missing e-mails,

what impact was it going to have on the ARMS system when they

became unmissing.

Mr. SOUDER. And you said that there——

Mr. BARRY. And——

Mr. SOUDER [continuing]. Was 5 percent, roughly. You said there

was an increase, but it wasn’t 10 percent.

Mr. BARRY. No, no. I said——

Mr. SOUDER. You said when you went back in to check——

Mr. BARRY. I think I need to clarify this, because when I went

back and looked at the growth numbers between November 1998

and December 1998, which would be the significant ones in this

case, I saw nothing other than what I would normally expect in the

73

growth between 1 month and the other, given the trend line that

we have in place.

Mr. SOUDER. OK. So that’s a different number than what I was

looking for, so my understanding is there has been a dispute between whether it is—what the number is. But we’re talking about

hundreds of thousands of e-mails.

Mr. BARRY. I don’t know that anyone—I certainly don’t know

what the actual numbers are of these e-mails. I have no idea.

Mr. SOUDER. And it was also my understanding, from the earlier

testimony of Mr. Hawkins, that, if I understood you correctly, you

said that you believed that there was a—that they were trying to

cover up, and that there was concern about the Civil Service contract. Could you elaborate on what you meant by that?

Mr. HAWKINS. When I first was contacted, of course, about the

e-mail—and we didn’t know it was e-mail—it was through Jim

Wright, the contracting officer’s technical representative, COTR.

Subsequent to that, I was called to Mr. Lindsay’s office, and at

that time I was confronted by Mr. Lindsay, Mark Lindsay, why I

got involved, and I basically told him because of the contract. It

was very specific in the contract that the COTR gave directions to

the program manager and no one else. And, therefore, I took the

position that I could not support this project and would not do it

without an internal work order, which was compliant with our contract.

At two or three points in the conversation, it got very tense. Matter of fact, Mr. Lindsay said over and over, ‘‘I hope you appreciate

my position here.’’ And I repeated back to him, ‘‘I hope you appreciate my position here.’’

Mr. SOUDER. What do you think he meant by, ‘‘I hope you appreciate my position?’’

Mr. HAWKINS. I took it straight as a strong arm. I took it as a

direct assertion that my employees should go do this work and I

should not be involved.

To the contrary, the contracting officer, which was Dale Helms,

Mr. Jim Wright, gave me explicit instructions when we talked,

‘‘Don’t ‘crater in,’ ’’ and I never did at any time. And I did feel

threatened the whole meeting with Mr. Lindsay.

Mr. SOUDER. When you—do contract employees have any of the

protections that Civil Service employees have? In other words, if

patronage employees come wandering in and intimidate on a contract, you don’t have any protection?

Mr. HAWKINS. No, sir. As a matter of fact, in my conversation

with Mr. Lindsay, I told him that the Northrop Grumman employees would be the ones directly in the line of fire. I also told him

that I was not going to put Northrop Grumman as a company or

Steve Hawkins in direct harm’s way. I also made a statement that

I did not want my company’s name in the newspaper nor mine or

any of my employees.

I was very, very direct with Mr. Lindsay, and he did ask me or

he did make a statement that he was extremely upset—and he

used the word, and I can give you the exact phrase if you want

it——

Mr. SOUDER. Probably not. Can you summarize it?

74

Mr. HAWKINS. OK. And I said that was my position, and we

ended the conversation, at which time I left his office, and immediately, when I went back to my office, Jim Wright was in the office, Dale Helms came in shortly thereafter. Jim Wright asked me

if I cratered in, and I said, ‘‘No, sir, I did not,’’ and he said, ‘‘That’s

why we hired you to work here at EOP, because we knew you

would stand up.’’ Mr. BURTON [presiding]. The gentleman’s time has expired.

We’ll go to a second round, so we’ll get back to you in just a

minute.

Let me clarify one thing before we go to Ms. Chenoweth.

Mr. Spriggs, you said you felt intimidated. I have made this comment to almost—to a number. If somebody perjures themselves before my committee, we will send a criminal referral to the Justice

Department. Now, if that’s intimidation that you feel, so be it. But

I want people to be truthful, and that’s why we always make that

statement.

Ms. Chenoweth.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

I wanted to direct my questions to Mr. Barry.

Just to clarify some of the facts that have been established in the

record, isn’t it true that you noticed two ongoing—outgoing e-mails

from Ashley Raines to Monica Lewinsky and that is what first triggered your concern that there may be an anomaly in this system?

Is that not correct?

Mr. BARRY. That’s correct. And actually that’s what I was—what

I referred to in the document that I had written up in January

1998.

Mrs. CHENOWETH-HAGE. And so then you went ahead and went

on vacation right after that.

Mr. BARRY. No, that’s not correct. January 1998 was when I

first—I was asked to do the search, and I saw this conversational

e-mail during the production of the search documents, of which

there was just one side of the conversation.

I then, as it says in my document, I went and I—the document

I wrote in January 1998—I talked to John Spriggs, first of all, to

have him look at the logs for incoming and outgoing e-mail, and

to—because I didn’t know what was—I don’t know what the problem was, if there even was a problem. I mean, it is a possibility

that the mail never got to the EOP. That was the first thing that

came into my mind.

All I knew was that these pieces of e-mail that I thought should

be there were not in ARMS.

Mrs. CHENOWETH-HAGE. So what you saw that was out of order

was you noticed e-mails from Ashley Raines to Monica Lewinsky,

but that Monica Lewinsky’s e-mails were not present?

Mr. BARRY. Some of—at least one of them or two of them. I can’t

remember exactly. I think it might have been at least two of them,

because it is like a telephone conversation. You could see, you

know, an outbound e-mail saying, ‘‘Can you pick me up after work,’’ an incoming one saying, you know, that should have said, ‘‘Yes, I

will,’’ and then an outbound one saying, ‘‘Oh, great. I’ll meet you

at five.’’ That type of thing. And I didn’t see the incoming, but it

was clear that there should have been something.

75

Mrs. CHENOWETH-HAGE. Now, who did you give this incident report to? You made up an incident report about this?

Mr. BARRY. I documented the problem. Yes.

Mrs. CHENOWETH-HAGE. And who did you give the report to?

Mr. BARRY. I gave it to my supervisor.

Mrs. CHENOWETH-HAGE. And your supervisor was Jim Wright?

Mr. BARRY. Jim Wright. That’s correct.

Mrs. CHENOWETH-HAGE. That has been established. Now, is that

who you would ordinarily refer these problems to?

Mr. BARRY. I’m not sure that—this is a kind of one-of-a-kind

problem, as far as I am concerned. I mean, there have been problems in the past with the Notes-ARMS interface, and I documented

them and passed them on to the appropriate person, who would

have been the branch chief.

Mrs. CHENOWETH-HAGE. The branch chief of——

Mr. BARRY. Of the—either the systems integration and development or the desktop branch chief.

Mrs. CHENOWETH-HAGE. OK. And once you gave this report to

Mr. Wright, what happened to the report?

Mr. BARRY. We—I can’t speak for exactly what happened to it.

All I know is that I kept it and——

Mrs. CHENOWETH-HAGE. Well, let me ask this: did you followup

and ask any questions about the report, and did the White House

office seem interested in the problem?

Mr. BARRY. Well, like I said, I reported the problem to my supervisor, and I remember, although not vividly, that my supervisor

and myself went and briefed the IS&T associate director at the

time, Kathy Gallant, of the problem, but I can’t remember exactly

when that was in the sequence of things, but it was some time in

the January-February timeframe.

Mrs. CHENOWETH-HAGE. Did anyone instruct you to keep the

problem silent?

Mr. BARRY. No.

Mrs. CHENOWETH-HAGE. No?

Mr. BARRY. Well——

Mrs. CHENOWETH-HAGE. When you first went to Ms. Lambuth’s

office, was there a discussion there?

Mr. BARRY. That was subsequent to that. This document was

written in January 1998, and I didn’t hear anything more about

this whole situation until the actual problem that caused what I

had seen back in January to occur was discovered some time in

June. I was brought into the loop of July 1998.

So it wasn’t clear to me—my point is it wasn’t clear to me at all.

In fact, it said—if you read the document, it says in there you can’t

tell if this is a systemic problem, if it’s a one-of-a-kind problem,

etc., I mean, it says it all right in there, because I didn’t know at

that time.

Mrs. CHENOWETH-HAGE. May I ask, for the record, did you give

your weekly reports during this time to Mr. Wright?

Mr. BARRY. I believe so. Yes.

Mrs. CHENOWETH-HAGE. Do you know what he did with those reports?

Mr. BARRY. I have no way of telling what he did with them.

76

Mrs. CHENOWETH-HAGE. Do you know who else saw those reports?

Mr. BARRY. I have no way of knowing.

Mrs. CHENOWETH-HAGE. Mr. Barry, the documents that I reviewed show that you were very, very frustrated about the lack of

instruction or direction that you were getting in this manner. And

I’m going to briefly point out a few of those documents and ask for

your brief comment on them.

I would like for you to turn to the White House exhibit No. 19,

dated January 24, more than 2 months after the problem became

known.

[Exhibit 19 follows:]

77

78

79

Mr. BARRY. Excuse me, ma’am? Exhibit—— Mrs. CHENOWETH-HAGE. White House exhibit No. 19. Do you

have the exhibit?

Mr. BARRY. Yes, I do.

Mrs. CHENOWETH-HAGE. Now, look at the entry under the section

entitled, ‘‘Additional activities.’’ And it reads, ‘‘I continue to be involved in discussions regarding the Mail2 problem, but there has

been no movement thus far on correcting the problems or getting

the data over to ARMS.’’ Correct?

Mr. BARRY. That’s—well, yes, that’s what I said.

Mrs. CHENOWETH-HAGE. OK. Now, look at exhibit—— Mr. BURTON. The gentlelady’s time has expired, but we will yield

to Mr. LaTourette.

Mr. LATOURETTE. I thank the Chair. I would like to yield such

time as she might take for Mrs. Chenoweth to complete this line

of questions, if that’s all right.

Mrs. CHENOWETH-HAGE. I thank the gentleman.

Mr. BURTON. We’ll get the gentleman more time later.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

I would direct your attention to White House exhibit No. 23, an

e-mail from you to your boss dated 8/13/98.

[Exhibit 23 follows:]

80

81

Mr. BARRY. Yes.

Mrs. CHENOWETH-HAGE. OK. In pertinent part, the second paragraph reads as follows: ‘‘I am very concerned about several aspects

of this problem. As far as I can tell, there is no movement underway to fix the problem and recover the lost records from the

backup tapes. When I talk to Sandy Golas and John Spriggs or Bob

Haas, they tell me that there is no movement on this project from

their side and the last activity was the meeting that we had with

Betty before she left on 7/28.’’ Correct?

Mr. BARRY. That’s what I said. Yes.

Mrs. CHENOWETH-HAGE. All right. Later, the document says

that, ‘‘The only people I have been in contact with on this project

are you—’’ that’s your boss—‘‘Kathy, Betty, Sandy, Bob, and John.

I have not spoken to any other Government person on this, and I

am not at all clear what my role should be. I feel the records must

be recreated, and any searches need to be re-performed if the requestors feel it is necessary. This seems like a daunting proposition, but I do not see any other alternative.’’ Correct?

Mr. BARRY. That’s what I said. Yes.

Mrs. CHENOWETH-HAGE. The e-mail concludes—and this is the

same document, in the second-to-the-last paragraph—‘‘I apologize

for the rambling nature of this memo, but I hope it captures my

concerns and frustration level.’’ Mr. Barry, you sound like a real voice in the wilderness. Can you

state for the committee you were frustrated when you wrote those

e-mails?

Mr. BARRY. Yes. I was definitely frustrated.

Mrs. CHENOWETH-HAGE. Would you please turn to White House

exhibit No. 47, an e-mail from Kathy Gallant to you dated September 25, 1998?

[Exhibit 47 follows:]

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83

Mr. BARRY. Yes.

Mrs. CHENOWETH-HAGE. Mr. Barry, in this letter, Ms. Gallant

notes that in her meeting with Joe Vasta, Mr. Hawkins’ replacement, Logicon PM, a subcontractor, and John Spriggs and Jim

Webster, a two-phase strategy was discussed at that time to respond to the problem. But in the second-to-the-last paragraph,

Kathy Gallant observed that ‘‘contracts is aware of this whole mess

and supports the creation of an IWO to clarify what is to be done

and when.’’ And then she concludes, ‘‘Please, no jumping out the window. It

is not necessary.’’ Now, I appreciate the humor here, but why would Ms. Gallant

feel the need to say something like that in a memo?

Mr. BARRY. I’m not sure. Probably in response to my level of

frustration.

Mrs. CHENOWETH-HAGE. All right. I yield back the balance of my

time to Mr. LaTourette. Thank you.

Mr. LATOURETTE. I thank you. I don’t know how much time remains on the clock, so just a couple of quick observations.

Mr. Spriggs, I wouldn’t be intimidated by the referral by this

committee to the Department of Justice. Their performance on

other referrals we’ve made should leave you anything but intimidated. [Laughter.]

And I just want to make a couple of observations, and that is I

want to talk about the two phases of this, sort of for the record’s

sake.

One is we’re not talking about some—an exercise that is not important. And there were two steps. One is you had to fix the problem. I believe it was called ‘‘stop the bleeding,’’ is that right, Mr.

Barry? You had to figure out why incoming e-mails to the White

House were not being captured, and that was done in a fairly

speedy fashion, was it not? You stopped the bleeding, or you believed you stopped the bleeding; is that right?

Mr. BARRY. Well, I was involved only, again, from the ARMS perspective, and I was only involved in the first 2 weeks of technical

meetings starting in July 1996.

The best of my knowledge, the ‘‘bleeding’’ was stopped in November 1998.

Mr. LATOURETTE. OK. But the second problem is that you had

a period of time where e-mails that were not captured by the

ARMS system are still some place out there, and I think that when

Mrs. Chenoweth was talking to you, that was some of the frustration, that no effort—OK, maybe we stopped the bleeding, and

maybe we haven’t, but no effort is being made to retrieve what we

recognize is a whole body of stuff that didn’t make it in the ARMS

system; is that right?

Mr. BARRY. Well, I think the source of my frustration was that

I had been involved for the first 2 weeks starting in June or July

1998 and then had heard nothing after that until November.

Mr. LATOURETTE. Could I just ask one more question?

Mr. WAXMAN. May I ask unanimous consent the gentleman be

given 2 additional minutes and yield at this time.

Mr. BURTON. Thank you. Without objection, so ordered.

Mr. LATOURETTE. I appreciate the courtesy.

84

I just wanted to point out—and anybody on the panel can answer

this—the reason that this is important—and there has been some

criticism from the White House that, you know, you goofy Republicans want us to spend a lot of money and recreate stuff from files

that are locked up, and it’s going to cost us a lot of dough to do

this.

You have to, under the law, not only the Armstrong decision but

the Federal public records law, take these e-mails that have not

been captured by ARMS, put them in the ARMS system, so that

they may be responsive to those who may seek these public documents in the future. Isn’t that the law?

Mr. BARRY. I’m not really a legal person, but—— Ms. LAMBUTH. Well, let me ask somebody else. Any of you aware

of the public records law? Mr. Haas, how about you?

Mr. HAAS. I have just recently been told that. I did not know

that, but it makes sense.

Ms. LAMBUTH. Well, I think it does make sense, and I would tell

you that I’m not a legal expert, either, but I believe that there’s a

case called Armstrong v. the Executive Office of the President that

extends Federal recordkeeping mandate to electronic mail. And the

reason that you have the ARMS system is so that the electronic emails can be captured, and when somebody like a court or a committee of Congress wants them, you can search by, you know,

Lewinsky or Filegate or whatever the case may be and pull them

up and you don’t have to go through the laborious process that Mr.

Haas apparently went through.

And so somebody has to do this, anyway, or else the White House

is out of compliance with Federal law and the Armstrong decision.

Does anybody disagree with me? Is that a fair observation?

[No response.]

Mr. LATOURETTE. OK. I’m going to take silence as assent, which

is always a dangerous thing.

In the next round of questioning I want to come back—I hope

we’re going to have another round, Mr. Chairman—and, Mr. Hawkins, I want to talk to you specifically about—where did Mr. Hawkins go?

OK, Mr. Hawkins will be back shortly.

Mr. LATOURETTE. Well, maybe Mr. Hawkins doesn’t want to talk

to me, but I want to talk to Mr. Hawkins about the meeting that

took place with Mr. Lindsay and Ms. Crabtree.

Ms. Golas, you’ve sort of been ignored here for the last 3 hours,

and I want to talk to you about your experiences and your specific

recollections.

I thank you, Mr. Waxman, for the courtesy, and yield back.

Mr. BURTON. We will go to a second round.

I want to tell the panel and the Members we would like to finish

with this panel and then break for lunch. I hope we will be concluding more quickly, but there seems to be additional questions

that are coming up that have to be addressed, so if somebody has

to go to the bathroom or something—if you all do, we can take a

5-minute recess, but we’ll break for lunch as soon as we finish this

panel.

Mr. Barr.

Mr. BARR. Thank you.

85

Mr. Barry, during the break I consulted with our counsel here.

We don’t have a copy of your incident report. That apparently has

not been furnished to us. Could we have a copy of that, please?

Mr. BARRY. Yes, sir.

Mr. BARR. Was a copy of your incident report provided to—— Mr. YOUNG. It was produced, Congressman.

Mr. BARR. Pardon?

Mr. YOUNG. It was produced.

Mr. BARR. And who are you?

Mr. YOUNG. I’m counsel to the Office of Administration, Congressman.

Mr. BARR. OK. And what is your name?

Mr. YOUNG. John Hardin Young.

Mr. BARR. OK. And you are employed by the White House?

Mr. YOUNG. No, I’m not.

Mr. BARR. Who employs you and who are you retained by?

Mr. YOUNG. Director of the Office of Administration.

Mr. BARR. The what?

Mr. YOUNG. Director of the Office of Administration.

Mr. BARR. The Office of Administration.

Mr. YOUNG. Executive Office of the President.

Mr. BARR. OK. And you are employed by—— Mr. YOUNG. The Office of Administration, the Executive Office of

the President.

Mr. BARR. White House?

Mr. YOUNG. No. The Office of Administration of the Executive

Office of the President.

Mr. BARR. Is that an agency of another government? I mean, I

don’t know. I appreciate the fact that you are an attorney and so

forth. I’m just trying to find out—are you employed by the administration, by an agency of the administration of the White House?

Mr. YOUNG. The Office of Administration was created by the Reorganization Act of 1977. It is an agency within the Executive Office of the President.

Mr. BARR. Which is the White House, the administration.

Mr. YOUNG. I’ll leave that for your conclusion, sir.

Mr. BARR. Thank you. That is my conclusion.

Was a copy of the incident report that is being copied now provided to you—by you, Mr. Barry, to the White House counsel’s office?

Mr. BARRY. It wasn’t provided by me to them. No.

Mr. BARR. It was not? OK. Did they receive a copy of it at some

point? Do you know?

Mr. BARRY. I don’t know, sir.

Mr. BARR. OK. Do you know even today whether they received

a copy of it or whether they have a copy of it?

Mr. BARRY. I don’t know.

Mr. BARR. Did you provide them a copy of the Lewinsky e-mail

or e-mails that were in question?

Mr. BARRY. I provided to them back in 1998 all of the e-mails

that hit on the search that I was running against the ARMS system.

Mr. BARR. Including the ones that we’re talking about here today

that sort of triggered this whole thing?

86

Mr. BARRY. Yes. The outbound ones, yes. That’s all I had access

to.

Mr. BARR. At that time, were there pending proceedings in the

Congress with regard to these matters?

Mr. BARRY. I have no idea. I don’t know.

Mr. BARR. OK. And when was this?

Mr. BARRY. It was January 1998.

Mr. BARR. 1998. OK. I think the record will reflect that there

were at that time. And certainly subsequent you are aware of the

fact that there were matters before the Congress which at least two

different committees of the Congress—the Judiciary Committee in

impeachment proceedings and the Government Reform and Oversight Committee—were investigating regarding Ms. Lewinsky and

the other types of matters that we’re talking about here today?

Mr. BARRY. I was aware that the impeachment was proceeding,

yes, or the impeachment process.

Mr. BARR. And you were aware that, at various points in time

during the period 1988 [sic] and 1999, this committee of the Congress also was investigating various matters regarding the President?

Mr. BARRY. I wasn’t aware of that. I mean, I don’t know. I

don’t—— Mr. BARR. OK. Is it your testimony that, even as you sit here

today, you’re not aware of that?

Mr. BARRY. I’m not exactly sure what the question is. I mean, I

don’t know what’s going on in Congress all the time.

Mr. BARR. A lot of us up here don’t, either. I certainly wouldn’t

hold you to that standard.

My concern is—and I think both counsels know what our concern

here is, and that is with regard to obstruction of justice, which includes intimidation of witnesses, although some of the Federal statutes don’t require that a pending proceeding actually be—or that

a proceeding actually be pending. Various other provisions of Title

18 do, with regard to obstruction.

I think the record will reflect that those that caused the intimidation or the feelings of intimidation—the pressure, the threats,

however you all want to characterize them, or however a prosecutor might want to characterize them—in fact took place in the context of pending proceedings.

These are all matters—and I know Ms. Hall is here in the audience, although has not been called as a witness, but I believe she

also would testify that these matters were those under consideration, and very likely were the—perhaps the reason behind the

pressure, the intimidation, or the tactics used by Mr. Lindsay and

others, and that it was not simply to protect all of us from the

media.

I suppose we’ll get into this later. I know Mr. Lindsay will be

here, but I appreciate—although Ms. Hall is not a witness, I appreciate her taking the time to be here so that she can benefit from

the testimony also.

Thank you.

Mr. BURTON. The gentleman’s time has expired.

Mr. Mica.

Mr. MICA. Thank you, Mr. Chairman.

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I want to thank the witnesses. Let me just say, before I start

some questions, that we appreciate your coming forward and also

cooperating with us, the committee. Unfortunately, we’ve had a history, as you’ve heard some of the other Members refer to, of trying

to conduct investigations and oversight, which is our responsibility,

and I think one that goes to the heart of really our structure and

system of government being so successful that there is continually

oversight by Congress looking at what the executive branch is

doing.

As you’ve also heard, we’ve had a lot of difficulty. Sometimes we

get pieces of the puzzle. We’ve had over 120 witnesses either flee

the country or take the fifth amendment. We’ve gone down different paths, as you’ve read in the paper, only to find that documents disappear, and suddenly sometimes reappear and never appear, so we don’t get the whole picture. And it does give us great

concern when we hear of missing e-mails, and there may be some

legitimate technical explanations for those documents not being

produced, but it does raise us questions.

The major question I have is—and some of this has been alluded

to—all of you that were involved in this process were aware that

there was an independent counsel, there were congressional investigations seeking materials. Is that correct?

Ms. Lambuth, maybe we could start with you. You were aware

of that?

Ms. LAMBUTH. Yes, I was.

Mr. MICA. And you were aware of that, Mr. Spriggs?

Mr. SPRIGGS. Yes, I was aware of it.

Mr. MICA. And the rest?

Mr. HAAS. Yes.

Ms. GOLAS. Yes.

Mr. HAWKINS. Absolutely.

Mr. BURTON. My next question would be: was there any—were

you under the belief that there was any intent to stop any of this

information from being revealed or being provided, either to this

committee or to the independent counsel or anyone else who was

seeking it? Do you think there was any attempt?

Ms. LAMBUTH. Well, as I had mentioned a little earlier, yes, I do

believe. Initially we felt that they just wanted to figure out how

they were going to let the public know that additional mail messages were found. I later, for sure—and I thought the rest of the

team had, but I definitely felt, through the stalling and, as was

pointed out a few minutes ago, Mr. Barry even felt that there was

some stalling going on in revealing these other documents, and

that nothing was being done on this particular project as far as

where do we go now, what the next direction should be, getting the

equipment in, and I do—I definitely do feel that there was some

stalling.

Mr. MICA. Well, do you feel this was sort of an evolutionary sort

of getting to a stall? Was it—Mr. Spriggs, you are shaking your

head yes and no.

Mr. SPRIGGS. The question of a stall, we were all frustrated by

the complexity of the technical problems that are required to fix

this. The——

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Mr. MICA. But once you—OK, there’s the first part of being technically able to provide this. And at what point was that reached?

Was that a few months afterwards, or is this still——

Mr. SPRIGGS. From my point of view, it hasn’t stopped yet, sir.

Mr. MICA. It hasn’t stopped yet?

Mr. SPRIGGS. Yes. I mean, there continues to be technical issues.

When we have meetings, and when we—when the White House

was informed that there was going to be this newspaper article

that came out, we gathered to talk about what we were going to

do to solve this problem. Let’s get the technical heads together and

let’s talk about, you know, what’s going on. And we began again

to talk about the technical issues.

Obviously, we got sidetracked because of the article that came

out and the discussions of time lines, but the technical issues,

themselves, continue to be knotty, difficult problems.

We had——

Mr. MICA. So you’re saying before the committee today that you

still aren’t able to produce these e-mails as of today?

Mr. SPRIGGS. As of today we cannot.

Mr. MICA. You cannot. And we had Mr. Haas testify that he did

search for certain e-mails and found—you said you had 500 of one

and a bunch of another on a matter; is that correct?

Mr. HAAS. That’s correct. That was a manual search, just as you

would look through your own mail file. That’s not acceptable to

ARMS. The return is literally you see a screen full of documents.

Of course, you can print them, but even that——

Mr. MICA. When you got that information, you gave it to who—

that you had some of this information?

Mr. HAAS. The Monica Lewinsky printouts? That went to——

Mr. MICA. Whatever you found.

Mr. HAAS. Yes. That went to Betty Lambuth.

Mr. MICA. And then you——

Ms. LAMBUTH. I gave the Monica Lewinsky printouts to Mark

Lindsay.

Mr. MICA. And you don’t know what happened to them afterwards?

Ms. LAMBUTH. No. And any of those e-mails can just be printed

out.

Mr. MICA. But somehow you had the feeling that this went beyond just not being technically able to acquire the information to

a different phase; is that correct?

Ms. LAMBUTH. Yes, I did. Again, because I could never get my

questions answered as being a supervisor so I could give direction

to my team, I couldn’t get answers to questions that I had. As I

had mentioned previously, I was removed from the contract. I was

one of the people that had history on this particular Project X, and

nothing was done by the Government people that knew I had this

information and to continue to do the continuity of guidance——

Mr. MICA. At what point were you removed?

Mr. BURTON. I’m sorry. The gentleman’s time has expired. We’ll

come back for a second round, Mr. Mica. We’ll come back in just

a little bit.

Mr. Hutchinson.

89

Mr. MICA. Can she answer at what point she was removed, just

so we have a complete record?

Mr. BURTON. What’s that again?

Mr. MICA. At what point she was removed was the question.

Mr. BURTON. At what point were you removed?

Ms. LAMBUTH. I was removed in July.

Mr. BURTON. Of?

Ms. LAMBUTH. 1998.

Mr. BURTON. 1998.

Mr. MICA. Thank you.

Mr. BURTON. Mr. Hutchinson.

Mr. HUTCHINSON. Thank you, Mr. Chairman.

I want to look back and sort of put this in context, or examine

it in that sense, all that was happening in 1998 whenever you were

concerned about the searches and the technical problems.

In January 1998—you all read the newspapers? I mean, it was

an explosive atmosphere. You had the public stories about the independent counsel, about Monica Lewinsky, as to what was going to

be leading up to August 1998, and during that time you were told

to conduct these searches based upon certain subpoenas.

Now, did anyone see the subpoenas, or were you all just told this

is what you need to search for?

Mr. HAAS. When we get subpoenas—if these are subpoenas that

we’re getting, an e-mail is circulated through to all of the EOP, and

it just basically states the fact that they’re looking for documents

related to, in the case of Monica Lewinsky, Monica Lewinsky, and

please produce them. We don’t see the physical subpoena in its true

written format.

Mr. HUTCHINSON. Do they explain to you in that directive as to

who issued the subpoena, whether it be the independent counsel or

grand jury or a committee of Congress?

Mr. HAAS. I don’t recall reading any information pertaining to

that. It may state that in the beginning, but I cut to the chase and

try to find the information.

Mr. HUTCHINSON. But you knew that you were trying to comply

with subpoenaed information, either from the independent counsel

or for some other body?

Mr. HAAS. When I personally receive one, yes, but again I state

we don’t search our mail files, ourselves. That is theoretically done

automatically, and in this case it was missed because of the glitch.

Mr. HUTCHINSON. But you felt concerned about it at some point

when you understood the glitch, that you went through manually

to see what you could find in some files.

Mr. HAAS. I was requested to specifically look for Monica

Lewinsky in these specific mail files. I was directed to do that.

Mr. HUTCHINSON. Who directed you to do that?

Mr. HAAS. Betty Lambuth presented me with a note with some

names on it that was given to her by someone, and I proceeded to

follow that note. And then, at a later point, they suggested I look

in Ashley Raines and Betty Currie’s mail file, and that’s when I

found the documents, within minutes of being handed the note.

Mr. HUTCHINSON. And you provided those documents to Ms.

Lambuth?

90

Mr. HAAS. Well, initially I just reported the findings, and then

after that I was—she took that information and went wherever she

goes with it. They came back later and asked me to please set up

a work station that I could print those on paper and present them

to her. Yes.

Mr. HUTCHINSON. Ms. Lambuth, you received this information.

What did you do with it?

Ms. LAMBUTH. When I received this information, I either gave it

to Ms. Crabtree or Mr. Lindsay.

Mr. HUTCHINSON. And you—— Ms. LAMBUTH. And I don’t remember in which case I gave what

information to whom, except I know I took Monica Lewinsky’s over

to Mr. Lindsay at the old Executive Office Building.

Mr. HUTCHINSON. And did you believe that these searches were

important?

Ms. LAMBUTH. I’m sorry?

Mr. HUTCHINSON. Did you believe that these searches that you

were doing were important?

Ms. LAMBUTH. Yes.

Mr. HUTCHINSON. You knew that they had some legal impact because you were complying with a subpoena?

Ms. LAMBUTH. Correct.

Mr. HUTCHINSON. And there are two issues here. I mean, one,

you’ve got to fix the technical problem. You’ve got to comply with

the law in terms of the public records, and then you also have subpoenaed information in an investigation that is going on by the

independent counsel.

Was this part of the reason that you were going to Starbuck’s to

meet? I mean, this was not simply an ordinary technical problem;

am I correct?

Ms. LAMBUTH. That is correct.

Mr. HUTCHINSON. Now, did you ever consider a broader responsibility? I mean, you were told and basically threatened by the— Mr. Lindsay that—‘‘Don’t talk about this.’’ Did you believe that you

might have a broader responsibility to the public to mention this

to someone?

Ms. LAMBUTH. Yes, I did. As I said, though, I was only on this

project for a short period of time. I had some knowledge, because

I guess it was basically 6 weeks that they left me on the project

before they removed me. They removed me from that project.

But——

Mr. HUTCHINSON. Was this the nature of some of the discussions

at Starbuck’s? And I’ll go to someone else, if you want to comment

on this.

Ms. LAMBUTH. Most—yes, most of our discussions were over in

the park. We went to Starbuck’s a couple of times. But it was basically how are we going to handle these issues. When we found out

other bits of information, what was our next approach going to be?

How was the best way to handle it? What kind of information did

we need to turn over and ask the Government for?

Mr. HUTCHINSON. Let me interrupt you there—and anyone else

can comment on this. The people who participated in these meetings in the park where you had discussions about, one, you had a

technical problem. And I’m interested also just as to what the

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thinking was at that time. Was there concern about the public interest, about the independent counsel and whether this is a coverup? Was there any discussions about that as to the seriousness of

this matter and the importance of it?

Mr. HAAS. That was not typically the purpose of our meeting out

there. We would go offsite to the park, as she mentioned, to have

technical discussions. And I don’t believe at any time during any

of the offsite meetings we discussed the fact that the public wasn’t

going to be made aware of this. We were really working the technical detail of the problem. We weren’t out there having offsite discussions about the global problem. We were fixing specific details.

Mr. HUTCHINSON. Does everybody agree with that?

Ms. GOLAS. Yes. We weren’t provided any place that we could go

to work, and so this was our place where we would go to have discussions. We didn’t have any equipment, so we really couldn’t do

a whole lot of testing, so it was really difficult for us to come away

with any conclusions in any one period of time, so we had a number of meetings.

Mr. HUTCHINSON. I yield to Mr. Souder for—— Mr. BURTON. The gentleman’s—— Mr. SOUDER. But it is important, because earlier on the record

they all said that they privately had speculated about the things

that Mr. Hutchinson is asking.

You said you had private discussions speculating about what was

in these documents, whether these documents might be called, and

you all pretty much said that earlier.

Mr. SPRIGGS. Just to clarify, we were not ignorant of the things

that were going on around us, but the focus of our attention—I

mean, we are there to solve a technical problem, but we are not

ignorant of or ignoring the broader implications of these things. It

is that, from our point of view, we are—we have a certain function

to provide here, and I don’t give counsel to the President and I

don’t—you know, those broader issues are Government issues. It’s

Government’s responsibility to do certain things. And they tasked

me to do specific technical things for them. They don’t ask me, they

don’t hire me to be a consultant in a broader context, as you seem

to be expressing.

Mr. BURTON. We’ll have another round in just a moment.

Mr. HUTCHINSON. Thank you, Mr. Chairman.

Mr. BURTON. Yes. We’ll come back in just a few minutes.

Mr. Waxman.

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

I want to make several observations about the testimony so far.

There are times when members of this panel are hoping for specific testimony to be delivered, but we can’t reach conclusions based

on what we hope you’ll say. We’re limited, or we should be limited,

by the facts. The facts are some things we know and some things

we are hearing from you to illustrate for us what the facts are.

I think one objective fact is that there is a disagreement among

members of this panel as to whether jail was threatened. It is clear

to me that Mr. Haas honestly believes that it was said to him that

he could go to jail if the information were made public. Others

don’t recall it, but—— Ms. LAMBUTH. I recall it. I stated for——

92

Mr. WAXMAN. Excuse me. I didn’t say that you didn’t. I said some

people recall it, others do not recall it. Let me just put it this way:

some of you think that you were threatened with jail if you told

the information, others don’t. Ms. Lambuth certainly does. Mr.

Haas sincerely believes it. As I understand, Ms. Salim doesn’t recall it.

Ms. Golas, what was your testimony?

Ms. GOLAS. I believe that they used the word ‘‘jail’’ in reference

to not complying.

Mr. WAXMAN. Is it fair to say that what all of you do understand

is that Mr. Lindsay wanted to keep this matter quiet? Is that a fair

statement? Does anybody disagree with that?

[Heads nodding affirmatively.]

Mr. WAXMAN. OK. You’re all shaking your head.

Mr. HAWKINS. That’s correct.

Mr. WAXMAN. OK. Now, Ms. Lambuth has said that she thinks

the e-mails involved Filegate, campaign finance abuse, sale of Commerce Department trade secrets, improper activities by the President. Is that right, Ms. Lambuth?

Ms. LAMBUTH. That’s correct.

Mr. WAXMAN. And she also said her source for that information

was Mr. Haas. Now, Mr. Haas has denied ever telling her that the

e-mails involved Filegate, campaign finance abuses, sale of Commerce Department trade secrets, etc. Is that right, Mr. Haas?

Mr. HAAS. That’s correct.

Mr. WAXMAN. OK. So we have a conflict of testimony as to that

whole issue.

Now, on the question of the White House response, Ms. Lambuth

seems to disagree with everyone else on the panel about whether

Mr. Lindsay was dragging his feet.

Ms. Lambuth, you were terminated by Mr. Hawkins in July

1998.

Mr. HAWKINS. That’s not correct.

Mr. WAXMAN. She was not terminated in 1998?

Mr. HAWKINS. No, sir, she was not. Northrop Grumman does not

terminate our subcontract employees. I removed her from the contract for several reasons, not just this one reason.

Mr. WAXMAN. What were the reasons?

Mr. HAWKINS. Failure to follow management directives, failure to

stay within compliance of the contract, failure to be able to work

cohesively with her direct manager.

Mr. WAXMAN. And that was July 1998?

Mr. HAWKINS. Yes, sir, it was.

Ms. LAMBUTH. I was threatened not only by the Government—

I mean, I was threatened two different ways. I was threatened that

if I did talk I would end up in jail and be fired—be fired and end

up in jail, and I was also threatened by Mr. Hawkins that if I

didn’t talk to him that I would be removed from the contract and

he would try to get me removed from CEXEC.

Mr. HAWKINS. Can I respond to that? That is absolutely untrue,

absolutely, positively untrue. She was never threatened with her

job. I cannot do that. That was not within my roles and responsibility. Her manager and I had several conversations prior to this

event about removing her from the contract, and that is for the

93

record—several discussions. So this was just the straw that broke

the camel’s back.

When Ms. Lambuth was called back to EOP the evening that I

found out, she did not want to come back. I asked her to come

back.

Ms. LAMBUTH. That is not correct.

Mr. HAWKINS. Let me finish, please.

Ms. LAMBUTH. Sorry.

Mr. HAWKINS. I then very specifically asked her what was going

on. She told me she could not do that. I reminded her of our responsibilities as contractors to the U.S. Government that the COTR

and only the COTR could direct our work force, and that had to

come through the program manager.

Under no circumstances was she told that she was going to be

fired or terminated. That was never said.

Ms. LAMBUTH. I disagree with that, obviously.

First of all, I talked to Sandy before I ever talked to Steve, and

I told Sandy just to hang tough, I was on my way back. Then I

talked to Mr. Hawkins and told him I was on my way back.

Mr. WAXMAN. Let me ask——

Ms. LAMBUTH. When——

Mr. WAXMAN. Excuse me, because my time is just about over and

the chairman said he’s going to indulge me because we’ve indulged

other Members with a few extra minutes, but what I don’t understand, Ms. Lambuth, is you thought you were being told you were

going to go to jail if you made any information public, but you also

said you thought that the White House was trying just to correct

the problem and then later you reached a different conclusion.

That sounds to me somewhat inconsistent. Can you clarify that?

Ms. LAMBUTH. No. What I said was that we were threatened that

if any of us talked we would lose our jobs, we would be arrested,

and we would go to jail, and I truly believed that.

Mr. WAXMAN. But you thought the White House——

Ms. LAMBUTH. In the beginning—may I finish?

Mr. WAXMAN. Yes, but you thought the White House——

Ms. LAMBUTH. In the beginning——

Mr. WAXMAN. But you thought the White House was——

Ms. LAMBUTH [continuing]. When I started working with Mr.

Lindsay on this project, we and I, myself, but the team really felt

that they were trying to come up with a method of introducing this

to the public. I did state—and I still believe it to this day—that

they started dragging their feet for any of this to take place, to reveal to the public that this was—in fact, that these e-mails had

been found and to allow us to come up with a way to produce these

e-mails.

Mr. WAXMAN. Just for the record, if you left in July 1998, you

weren’t there when presumably you think the White House was

dragging their feet——

Ms. LAMBUTH. No. They were dragging their——

Mr. WAXMAN [continuing]. Because that was afterwards.

Ms. LAMBUTH [continuing]. Feet before I left, because I couldn’t

get any answers on this particular project.

Mr. WAXMAN. Thank you.

94

Mr. HAWKINS. Mr. Waxman, could I elaborate one point? To collaborate the truth of any statements, Ms. Kathy Gallant can substantiate our conversations between Ms. Gallant and myself about

the reasons Betty was removed from EOP.

Mr. BURTON. OK. Thank you.

Mr. LaTourette, I have not used my first round after the initial

30 minutes. I will yield to you because you have to go manage the

floor. You’re going to be managing the floor on the House?

Mr. LATOURETTE. Thank you. I——

Mr. BURTON. So we’ll yield to you for your second round, then I’ll

come back and do my first.

Mr. LATOURETTE. I thank everyone for the courtesy. I have to go

preside over the budget proceedings at 2.

We sort of diverted into a discussion about why Ms. Lambuth—

I don’t care, to be honest with you.

I would like to go to Ms. Golas for a minute. You don’t appear

to be—having watched you here—the insubordinate type, and so

I’m curious about how it is you reached the conclusion to be in a

position where your supervisor, Mr. Hawkins, considered you to be

insubordinate. Could you describe that? How did that happen?

Ms. GOLAS. Well, I came out of a meeting. I was in my office

working on a problem. The COTR came in and—with another one

of the Government workers. We had a problem that I had been

working on simultaneously, and he started to ask me what was

going on, and I said, ‘‘I’m working on a couple problems.’’ And he

said, ‘‘Well, I need you to stop and fix this.’’ And I said, you know,

‘‘I’m working on these other things, too.’’ And he said, ‘‘Well, what

are you working on?’’ So I explained to him that I was working on

another something else, and something I couldn’t go into any details with him.

And then he got really abrupt and said, ‘‘Tell me what you’re

working on.’’ I said, ‘‘I’m not at liberty to say anything.’’

So he said, ‘‘I want you to go down—come right down with me

to Steve’s office.’’ So he followed me down—so I followed him down

to Mr. Hawkins’ office, at which point he tried to explain to Mr.

Hawkins what was going on, and then he—of course, Steve didn’t

have any idea. Nobody had any chance to really say anything.

And the next thing you know, Steve was yelling at me because

the COTR was trying to give me orders to do something and I’m

confused and perplexed. I was doing, I felt, what was, I believed,

investigative work for a problem. I didn’t believe it was out of

scope. I felt uncomfortable that the COTR was in my office trying

to give me direction.

And so now I’ve got the COTR, who I’m not supposed to tell what

I’m doing, and I have Steve standing in front of me yelling at me,

and I just finally—he said, you know, ‘‘You’re bordering on being

insubordinate.’’ And I just said, ‘‘Well, if it’s a choice of being insubordinate or going to jail, I guess I’ll be insubordinate.’’

Mr. LATOURETTE. OK. And that’s what I want to get to, that you

felt compelled, as a result of this set of circumstances, to say,

‘‘Look, I don’t want to be insubordinate, but if I’ve got to choose between being insubordinate to you or going to jail, I am going to

take being insubordinate to you.’’

95

And how did you—you came to that conclusion as a result of the

conversations that you would have had with Ms. Crabtree and Mr.

Lindsay?

Ms. GOLAS. Yes.

Mr. LATOURETTE. You were concerned and fearful that if you discussed with—— Ms. GOLAS. I was very concerned. I’ve worked in environments

before where things were classified.

Mr. LATOURETTE. Right.

Ms. GOLAS. It’s not necessarily all for your manager if he doesn’t

have the same classification to know everything that you were

doing all the time.

Mr. LATOURETTE. Right.

Ms. GOLAS. So I didn’t find it unnatural to be in this kind of a

situation.

Mr. LATOURETTE. OK. And I—have I misread you? I don’t— you’re not the insubordinate type, are you? This was a tough spot

for you to be in, wasn’t it?

Ms. GOLAS. No. I’m not usually, I don’t believe.

Mr. LATOURETTE. OK. Well, Mr. Hawkins is shaking his head,

too, so I guess we’ll take that that you’re not.

Mr. Hawkins, that takes me to you. Obviously, you then became

concerned as a result of this, and maybe some other things that occurred, and concerned enough to go see Mr. Lindsay and Ms.

Crabtree?

Mr. HAWKINS. I was summonsed to Mr. Lindsay’s office by Mark

Lindsay.

Mr. LATOURETTE. OK. And was this the subject of the conversation—that is that, you know, ‘‘Hey, what, in fact, is going on? The

people that are under my supervision are saying they can’t talk to

me?’’

Mr. HAWKINS. I’ll characterize it as they wanted to know why I

interfered. Ms. Laura Crabtree was in the room at first, and she

basically accused me of interfering.

Mr. LATOURETTE. And let me stop you there. When you talked

to the majority staff, I believe, you recall a comment being made

to you by Ms. Crabtree that everything was fine before you stepped

in.

Mr. HAWKINS. Absolutely.

Mr. LATOURETTE. Is that a direct quote from Ms. Crabtree to

you?

Mr. HAWKINS. That was a direct quote.

Mr. LATOURETTE. OK. And at this time were you aware what the

problem was, that there was this e-mail e-server problem?

Mr. HAWKINS. No, sir. I didn’t have any idea, other than I had

a COTR breathing down my neck, I had a CO—the contracting officer—telling me to stay in bounds of my contract. And, first of all,

as I told Mr. Lindsay, my contract was with the U.S. Government

and it was not with Mr. Lindsay nor was it with Ms. Posey.

Mr. LATOURETTE. Did you ask either of these folks if they had

threatened these employees with jail, and, if so, why?

Mr. HAWKINS. I did not go into that at that time. No.

Mr. LATOURETTE. OK. I thank you very much.

Mr. HAWKINS. Right.

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Mr. BURTON. Did you go into it at any time with them?

Mr. HAWKINS. No. After I stood my ground with Mr. Lindsay, we

didn’t talk.

Mr. BURTON. You never said anything to them about the threats?

Mr. HAWKINS. I did say it to Jim Wright, the COTR.

Mr. BURTON. And what did you say to him?

Mr. HAWKINS. I told him I didn’t like the employees being threatened. I also mentioned it to——

Mr. BURTON. How was your understanding that they were being

threatened?

Mr. HAWKINS. Well, Mr. Bob Haas, when he came down to the

office with Sandy—and I’ll go on the record, Sandy would never

have been cited for insubordination. She was put in a very difficult

situation. But Mr. Haas was the person who told me that these emails were very important to the political and the subpoena issues

going on at the time, and I personally had the discussions with

Dale Helms, the contracting officer, and Jim Wright in telling them

that I felt, because of the importance of the subpoenas that we had

been requested to turn over all our documents pertaining to the

President and Monica Lewinsky, that this could lead to further

problems for Northrop and our employees. And I stood my ground.

Mr. BURTON. So you told him, ‘‘I don’t want you threatening my

employees?’’

Mr. HAWKINS. Absolutely.

Mr. BURTON. OK. But you knew that there had been a threat of

jail?

Mr. HAWKINS. That came from Mr. Bob Haas. I did not—I have

no personal knowledge of the threats being given to them by either

of the parties.

Mr. BURTON. But you heard that from Mr. Haas?

Mr. HAWKINS. Yes, sir.

Mr. BURTON. Mr. Haas, did you ever go to the office of Sheryl

Hall to discuss Project X?

Mr. HAAS. Yes, sir.

Mr. BURTON. Did you ever tell Sheryl Hall that you were afraid

for your life?

Mr. HAAS. Afraid for my life? No. Afraid of going to jail, yes.

Mr. BURTON. You never told her you were afraid or feared for

your life?

Mr. HAAS. No, sir.

Mr. BURTON. OK. Did you ever provide her with any documents

relating to Project X?

Mr. HAAS. Yes, sir.

Mr. BURTON. And why did you——

Mr. HAAS. She had requested.

Mr. BURTON. She requested the documents?

Mr. HAAS. Yes. I—in a working relationship such as we’ve had

around the EOP, this was after the disclosure of—with Northrop

Grumman’s lawyers and more or less pulled us out of the point

where we didn’t have to believe we were under threat of jail, and

Laura Crabtree had departed. Sheryl had asked me some questions

and called me to her office and was asking about this because it

seemed to be falling back under her purview, if you will.

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At that point in time, she asked me for copies of the list, which

is the 525 typed list, and I gave her what I had.

Mr. BURTON. So you gave her, what, 525—— Mr. HAAS. This list that is here—— Mr. BURTON. But she asked for the list and you gave it to her?

Mr. HAAS. Yes.

Mr. BURTON. OK. Did you ever save any search responses or

records on another electronic media, such as a zip drive?

Mr. HAAS. Just the stuff I saved for the people with the subpoena

right now last week. I’ve never saved it on a zip drive for anybody.

Mr. BURTON. Never saved it on a zip drive or any kind of electronic device that you might have had at home or something?

Mr. HAAS. No, sir. I don’t have a zip drive—I have a zip drive

at home that is currently broke, but I don’t have any—I just recently got a zip drive at work to record these documents last week,

but I don’t—— Mr. BURTON. The one at home, though, doesn’t have any information on it?

Mr. HAAS. No, sir.

Mr. BURTON. And you never took any information home with you

or anything and kept it?

Mr. HAAS. No, sir.

Mr. BURTON. Did you ever offer to Sheryl Hall—— Mr. HAAS. I did not have that computer at the time this happened, by the way.

Mr. BURTON. OK. Did you ever offer to Sheryl Hall that she

could view any of the search results from searches that you performed?

Mr. HAAS. No, sir.

Mr. BURTON. You never did?

Mr. HAAS. No, sir. The documents in which I searched—as I related to you, I read those two documents. The rest of it was turned

over in paper format and went to wherever it went.

Mr. BURTON. So you never offered Sheryl Hall that she could

read any of the search results from the searches you performed?

Mr. HAAS. No, sir.

Mr. BURTON. Did you ever tell Sheryl Hall anything to the effect

that if the results of the e-mail searches became known, the results

of the investigations would be different and other people would go

to jail?

Mr. HAAS. No, sir. If anything related to that, we may have had

conversation, as we commonly did in her office, that if any of the

stuff that was subpoenaed, like Filegate and that, were to show up

in the search after all the documents were unloaded into the ARMS

system, that it would be a real boondoggle, or something like that,

but it was conjecture. It was not matter of fact. I know of no documents that exist in that format.

Mr. BURTON. Does any e-mail actually reside on the PCs of the

White House users, or does it all actually reside on the servers?

Mr. HAAS. There was at one point, right prior to finding the problem—we were running out of disk space on Mail2. There was an

active project to replace Mail2 for improved disk space. And at that

point in time, a group of programmers that worked with me would

put together a methodology for archiving these huge files that were

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on the server to their local C drive and then deleting some of the

mail off of the server copies so that they could still have their

more-or-less referential copy available to them.

Mr. BURTON. But the vast majority was on the outside server,

not on the PCs, right?

Mr. HAAS. That’s correct. One of the very first things that happened when we discovered this issue about the non-records management was I suggested that they stop immediately allowing people to archive to their hard drive, because that followed with deleting the documents off the server, and I didn’t want that to happen,

either.

Mr. BURTON. Therefore, if someone searched their PC in response

to a subpoena, they wouldn’t capture any of the e-mail that was on

the Mail2 server; is that correct?

Mr. HAAS. Other than those people that had made archived copies on their machine, which there were a few, that should have

searched it, as well as part of the requirement, they would not normally search their server.

Mr. BURTON. So the fact of the matter is, then, that there is a

lot of this that was not on the personal PCs that these people have;

it’s all on that outside server.

Mr. HAAS. Yes. I would say 98 percent of it is on the server.

Mr. BURTON. OK. I thank the gentleman.

Who is next? I think Mr. Souder.

Mr. SOUDER. Thank you.

I have a couple of followups that I have been trying to keep track

of.

Mr. Haas, you said early on that, when you had done the Monica

requests on downloading her PC, that it would require special programming to cross-reference, that that was a very complicated

thing and that it would require special programming?

Mr. HAAS. To search more than one file at a time would take programming. Yes, sir.

Mr. SOUDER. And, as I understood, you said you were surprised

that that request never came?

Mr. HAAS. Well, considered—the timeliness of the Monica

Lewinsky search that I did manually coincided with just a few days

before, I believe, she testified. I’m not sure, but it was coming up

that somebody was testifying in the Monica Lewinsky case. And I

thought it was pertinent that somebody would ask us to go indepth. Once we found one, let’s find them all and come up with

some method, but it never came.

Mr. SOUDER. Because you suspected that there might be things

there that wouldn’t be backed up elsewhere in the system?

Mr. HAAS. Yes, sir.

Mr. SOUDER. Could you explain why something—how that

works? Why something would have been that you might have come

up with something in that programming that wouldn’t be backed

up anywhere else?

Mr. HAAS. If they were willing to accept the type of printouts like

we had done when Betty was requested to print it out, that’s not

an ARMS search.

If you can imagine—if we searched that one file and found 400

or 500 documents, let’s say we found 25 people, that’s a lot of paper

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somebody has to read, and I don’t know—I assume that you have

the resources to hire people to read it, but it is not the kind of format you want. But I suspected if they went through and looked for

it and they found a huge amount of it, it would be pertinent to the

testimony.

Mr. SOUDER. Because it wouldn’t be anywhere else?

Mr. HAAS. I have no way of knowing that it is not anywhere else.

All I can refer to is the fact that in all of these mail files I looked

through, I found significant numbers of documents showing in a

view that said they never made it to ARMS. If they made it

through secondary and third-level processes, I have no way of

knowing that.

Mr. SOUDER. We are going to hear, apparently, in the second

panel that all this stuff was available elsewhere. How would they

know if they—if your search on that limited number of Monica documents is the only thing that they checked?

Mr. HAAS. I would have no knowledge of how they would sit here

and testify to that.

Mr. SOUDER. Is it plausible that everything—in other words,

what you describe as a programming method, they could have

checked Monica and campaign financing or trace different names—

John Huang, Charlie Trie, anything we wanted to? Is it plausible

that everything—that this missing gap, which I understand that’s

small, that is incoming e-mails that aren’t CC’d to anybody else, is

it plausible that every one of those incoming e-mails is backed up

somewhere else in the system?

Mr. HAAS. No, sir. They are on that server, and, unless there is

a process to search them, they won’t be recovered, you know, taken

all the criteria you gave me, and there’s no other system that will

reach in and pull them out.

Mr. SOUDER. Mr. Barry.

Mr. BARRY. I think, Bob, you’re missing something about the fact

that if the e-mail is in Betty Currie’s, for instance, e-mail file, and

she gets the memo on her desk to search relative to the subpoena,

we—I know I always go through my e-mail file and search relative

to a subpoena apart from an ARMS search. So she would—I’m assuming maybe Bob is overlooking that. I’m not sure.

Mr. SOUDER. We are getting to a crux of a real difficult question,

but I want to ask another thing here, and that is: is it possible,

based on the fact that, instead of following the normal kind of

chain of command inside a civil—a contracted-out service that previously had been Civil Service, and Schedule C appointees—that is,

political appointees of the White House have now interjected themselves in a contract process, and clearly now, in retrospect, certainly stonewalled during a very critical time of 1996 to 1998, is

it plausible, because of the way I understand the backup system,

is it that instead of the system scooping up these e-mails every few

minutes, they were being duplicated at night in individual computers many hours later. Is it plausible that, given the fact that political appointees had come in and now were knowledgeable of this,

that other political appointees in the White House realized there

wasn’t a backup system for a number of hours and, in fact, could

hit a delete button?

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In other words, if there was an e-mail you did not want to get

and you didn’t want to keep it in your personal file that Mr. Barry

was talking about, and you had knowledge that all of a sudden the

system was down and you weren’t going to be backed up if you deleted it in a short period, is it plausible that that information could

have gotten out?

Mr. HAAS. The plausibility of that is, first of all, the general

knowledge of being able to delete it before it was backed up, I don’t

know that that information was disseminated outside of our floor

of the building.

Mr. SOUDER. But what about that Mark Lindsay knew?

Mr. HAAS. OK. That’s—it wasn’t disseminated by any of us.

Mr. SOUDER. I’m not accusing you. I’m saying political

appointees—— Mr. HAAS. Is it—it’s plausible that a person could receive a document and hit the delete key and it not—if we just even talk about

one single document, absolutely it’s possible.

Mr. SOUDER. Because a fundamental question that the American

people are having, and we in this panel, is, as I had read the Government’s documents that came over here, and what we’re going to

hear later today is, ‘‘Trust us.’’ I tell you what, the problem we

have is the trust is gone, because it doesn’t prove anything, the fact

that somebody could have deleted something, but, in fact, based on

the history of what we are frustrated with, we are no longer willing

to accept the trust that if, in fact, there was the ability to delete

documents, then it is, to me, very disturbing, because the political

appointees, in fact, all of a sudden have a potential motive for what

happened in 1996, 1998.

That’s different than proof, but the fact is that we don’t know.

Mr. BARR [presiding]. I thank the gentleman.

The gentleman from Florida is—— Ms. LAMBUTH. Could I say something?

Mr. BARR. Very briefly.

Ms. LAMBUTH. Yes. I was just going to say, if I remember correctly, I think that there is, like, up to a 13-minute period in here

that mail can actually be deleted before it is ARMS managed.

Mr. SOUDER. That’s the normal.

Ms. LAMBUTH. Yes.

Mr. SOUDER. But when the system is down, wasn’t it going to be

a whole day, roughly, until that evening?

Mr. SPRIGGS. To the extent that there actually were instances

where we received e-mail messages from a postmaster account saying, ‘‘Because of disk space limitations, please delete mail messages, please delete files.’’ We knew we had a disk space problem

on Mail2 and others. I mean, I’m on Mail5. In our situation, we

were actually given instructions, ‘‘Please delete these things because we’re running into disk space problems.’’

Well, if you are on Mail2 and you received that instruction and

you delete it, whether you are a political appointee or what, you

just complied with a directive to delete mail messages. You thought

they were records managed, but, in fact, they weren’t.

Mr. BARR. The gentleman from Florida is recognized for 5 minutes.

Mr. MICA. Thank you, Mr. Chairman.

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Well, it appears to me that you all had two basic missions. One

was to fix the problem that had been uncovered; that’s correct? And

some of you are technical and were trying to fix that problem; is

that correct?

Mr. HAAS. We have never—we’ve stopped the bleeding. We have

never fixed the problem.

Mr. MICA. OK. But there was a problem. It wasn’t reporting

these.

Mr. HAAS. That problem we fixed.

Mr. MICA. That problem was fixed. OK. Then it appears that you

had another role, which was to find—we’re pumping out subpoenas

or requests for information, independent counsel, the Senate, and

others, so some of you were involved in the find mission, and Mr.

Haas has testified that you—and, Ms. Lambuth, you said you had

given him specific requests to find documents; is that correct?

Ms. LAMBUTH. That is correct.

Mr. MICA. And so far the only thing—now, and then we were— we have been requesting different documents, like Filegate. You’ve

said the Vice President’s campaign finance problems that we had

asked—Waco, I guess, is another one, the sale of Commerce seats.

Did you—and you have testified that you only were involved, Mr.

Haas, in retrieving data on one that you are aware of.

Mr. HAAS. That’s correct. I have never received a request to look

for anything but Monica Lewinsky.

Mr. MICA. Did you, Ms. Lambuth, ask anyone else to look for any

of these, or were they all on the fix mission and only Mr. Haas on

the find mission?

Ms. LAMBUTH. Mr. Haas was on the find mission, but Bob had

stated a few minutes ago—and if I recall directly—there were four

other names that were given that we were supposed to find some

information on, including go into their mailboxes to find some information on Monica, and one of those was Betty Currie.

Mr. MICA. OK. That’s agreed on. But here we have the different

folks asking for information. Were you just involved in fixing and

nobody else beside Mr. Haas in finding anything?

Ms. LAMBUTH. Mr. Haas—on this technical team that was involved with this, Mr. Haas was the correct person to do the find.

He is—he was the Notes.

Mr. MICA. So the only thing that you were doing, Mr. Haas,

then—these requests were coming from us, and you only—— Mr. HAAS. No, sir. No, sir. You’re misunderstanding this. During

the beginning of the event, when we discovered an error, short on,

they asked us—someone asked Betty to ask me to look in this specific place for these specific files, which was the Monica Lewinsky.

I found that and I’ve done no other searches. I’ve received no other

request to do any searches, even to this day.

Mr. MICA. For anything else—Filegate——

Mr. HAAS. Other than my own, personal searches of my mail file

that we do receive through the mail. But I’ve never been asked to

go back through anything else other than my file as part of this

project.

Mr. MICA. What happened to the request?

Ms. LAMBUTH. I don’t remember it that way. I definitely remember the Monica Lewinsky request for searches, but I still believe

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that there were other requests for searches not too long after that

period.

You know, we get about 20,000 mail messages, approximately

20,000 mail messages a day. That’s a lot of mail messages.

Mr. MICA. So there may be—now, the body from 1996, from August 1996 to November 1998, there could be a huge body then of

e-mails that we’ve never seen or been requested or gone after?

Ms. LAMBUTH. That’s correct.

Mr. MICA. Is that correct?

Mr. HAAS. That’s correct.

Ms. LAMBUTH. Yes, that is correct.

Mr. MICA. Are we talking about thousands?

Ms. LAMBUTH. Hundreds of thousands.

Mr. HAAS. Nobody has ever counted them. We don’t know.

Mr. MICA. But you were able to go by hand and get some things

that were specifically requested, so there is a capability of going

back to those records. Are those records still some place where

somebody could go get them?

Mr. HAAS. We don’t know that, sir. They’re on—we suspect they

are on tapes. The tapes have not been loaded and verified to see

that those files still exist. But understand what you’re going to get

in a given tape is the data that existed that moment.

Mr. MICA. But again, that body, that huge body, there’s only a

small number of requests that were complied with that you are testifying to. There could be this huge volume in that timeframe,

right, August 1996, to 1998.

Now, after 1998, we’re—well, after 1998, I guess, November

1998, it didn’t matter.

And I think Ms. Nolan has testified that there are 3,400 tapes

or something in here. Is that where that information would be?

Mr. HAAS. I would suspect so.

Mr. MICA. And we think that that would have all the backup information. But it is possible to go back and get some of the things

we requested, even if it had to be done, say, by hand?

Mr. HAAS. Yes.

Mr. MICA. But you could also take these tapes and key them for

certain words and pull that information out, like we do on our computers now?

Mr. HAAS. One by one, by hand, yes. Sure.

Mr. MICA. Ms. Golas.

Ms. GOLAS. Yes. I think the thing that hasn’t really been brought

out is that the mail messages aren’t individual files. OK? They are

managed by Lotus Notes and they are in a data base, and each

user has a data base of their own. So it’s not as easy as just go

executing a search.

Mr. MICA. So do we have two bodies? We have all of these tapes,

and then we have on individuals, too, or are they combined?

Ms. GOLAS. Each individual’s mail file, mail data base, is on the

tape as a file.

Mr. MICA. Yes. And you would think that would be complete?

They didn’t have the ability to delete them, or they did have—— Mr. HAAS. They did before it was backed up.

Mr. MICA. So there may be a huge body, and then there may be

a body of sort of missing——

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Mr. BARR [presiding]. The gentleman’s time has expired.

Mr. MICA. Thank you.

Mr. BARR. Thank you.

The Chair recognizes the Congressman from California for 5 minutes.

Mr. HORN. I thank the gentleman.

I think I am on the same task that Mr. Mica has been asking

you. Let me get it in another way.

Are the 500 people in the White House, OMB, etc., are they all

connected with your particular servers and all; is that correct? Mr.

Haas, let me ask you that.

Mr. HAAS. Yes, sir. It is not OMB, first of all, it is—OMB is on

a second server.

Mr. HORN. Executive Office of the President, then.

Mr. HAAS. Well, we have five servers, and different organizations

are spread across those five servers. We’re mainly talking about

the Mail2 server at this point.

Mr. HORN. Now, let’s just take one person that is in the e-mail

thing. Now, how much of a memory do they have in their particular computer, or do you have the memory storage capacity?

Mr. HAAS. We have the grand total memory storage, which is

shared among all users on the server, and it is totally uncontrolled.

We have recently had people that exceeded a 1 gigabyte mail file

just for their personal mail file, and it has caused us great problem. The White House has decided not to restrict the mail space.

Mr. HORN. So you’re telling me that a person that has the e-mail

capacity through your program, they have how much memory, if

any?

Mr. HAAS. They get it—everything they want. At the time that

this server was put up, I think we had 14 gigabytes total, and now

we’re somewhere in the neighborhood of 100 gigabytes of total disk

space on Mail2, and it is up in the high end of the 80 percent full

range.

Mr. HORN. Well, do we know and do you have a general idea as

to how much memory each person has and how much memory do

they have in a file under your control?

Mr. HAAS. I have no clue what they have, themselves, on their

personal machine, but on the computer—on the printout that I submitted from that that they have in here as testimony, there is basically a report that tells you how many messages they have in

there, but it doesn’t tell you in disk space size how big it is.

Mr. HORN. Now, do we know on your system, the way it is constructed, the degree to which you need a backup tape every night?

I’m from California. I’m used to earthquakes shaking computers.

Mr. HAAS. The Lotus Notes system and the backup tape system

that is used on it aren’t totally compatible, so in that extent every

time you run a backup on the mail system you get a complete

backup. There is no such thing as—if you are familiar with the

term ‘‘incremental backup,’’ an incremental nightly backup of a

mail system is everything on that mail system.

Mr. HORN. Right.

Mr. HAAS. And they were scheduled to be run every day, from

what I understand from the server group that does that. Problems

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came about with tape drives being bad and all that, so there are

gaps in there, but I don’t have direct knowledge of that.

Mr. HORN. Now, if they had a file in your system, would that be

backed up in the evening before they go home?

Mr. HAAS. Yes, sir. No. Before they go home? No, sir. They’re

backed up—it usually takes almost a 24-hour cycle to back the

whole server up, so they’re going on during the day, during the

night. Depends on what time of day the backup system got to your

particular mail file.

Mr. HORN. OK. But that is basically your process, to have a

backup system and to run it, what, every 24 hours?

Mr. HAAS. It’s not my process, but it is an established process at

the EOP to back up the mail servers every night, and my understanding is if they can be done in a 24-hour cycle, they will be

done.

Mr. HORN. Now, Presidents usually like to build a Presidential

library. To your knowledge, has the President said, ‘‘Hey, I want

all of these things maintained?’’ This could be way before any of

Travelgate, what not. But wouldn’t they be saying, ‘‘I’d like to see

documents save, whether they be electronic or written?’’ Do you

have that capacity?

Mr. HAAS. My understanding is that backup tapes are not used

for that purpose at the White House; that the ARMS records are

the record for the Presidential library, and that these tape

backups—the whole tape backup scenario is only there for catastrophic failure of hardware. It has nothing to do with NARA and

Presidential libraries or anything else. It is there for recovery of a

disaster.

Mr. HORN. Well, OK. Say you had real problems in the electrical

system in Washington, DC. Is the only thing you have those tapes

that you run systematically, or do you have them in a cave somewhere, which is what a lot of corporations do?

Mr. HAAS. I don’t know. We don’t take—none of us at this table

administer that system. It’s done by what we call the ‘‘server

group’’ at the EOP, but they’re not in a cave, to my understanding.

I believe they are either in the basement of our building or that

they are stored at an offsite site that is considered safe by standards.

Mr. HORN. Could a White House member scrub all of their files

if they had the key of access to the file in your particular contract?

Mr. HAAS. Any mail user on our system can go in and delete

their entire mail file at will any time, day or night.

Mr. HORN. Now, what happens to that file? Say they delete it

and they go and they have retired and they want to do something

else. Can a new party take in a specified file, or is that too massive

to identify?

Mr. HAAS. Are you talking about where a person replaces another person in their job?

Mr. HORN. I’m saying one person decides to get out of there.

They don’t want to see that system again, and they can take their

file with them, and——

Mr. HAAS. No, sir. We don’t allow that. We have no way to transport it.

105

Mr. HORN. Well, they could, you know, run a paper printout on

their files.

Mr. HAAS. Yes, they’re entitled to.

Mr. HORN. But I’m wondering, in the space of your computer operation, the next morning somebody is hired could they take that

amount of space at all?

Mr. HAAS. No, sir. Typically, there is a departure slip filled out

by the person leaving the agency, for whatever reason. It goes

through the normal processes and it is submitted to the security

group to delete the account when they get to it. Sometimes they delete the account in a day, sometimes it sits out there for 6 months

before it gets deleted, and only then—it takes 24 hours after that

before that space becomes available again.

Ms. LAMBUTH. Could I point——

Mr. HORN. Could that—as I understand it, the——

Mr. BURTON [presiding]. Mr. Horn, your time has expired. We’ll

have one more round here.

Ms. LAMBUTH. Could I add something to some known missing

backup tapes?

Mr. BURTON. Sure.

Ms. LAMBUTH. Shortly after Project X was made known as far as

we discovered the problem, we were told—I was told—and I did

confirm by going back and looking at tapes—that there were 6

months of backup tapes that had been overwritten by some previous backup processes.

Mr. BURTON. Explain why that was done real quickly.

Ms. LAMBUTH. I don’t know why it was done, but there was a 6-

month period of time in 1997 of backup tapes that were overwritten, and I believe that those dates were from June or July 1997

to November 1997. Those backup tapes were overwritten.

The other thing that the committee might want to be aware of

is that there is a very short shelf life. When I’m saying ‘‘short shelf

life’’ on tapes, I’m talking a couple of years—2, 21⁄2 years of shelf

life on tapes before they start to disintegrate. So that needs to be

known, also.

Mr. HORN. Mr. Chairman, I think that dialog shows that the FBI

does—and I know it has the capability to find out what was on the

previous tape, and it seems to me if you can find some of the tapes

there they could be gone through.

Mr. BURTON. We will pursue that. We’ll see if those tapes can be

looked at, even though they have been overwritten.

Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

Going back, Mr. Barry, to the incident report dated January 30,

1998—and I would ask unanimous consent to have that made a

part of the record, Mr. Chairman.

Mr. BURTON. What?

Mr. BARR. I’d ask unanimous consent to have the document

handwritten at the bottom, which was delivered to me by Mr.

Barry just a little bit ago, dated January 30, 1998, 2:59 p.m., be

made a part of the record.

Mr. BURTON. Without objection.

[The information referred to follows:]

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Mr. BARR. Now, I believe you testified, Mr. Barry, that this report you sent to Mr. Wright?

Mr. BARRY. Yes, sir.

Mr. BARR. And OA?

Mr. BARRY. Yes, sir.

Mr. BARR. OK. And that was in late January 1998?

Mr. BARRY. Actually, the date that is on the document is what’s

called a ‘‘modified date.’’ I’m not sure exactly when it was created.

Mr. BARR. Approximately that time, though?

Mr. BARRY. Approximately, yes.

Mr. BARR. OK. In early 1998?

Mr. BARRY. Yes.

Mr. BARR. There is another document here that was sent over— and maybe, Mr. Young, you can tell us what this document is.

White House—W3, exhibit No. 7, talking points. Who prepared

those talking points dated March 7, 2000?

[Exhibit 7 follows:]

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Mr. YOUNG. Are you asking me to testify, Congressman?

Mr. BARR. Yes, sir.

Mr. YOUNG. I have no idea.

Mr. BARR. You have no idea?

Mr. YOUNG. No idea, sir.

Mr. BARR. According, Mr. Barry, to White House exhibit No. 7,

on page 5, by this apparently unknown author, there is a question

posed to an unnamed recipient: ‘‘Were people within the White

House office ever notified about this problem?’’ Answer: ‘‘Yes, within a couple of days after OA became aware of the error, Virginia

Apuzzo, head of OA, sent a memo to Chief of Staff John Podesta.’’ Obviously, at least some people in OA—we don’t know who— were aware of it before then, because the memo that is referred to

by this unknown author to an unknown recipient, for which Mr.

Young professes no knowledge whatsoever, even though he is from

OA, is dated June 19, 1998, White House exhibits 3 and 4.

[Exhibits 3 and 4 follow:]

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Mr. YOUNG. I am familiar with that document.

Mr. BARR. Pardon?

Mr. YOUNG. That document I am familiar with, your question.

Mr. BARR. Hallelujah.

The White House did address this issue, at least to some extent,

in June, some 5 months later.

What is also interesting is my information that just a few days

before this memo on the record dated June 19th, which purports

to address the problem, just a few days before that, on June 11th,

there was, in fact, a message that instructed people to delete old,

unneeded e-mails.

This, I think, if I might speak for some of the other Members

here, is why one—highlights one aspect of this that is so disturbing

to us. Even though OA was aware of this problem early in the year,

very early in 1998, apparently, for some reason—and it might have

to do with subpoenas that were being issued or the Office of Independent Counsel’s work with regard to Ms. Lewinsky—and I think

Mr. Souder was getting to this, also—the problem with deleting information and e-mails during this particular window in time where

there is no backup.

On June 11th, White House people are directed to delete old,

unneeded e-mails. Now, under certain circumstances, that might

just be a coincidence, but it is very suspicious, because then, just

a few days later, despite the fact that OA knew about this problem

for many months, then they put something on the record purporting to say, ‘‘Hey, we have a problem and we ought to do something

about it.’’ Does this strike you as odd, Ms. Lambuth, the timing of all of

this?

Ms. LAMBUTH. Well, I think it is odd, but we were definitely running out of disk space, and I, personally, had gone to OA and, after

talking with Bob and some other people, the fact that we were in

critical way as far as space.

One thing that you’ve got to realize about a server is if it runs

out of space you can’t turn it off and bring it back up, because it

is still out of space, so everything on that server is lost.

It did take some doing to get permission to send out the e-mail,

and it was worked before Virginia would even allow the e-mail to

be sent out.

If I remember correctly—I’m not sure it is on this one, but there

were several that there were—when we would go in and finally

were allowed to delete some mail messages for the people, would

could only do it if it was prior to a particular date—I don’t remember what any of those dates were—but we were in a critical situation.

If anything, I would say is, knowing what the situation for storage space was on the mail servers and knowing that there are no

rules about people can only have a certain volume for storage for

e-mail, that they can only keep so many e-mail messages, etc., that

there should have probably been a little bit more done to secure additional servers or for storage space, because, again, if you run out

of space you’ve lost everything and you won’t be able to get it back.

Mr. BARR. Right. And, Mr. Haas, when did you do your search

of the user names for e-mails from Monica Lewinsky?

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Mr. HAAS. For the documents? That was—we started this project

on, I guess, the 15th—12th to 15th, that timeframe, when we actually started working.

Mr. BARR. Of?

Mr. HAAS. June 1998. I’m sorry.

Mr. BARR. June.

Mr. HAAS. June 1998. I’m sorry.

Mr. BARR. June 1998, also?

Mr. HAAS. Yes. And I would guess it was probably 2 or 3 weeks

into my work that they asked me to do it, so it was, what, somewhere around June 30th that I was asked—— Mr. BARR. Somebody wanted to find out what was there?

Mr. HAAS. Specifically, I guess. I mean, why—they came down

with a request to look for these and look here, so—— Mr. BARR. Was it around the same time files were being told to

be deleted.

Mr. WAXMAN. Regular order, Mr. Chairman. It seems like Members have 5 minutes and they ought to stay within it so we can

give this panel a break and get on to the other two.

Mr. BARR. I think the record will reflect those dates that they’re

approximately the same time period.

Mr. BURTON. The gentleman’s time has expired.

I have some time. If we need, I’ll yield you my time.

Mr. Souder.

Mr. SOUDER. Mr. Chairman, I’ve had two rounds.

Mr. BURTON. All right. Do you have further questions? This is

the third round. Do you have any further questions? If not,

we’ll—— Mr. SOUDER. Yes, I do have a couple of—— Mr. BURTON. OK. This is going to be the last round for this

panel.

Mr. Souder.

Mr. SOUDER. I wanted to repeat just for the record, on the 525— I was going through the names—this includes Bruce [sic] Lindsay,

Cheryl Mills, Betty Currie, Erskine Bowles, Doug Sosnik, Rahm

Emanuel, Nancy Hernreich, John Podesta, Bruce Reid, Marsha

Scott, Lanny Breuer, Sidney Blumenthal, Paul Begala, as well as

the Presidential files. The 525 are not insignificant. We’ve dealt

with these for the last number of years. In particular, we have

been seeking information in 1996 to 1998.

I also was particularly disturbed about this backup system and

trying to understand it. I’m sure we’re going to debate that in the

next couple of panels.

I also wanted to followup on one thing that was said earlier

today that I didn’t fully understand, and that is it seemed that the

panel seemed to feel that the request by the White House counsel

to let you look at the—to give him some time—maybe Mr. Hawkins

could—well, you weren’t directly involved. Let me ask Ms.

Lambuth, and I think several of the others of you said that you felt

the request was not unreasonable that they wanted some time. I

know Mr. Spriggs said that.

Given the fact that—why would that not be unreasonable? In

other words, why wouldn’t that be immediately reported that there

was a problem with the system? Why would you have felt that you

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had to go to a park across the street or to Starbuck’s anyway? I

mean, if there’s a problem with the system, who would you be hiding from?

Ms. LAMBUTH. I didn’t feel that it was unusual, knowing the circumstances of all the subpoenas, for them to say, ‘‘OK, we acknowledge that there’s a problem.’’ As I said a few minutes ago, ‘‘Let’s— give us some time to see how we want to approach telling the public that we have found these additional e-mails.’’ I’ve also reiterated several times throughout the day that to me,

especially, it became very apparent that that was not what the intent was. The intent was to basically stall this whole process, to

keep it from happening, because I couldn’t get various things done,

I couldn’t get meetings when I requested meetings with the people

that were supposed to be the only ones that could even give me direction on that.

Mr. SOUDER. So, as this time period drew out, you had doubts,

but let me go back to the beginning. I still don’t fully understand

why you felt you couldn’t discuss this on White House or in your

work ground, why you had to go across the street.

Ms. LAMBUTH. Well, Sandy said it, Ms. Golas said it a little bit

earlier. We really had no space in which to work. We had none of

the equipment that we really needed to do this, even though we

had given them specs.

Mr. SOUDER. Wait a second. I’m sorry. I need to followup. You’re

saying that there was more space at a Starbuck’s and across the

street in LaFayette Park than in the White House? I mean, this

isn’t plausible. I mean, people are watching on TV. They’re going

to watch the C–SPAN of this, and you’re saying that in the entire

White House and Executive Office Building they don’t have a room

that you could go to, but that you could get a table at Starbuck’s

or a space in a public park out there that you couldn’t get in the

White House? That’s just not plausible.

Ms. LAMBUTH. It had been stated before that we often went to

a very large room on the second floor and had meetings, but it was

also stated that that was inside of the smoking area and people

would stand outside the windows and watch.

Most of you—if you’ve ever been to the new Executive Office

Building where our offices were, the walls are very thin, and anybody can be standing outside the door and hear what’s going on,

and we were specifically told that nobody else was supposed to

know about this information, and so we thought, for confidentiality,

that we couldn’t go into my office. People stood—could stand outside the door. It was also a very small office. John and Sandy’s office was a thoroughfare for people cutting from one hall to the

other hall, even when the doors were closed.

Mr. SOUDER. I mean, it wasn’t that you couldn’t find space somewhere in these big Federal buildings?

Ms. LAMBUTH. It was for security more than not finding space.

Mr. SOUDER. And so that you were afraid of who seeing you in

the White House? See, that’s what is hard—— Ms. LAMBUTH. It wasn’t who seeing us, it was who was going to

hear this. We had been——

Mr. SOUDER. Who were you afraid in the White House would

hear you? In other words, if what you’re doing is just trying to fix

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the system, what White House personnel or Executive Office personnel would you be afraid of hearing you?

Ms. LAMBUTH. If we were talking about specific mail records that

were lost, and somebody says something to a friend of theirs over

a beer that night, ‘‘Oh, I heard today that there are other additional—’’ and that leaks to the paper, then that comes back to us

that we leaked this information. We had been threatened. If we

leaked any information, we would lose our jobs, we would be arrested, and we would go to jail. It was a very legitimate concern

on our part.

Mr. BURTON. The gentleman’s time has expired.

Mr. Mica.

Mr. MICA. Thank you, Mr. Chairman.

When I ended my questioning, it appeared that we have basically

hundreds of thousands of e-mails that are somewhere and have

never been seen. We have the possibility of individual user files

that could have information or could have had information deleted.

Is that correct?

Ms. LAMBUTH. Again, I mentioned we get in excess of 20,000 emails a day, so over that period of time, even calculating roughly,

it is over 100,000 e-mail messages.

Mr. MICA. My concern also is that, of course, some of these

records were under subpoena, and you’re saying you felt that this

was being stalled to provide the information. You all sort of were

told in secret to—I mean, to be secretive about this, not discuss

what’s going on.

You have Mr. Hawkins, who is the contractor responsible for the

billing and all, wondering if these folks are off the reservation. It

could be embarrassing to—it could have been very embarrassing to

your company to have—well, you were trying to make certain that

they were on the reservation and complying with the contract,

right?

Mr. HAWKINS. Yes, sir.

Mr. MICA. OK. It could have been very embarrassing to Northrop

Grumman if the public knew what they might have been involved

in. But you did—at some point, you did seem to find out what they

were involved in, didn’t you?

Mr. HAWKINS. Yes, I did.

Mr. MICA. You did. Even though it was secret?

Mr. HAWKINS. Well, I made that point when I met with Mr. Lindsay. He told me he wanted to keep this a secret, and I said, ‘‘Some

secret we’ve got here, with about 10 people I knew had it.’’

Mr. MICA. But you were also sort of cutoff by Mr. Lindsay when

he told—you didn’t go back to Mr. Lindsay after your conversations; is that correct?

Mr. HAWKINS. No, sir. I had the proper counsel working it.

Mr. MICA. Well, we may never know what we didn’t get in this.

Some of it was to fix the problem, some of it was to find, but it

appears that we only found a limited amount.

Last Friday, the committee received a letter from the White

House counsel, Beth Nolan, in which she wrote, ‘‘There was a new,

unexplained problem with the e-mail in the Office of the Vice President,’’ and that’s exhibit GR–2, page 6, second paragraph.

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It just says that, ‘‘In the course of gathering these preliminary

facts—’’ I’ll read it—‘‘concerning the configuration error, we were

informed this week that the e-mails on the server of the Office of

the Vice President have not been fully managed by ARMS. We are

still in the process of determining the scope and time period involved. The Office of Vice President does maintain backup tapes of

its server.’’ So now it appears that there is also a problem in the Vice President’s office. Are you aware of this?

[Exhibit GR–2 follows:]

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Ms. LAMBUTH. Yes.

Mr. MICA. You are?

Ms. LAMBUTH. Yes, I am.

Mr. MICA. Everyone else is aware of this?

Mr. HAAS. We’re aware that they are doing something different

with records management. We don’t—aren’t directly charged with

records management of the OVP.

Mr. MICA. Now, if we wanted information from the Vice President’s office, is there a possibility some of this could be missing?

It says, ‘‘The Office of Vice President does maintain backup tapes

of its server,’’ so that’s—everything is going to be there? would that

be the case?

Mr. HAAS. You would have to contact the Vice President’s office

for that information.

Mr. MICA. You wouldn’t know?

Mr. HAAS. I don’t know.

Mr. MICA. Would anyone know if he has a similar system, or are

we going to find another case in which there are documents not

available?

Do you know anything about this, Mr. Spriggs?

Mr. SPRIGGS. Yes, sir, I do somewhat.

Mr. MICA. Could you explain?

Mr. SPRIGGS. The Office of the Vice President, when they deployed their Lotus Notes server, decided to employ a non-standard,

if you would, non-EOP records management system using tape

backups, and—— Mr. MICA. When was that?

Mr. SPRIGGS. That was as early as—my understanding, the server was created in 1994.

Mr. MICA. OK.

Mr. SPRIGGS. So their server predated the EOP OA servers. But

at that point the records management system that they chose was,

again, this tape backup methodology. Again, what they have on

their side, on the OVP side, was not our concern for a number of

years, up until—in March 1998, I was put on a project by Betty

Lambuth specifically to move the Office of the Vice President’s

server, called OVP-underscore–1 into OA IS&T control facilities.

I worked with Ms. Crabtree and others to put together a plan to

move that equipment into this OA space, and at that point, when

we executed it at the end of March 1998, the server was turned on,

the users were up and running on it. The question of records management apparently had not been resolved at that point.

We, OA, began to do the backup systems for the OVP-underscore–1 server, but at that point I’m not aware of any instructions

to do records management by that same method for the OVP.

My understanding is that by July 1999, we were given instructions—Jim Wright gave instructions to actually start doing a 3-

week cycle on the backups for all of our servers, which included the

OVP-underscore–1 server, so that now we are on a 3-week cycle.

Every 3 weeks they overwrite the existing tapes. And so if OVP is

doing records management with tape backups, then they have a

problem.

Mr. MICA. Thank you.

Mr. BURTON. The gentleman’s time has expired.

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Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman.

I’d like to ask you, Ms. Lambuth, you said there were 20,000 emails a day. Now, was that limited strictly to the Executive Office

of the President, or could outside parties within the Government or

outside send e-mails into that system?

Ms. LAMBUTH. There were approximately—if I remember correctly, there were 20,000 or so e-mail messages that came in

through e-mail each day. That was not limited to just within.

Mr. HORN. OK. You’re saying that 20,000 could come from people, or was that put into a different e-mail system?

Ms. LAMBUTH. There were different e-mail systems that, for, like

the President, people sending through the Internet, their Internet

mail, what we called—well, the President, the Vice President, and

the First Lady got e-mails from outside. That basically was—came

through. The file was then sent over to their various offices, and

then the files ran through, if I remember correctly, a WordPerfect

process that allowed them to view and search those files.

Mr. HORN. In other words, those three categories—the President,

the Vice President, the First Lady—had an e-mail system that

didn’t necessarily go through your system; is that correct?

Ms. LAMBUTH. The Internet mail did not go through that system.

Mr. HORN. Well, if they had——

Ms. LAMBUTH. If I remember correctly.

Mr. HORN [continuing]. Personal friends, I assume they gave a

code to their personal friends as to how to reach them.

Ms. LAMBUTH. I can’t answer to that.

Mr. HORN. OK. Well——

Ms. LAMBUTH. I don’t know.

Mr. HORN. Let me ask you, on firewalls within the system, obviously, with hackers all over the world and the country and foreign

governments, also, did you have protection to keep hackers from

getting into the system?

Ms. LAMBUTH. Well, we had—yes, we did have a firewall. And

I’m having to really think back about the structure of this. We had

STORM, which basically helped keep certain types of e-mail messages from coming through, or numbers of e-mail messages coming

through to shut the system down.

Sandy and John basically were the ones that handled this particular area and kept a close watch on it and were notified if there

were problems with this.

Mr. HORN. I yield the rest of my time to the chairman.

Mr. BURTON. Thank you.

I just have one real quick question for Mr. Haas.

Ms. Hall did not have anything to do with Project X, as I understand it, so——

Mr. HAAS. Not at the beginning.

Mr. BURTON. So why did you go to Ms. Hall’s office and talk to

her about that?

Mr. HAAS. She was asking questions about it, and the direct line

of—the 10 years I’ve worked there, the period of time she has been

there, she has been, more or less, the top of my working food chain,

if you will, and she was asking me about it, as I said, after we

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made disclosure to the Northrop Grumman and were told we could

now work on the project and talk to whoever we needed to talk to.

When she asked the questions, I assumed it was in an official capacity and I answered my questions to the best of my ability.

Mr. BURTON. So she asked you to come to her office and you answered the questions?

Mr. HAAS. Yes. I commonly stopped by there many times a day.

It is right in line with what I normally do.

Mr. BURTON. OK. I’ll yield to my counsel.

Mr. WILSON. You’ve been here a long day, so I’ll be very, very

brief. Thank you. I’ve spoken with most of you. You have been very

cooperative. I greatly appreciate it. It has been a long day, so I’ll

try to get to resolve three things.

Mr. Barry, when we spoke—and you were very forthcoming. We

appreciate that—you mentioned to us in January or February 1998

you had identified this anomaly in the Lewinsky e-mail traffic, and

you suggested that you wrote a report, and we have just been furnished this.

Now, I wanted to ask you, do you know whether this document

has been produced to the committee?

Mr. BARRY. All I know is I turned it over to counsel’s office.

Mr. WILSON. OK. Now, I only ask this—we’ll go back and check.

We’ve checked three times now. And we’re having a hearing today

about failure to produce documents, and we sent a subpoena out

last week. It was very, very clear. It wasn’t broad. It said specifically, because you told us that you had this document, and you now

knew where it was, we asked specifically for the incident report

that you prepared that is this document, and it appears to us that,

although documents have been produced to us by the White House,

we have not received this copy.

I notice you were able to turn to your counsel and get a copy

from him immediately, so if there’s anything you can help us with

this issue, to tell us whether you know anything about why this

document wasn’t produced to us——

Mr. BARRY. Like I said, I turned the document over to OA counsel. That’s all I know. I don’t know where it went from there.

Mr. WILSON. OK. We’ll followup on that on our own time and just

double check to——

Mr. BARR. Excuse me. Would counsel—I’d like to just note for the

record that, contrary to all of the other documents that counsel has

reviewed and we have had available, this document which I introduced into the record, because we just received it today, does not

bear any of the identifying marks such as would indicate that we

had received it.

Mr. YOUNG. None of my documents would, Congressman.

Mr. BURTON. Without objection, so ordered.

Mr. WILSON. The second thing I wanted to followup on was something that you said, Mr. Haas, and it relates to a letter we received

from the White House at the end of last week. They explained to

us—White House counsel explained to us in great depth that many

of the e-mails from outside of the White House complex would have

been reviewed or searched in other ways, and basically indicated

that there probably wasn’t much of a problem because many of the

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e-mails that we’re talking about today, these hundreds of thousands of e-mails, have actually been scrutinized.

One thing you said struck me as very important. You indicated

that the e-mails that are on the personal computers of users in the

White House don’t stay there for a very long time. You said, I believe, 98 percent of the e-mails would not be reviewed if somebody

were going back to—— Mr. HAAS. I think you’ve got—I think you misunderstood.

There—98 percent of all the e-mails are on the mail server and

were subject to the error of the glitch of not being recovered. Any

person that had made a personal copy of their mail file, not—they

don’t move—there is never, ever any mail, ‘‘active mail,’’ as I call

it, on your computer. You are looking through a window using your

computer at our server at all times.

If you choose to make a copy subsequent to looking at it, it is always delivered to the server. If you choose to make a copy down

to your C drive and that is your local file and you choose not to

search it under subpoena, that’s your thing.

Mr. WILSON. That point I understand, but that takes the affirmative step of actually copying—— Mr. HAAS. Yes.

Mr. WILSON [continuing]. The e-mail to preserve it.

Mr. HAAS. Absolutely. It’s—— Mr. WILSON. If you haven’t taken that affirmative step, it is not

going to stay forever on your computer, it will go away. So if somebody comes back 6 months later and asks you to search for a particular type of information—— Mr. HAAS. Not there.

Mr. WILSON [continuing]. It’s not going to be there. So any representation given to us that all of these documents would have

been searched in another way would only be correct if people were

able to—had affirmatively copied all of the information and gone

back and done the searches; is that correct?

Mr. HAAS. Or if they had actually done a mail search manually

on the server of their mail file and then printed them off. Many

other people I’ve talked to over the 10-years I’ve been there said,

‘‘We don’t have to search our mail files. That’s done for us. We

search everything else.

Mr. WILSON. And just one last question.

Mr. Hawkins, if I could followup on something you said, we

heard the story about how Ms. Lambuth and you have locked horns

on a number of issues, and it became clear that she would not tell

you what the scope of the problem was that people were working

on, and you were dissatisfied with that; is that correct?

Mr. HAWKINS. Yes, I was.

Mr. WILSON. OK. Now, you said—and I’ll read back the direct

quote that you said—‘‘that was the straw that broke the camel’s

back’’; is that right?

Mr. HAWKINS. Absolutely.

Mr. WILSON. So I just wanted to establish one thing, and that is

that Ms. Lambuth did have a personnel action taken vis-a-vis her

remaining on the contract that you supervised; is that correct? She

was removed?

Mr. HAWKINS. She was removed.

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Mr. WILSON. Right. And so it seems that the position that she

was put in, being sort of made not to tell people and her supervisors what was going on, actually had a relationship to what happened to her in her employment; is that correct?

Mr. HAWKINS. Let me characterize. I would suspect anyone that

has got any experience in a management role on a Government

contract, they understand compliance with that contract.

Numerous times during the employment history at EOP, Betty

had to be counseled of stepping out of bounds, taking direction

from the Government employee.

It is very, very clear in the EOP contract that they take directions from the COTR, which is given to the program manager.

These were—many, many times in my staff meetings I had to continue to remind the employees there, because they lose sight from

day to day. They get alliances with some of the Government employees.

Mr. WILSON. Right. I understand that, and I think you made that

very clear. But in this case it does seem that it is clear Ms.

Lambuth didn’t inform you of the full scope of the problem and

that did have a bearing on how you reacted to her, and it seems

justifiably; is that correct?

Mr. HAWKINS. Had we not had any prior problems, that would

not have been enough to have her removed from the contract, period. Plain and simple.

Mr. YOUNG. Mr. Wilson, I do believe that the document you referred to is—and I understand in documents you can lose sight of

where they are—is ‘‘E’’ as in Edward, 2496. But thank you very

much.

Mr. WILSON. OK. Thank you.

Ms. LAMBUTH. Could I say something?

Mr. WILSON. Mr. Chairman, I did want to make that very same

point. So, if I might ask, E–2496 is identification of documents that

were submitted to this committee?

Mr. YOUNG. I am told that that is the document to which Congressman Barr was referring. That is correct. That’s my understanding.

Mr. BURTON. We’ll let the record so show.

Mr. WILSON. Ms. Lambuth, do you want to conclude?

Ms. LAMBUTH. Yes. In my defense I would like to say this: I was

often accused of aligning myself with one of the Government supervisors. In reality, that particular Government supervisor, Laura

Crabtree, was the branch chief who I got—who had most of my

projects. About 95 percent of the work that I did for EOP fell under

her direction, and I basically was keeping her informed of processes

that were being done, trying to allow her to know about issues so

that she did not get broadsided, and she was giving me other direction as far as other things that they needed done or a particular

project or why a project might slip. And it was only in the course

of my work that I was, as was stated, so far—such as taking direction from a supervisor.

Mr. SOUDER. Mr. Chairman.

Mr. BURTON. Mr. Souder.

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Mr. SOUDER. May I have unanimous consent to ask a brief questioning to Ms. Golas? It’s something directly related that I may

have misunderstood——

Mr. BURTON. Yes, briefly.

Mr. SOUDER [continuing]. To ask Mr. Lindsay.

You stated under questioning, I think, from Mr. LaTourette, that

you had dealt with classified material before; therefore, you

didn’t—weren’t surprised necessarily by the request. Did they

imply to you that this material was in any way classified?

Ms. GOLAS. No. Just really sensitive.

Mr. SOUDER. By ‘‘really sensitive’’—in other words, one of the

problems we’ve dealt with in this committee is that things that

were more ‘‘really sensitive’’ in political terms were treated as if

they were classified. So you just—you made your own personal conclusion that this could be more like classified material than anybody suggesting that to you?

Ms. GOLAS. Yes. No one ever used the word ‘‘classified to me.’’

Mr. SOUDER. Thank you.

Mr. BURTON. Let me just conclude by—this has been a long, arduous task for all of you. We appreciate your coming, and hopefully

we won’t have to bother you again, but we do appreciate your being

here today.

Mr. FITTON. Do you plan to call Ms. Hall, Chairman Burton?

Mr. BURTON. We will take that under advisement. We have another panel that is due right now.

Do any Members want to take a break here? If not, we’ll go

ahead with the next panel, and if there is any need for any break

for anybody, we’ll allow that, but if not let’s go ahead with the next

panel.

We’ll wait 5 minutes. We have a couple of people that need to

take a quick break, so we’ll be no more than 5 minutes so we can

move ahead. No more than 5 minutes.

[Break.]

Mr. BURTON. Raise your right hands, please.

Ms. CRABTREE-CALLAHAN. Mr. Chairman, may I ask a question,

please?

Mr. BURTON. Yes.

Mrs. CALLAHAN. May I be sworn in my correct name? It’s Laura

Callahan, and it has been since September 1998 when I was married.

Mr. BURTON. Would you like it to be Laura Callahan or Laura

Crabtree-Callahan?

Mrs. CALLAHAN. It’s Laura Callahan.

Mr. BURTON. Laura Callahan. OK. As Laura Callahan.

Mrs. CALLAHAN. Thank you.

Mr. BURTON. Raise your right hands.

[Witnesses sworn.]

Mr. BURTON. Before I ask any questions, I’d like to make one

real quick comment, and that is that the committee has conducted

a lengthy investigation of campaign finance scandals. Over 120

people have fled the country or hid behind the fifth amendment

when we wanted to talk to them. When we found out about the email problem, we asked people to come in for interviews, and both

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of you agreed to come in. Then you suddenly changed your mind

and backed out.

I was very disappointed that you decided to do that. People who

work for the White House, Mr. Lindsay and others, we believe

should cooperate voluntarily with the Congress and they

should—— Mr. KADZIK. Mr. Chairman, if I could interrupt for a moment.

Mr. BURTON. No, you may—— Mr. KADZIK. It is incorrect—— Mr. BURTON. Counsel, you may not speak before the committee.

You can speak through your client. You cannot speak before the

committee, and I’m making an opening statement. Your client can

respond when we get into questions.

Mr. KADZIK. Just so you don’t state—— Mr. BURTON. Mr.—what is your name, sir?

Mr. KADZIK. Kadzik.

Mr. BURTON. You’re not allowed to speak as counsel to the witnesses before any congressional committee. You can confer with

your client, you can ask—tell your client what to say, but he is the

one that is supposed to respond.

We believe that the people at the White House should try to cooperate and not keep information from the Congress or try to

stonewall us.

At any rate, we sent you a subpoena, and we’re happy that you’re

here, and I look forward to the answers to your questions.

Ms. Crabtree, first of all, let me address you. When did you have

your first conversation with Betty Lambuth about the problem with

some incoming White House e-mails not being properly managed?

Mrs. CALLAHAN. Mr. Chairman, if I may please set the record

straight, first of all, to the best of my—— Mr. BURTON. Would you pull the microphone closer to you,

ma’am?

Mrs. CALLAHAN. Yes. First of all, to the best of my knowledge,

no one has ever approached me to ask me any information up until

this time, so I just want to make that very clear that I have not

declined any previous request for information because no one has

ever approached me prior to this time for information.

Mr. BURTON. OK. Do either one of you have opening statements

you’d like to make?

Mr. LINDSAY. Yes, Mr. Chairman.

Mr. BURTON. OK. Well, Mr. Lindsay, we’ll let you go first, then

we’ll get back to questions.

STATEMENTS OF MARK LINDSAY, ASSISTANT TO THE PRESIDENT AND DIRECTOR OF WHITE HOUSE MANAGEMENT AND

ADMINISTRATION; AND LAURA (CRABTREE) CALLAHAN,

CHIEF INFORMATION OFFICER, DEPARTMENT OF LABOR

Mr. LINDSAY. I would like, sir, just to first address your first

comment, and that is the refusal to provide or to cooperate or come

in for an interview. I was more than willing and have been and

was very surprised when I received a subpoena, because there was

a statement or belief on my part that I was going to have an appointment to come in for an interview. I would have had no objection whatsoever to coming in to an interview, and it was my underVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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standing that my counsel talked to—when I acquired counsel, they

talked to the committee’s counsel, and then the next communication was that we were going to be—where should service be provided for the submission of a subpoena.

I would have been more than willing to come in and engage in

an interview and looked forward to it.

Mr. BURTON. There must have been some miscommunication, because the way our counsel understood it was that you said you

would come in and an appointment had been set, and then the

White House informed us that you had retained counsel.

Mr. LINDSAY. That wasn’t my understanding at all, and I would

have—I had no objection to coming in and talking, whatsoever.

Mr. BURTON. Well, then, if that’s the case and you have no objection, then we’ll retract what we said and we’re glad you’re here.

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

Mr. BURTON. OK.

Mr. LINDSAY. Mr. Chairman, members of the committee, my

name is Mark Lindsay. I’m the assistant to the President for management and administration.

I have been with the White House since June 1997. Before working at the White House, I worked as a staff member and counsel

to Congressman Lewis Stokes, a Member for whom I have had an

enormous amount of respect, and one of the last projects I worked

on was the Ethics Reform Task Force. Because of that experience,

I was brought on board to help the White House deal with and developing a relationship with the Congress and improving how we

were dealing with matters as it relates to our information technology infrastructure.

When I came to the White House, one of the major issues that

I had to deal with is that we had major information problems in

terms of our status of our technology. As a result of engaging in

that investigation and looking into how those things were being

done, we actually were able to develop what I would consider a

good relationship with our subcommittee in Treasury, Postal that

was able to work out our appropriations issues so the White House

could help move forward, past having our funds fenced and moving

toward getting the kind of relationship that the Presidency and the

kind of support the Presidency should receive from the Congress,

and I’m very proud of that interaction.

As far as the matters that are related in this committee hearing

today, I first became aware of the computer glitch in June 1998.

It is the best of my recollection that Ms. Crabtree, a very trusted

and valuable employee for the Executive Office of the President,

brought that matter to my attention.

When I became aware of that particular issue, my first instruction and my first belief was to do whatever was necessary to fix

the computer problem. Please keep in mind, Mr. Chairman, we had

been faced with numerous and countless problems with system failures and systems that were being lost.

One of the things that we were constantly concerned about was

making sure that we maintained the integrity of our computer systems and made sure they continued to operate.

On the point of providing any kind of instruction and intimidation, I did say to Ms. Crabtree that this was a matter that I beVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00146 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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lieved that needed to be kept in bounds with those people who

needed the information to perform repairs to the system. I believed

that very, very much. I knew that in many cases there were investigations being conducted about individuals who were at the White

House. I preferred very much that those individuals not hear about

the way they were being treated by people who were talking

around at the water cooler, but they learned in official processes

and procedures. I felt very, very strongly about that.

But on the point of whether or not I issued any kind of threat

to employees, I can state to you quite emphatically and quite clearly it’s not something that I did, it’s not something that I would condone, and it’s not something that I would ever permit to happen

if it came to my knowledge. As a matter of fact, Mr. Chairman, it

is something that I find very, very troubling, and I would have

done something about it right then.

I was also the ethics officer for my agency, as general counsel at

that time, and following those kinds of rules were very important

to me.

And I think that my record will show that in my interactions

with Congress, the time that I spent here, the people that I worked

with, the one thing that they would say about me is that that kind

of behavior is out of the lexicon for Mark Lindsay.

Let me go on to state that once we did find out about this particular computer glitch problem we then moved forward, or I believe we were moving forward toward fixing this particular issue.

The very first instance, that very first day when I was informed,

the first thing I did is place a call to my boss, Ada Posey, the director of Office of Administration, her boss, Virginia Apuzzo, the assistant to the President for management and administration, who

then directed me to communicate directly with the counsel to the

President and to let them know that this computer glitch had been

discovered.

Once we conveyed that information, I directed my staff to prepare a memorandum which prepared that information in writing to

the counsel expressing the concern about what was included in that

e-mail or what wasn’t included in the e-mail.

One other thing I would say is that at that particular time I was

particularly, when I first heard about it, at least best of my recollection, it was my understanding that e-mails weren’t being put

into the ARMS service system. I was relieved to learn that it was

just e-mails that were coming to the inside, as opposed to all emails not going to that system in the relevant time period. It was

very important to me to make sure that that information was conveyed to the appropriate authorities.

It is important to also understand that the Office of Administration is a custodian of the records for the White House office. We

maintain that information for the White House office. We did not

and never during the time that I was there did I direct any particular search of e-mails, nor would I have without the direction of

White House counsel. I would not have directed the reconstruction

of any kinds of e-mails without the direction and cooperation of my

colleagues in the White House. It just would not have happened.

It was very, very important to me to follow and conduct ourselves

in a way which was fitting with the circumstances that I tried to

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establish with our Treasury, Postal Subcommittee, and that is one

basic principle: I believe very strongly that open and clear communication on what was going on was the only way that we could

move from the position where we were, where in fiscal year 1998

we had all of our information technology funds fenced, and during

that time period, we were unable to make a lot of the improvements, address the—you’ve heard people talk about in the last

panel about server space problems and what not. That was because

we didn’t have the proper resource.

And, Mr. Chairman, some of that was our fault, in terms of how

we went about doing our information planning. We developed a

strategy, working with a partnership with Congress, for how we

were going to move forward and how we were going to build a

much more robust system.

And I’m very happy to report that in November 1998 we were

able to develop a solution for this computer glitch, and then we got

our funding for our Y2K money in that particular year.

Unfortunately, we were very much behind schedule. We were

faced with—my computer experts came to me and said, essentially, ‘‘You will fail to meet your Y2K deadlines. You are not going to

make it. You are starting too late, and you don’t have the appropriate resources in place to be able to achieve the goals you need

to achieve. What you need to do is focus on your mission-critical

systems and on those systems which are mission support and critical to taking care of those needs.’’ Because of that requirement to address the Y2K glitch and to address those issues, the reconstruction of the e-mail was a matter

which had to be placed in the context of maintaining the total email situation.

What we did after we were able to address the Y2K problem, at

the end of February 29, 2000, is we were able to then continue the

efforts.

Please keep in mind that during this relevant time period, in October 1998, we had received information from Northrop Grumman

stating that it would cost us $600,000 just to assess what the scope

of the problem was, just to assess what the scope of the problem

was.

I can report to you today that that $600,000 worth of work has

been completed by the White House staff or the Office of Administration staff that were tasked with working with this, and they are

moving forward with taking steps to address the reconstruction

issue, which is moving forward and would have moved forward,

even given the circumstances that we have here.

With all of that, I say it to emphasize the fact that, No. 1, there

was no particular point in providing any kind of ‘‘coverup’’ of this

particular information. From my perspective, because I didn’t review the document requests that were provided to this particular

committee or to other investigative bodies, I would have no knowledge and did not have any knowledge of what information would

have been produced and what wouldn’t have been produced. We responded to subpoenas and document requests that were passed

through to counsel’s office and passed those documents forward. I

never reviewed those document requests and reviewed them for responsiveness, reviewed them for privilege, or other kinds of asserVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00148 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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tions which one could assert at one particular time. We presented

it and provided that information to those authorities.

Mr. BURTON. You’ve created a number of questions we’ll get to

in just a few moments.

[The prepared statement of Mr. Lindsay follows:]

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Mr. BURTON. Ms. Crabtree, how do you want me to address you?

Ms. Crabtree, or how?

Mrs. CALLAHAN. My correct name is Mrs. Callahan.

Mr. BURTON. Mrs. Callahan. OK. We will address you as Mrs.

Callahan.

Mrs. Callahan, do you have an opening statement?

Mrs. CALLAHAN. Yes, Mr. Chairman.

Mrs. CALLAHAN. Yes, Mr. Chairman.

First of all, again, I’d just like to re-articulate the fact that, up

until this event today, no one has made any attempt to reach me,

unless my attorney has had such requests given to him, but to my

knowledge there has been no attempt to get a hold of me, so, as

a result, I would like to be able to start out, first of all, by introducing myself to you. I’m pleased by the reaction to correct the name.

So I would like you to get to know who I am, because, again,

we’ve never had an opportunity to talk, so I don’t think anyone

here really knows who Laura Callahan truly is.

Just real briefly, I’d like to let you know that I am a career civil

servant. I have almost 16 years of Federal service. I started my career of Civil Service back in 1984, and I have been working in various different capacities.

I came to Executive Office of the President on September 30,

1996 as the Lotus Notes Windows/NT project manager. At the time

that I arrived at the Executive Office of the President back in that

September 30th date, the position of the desktop systems branch

chief was vacant. The position was empty. Mr. Paul Myers was acting in the capacity of the branch chief at the time when I arrived

back in 1996.

In March 1997, the position of the desktop systems branch chief

was announced and I competed for the position, in which I was

then selected as the desktop systems branch chief.

As the desktop systems branch chief, I was responsible for the

customer service support activities, the help desk, as well as the

developmental activities for the desktop systems and the Windows/

NT file servers.

Prior to my coming to the EOP, I worked at the Pittsburgh Research Center for the Centers of Disease Control, National Institute of Occupational Safety and Health. That particular research

center was previously known as the Bureau of Mines Pittsburgh

Research Center, an agency that was abolished and the functions

assumed under the responsibility of the Centers for Disease Control.

For the time that I was at the Pittsburgh Research Center, I

spent 3 years there as the director of the information systems and

technology group responsible for the computing and networking

needs there at the research center.

I am a graduate of Thomas Edison State College in Trenton, NJ,

and I have numerous certificates and a series of awards and recognitions that I have basically been able to achieve over my almost

16 years of Federal service.

I do have available for you, if you would like, a list of those accomplishments, because I think it helps you understand who I am,

because those accomplishments number over 40, and they include

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recognition from not only commands and agencies for which I

worked for, but they also include recognition from outside entities.

What I mean by that, to give you an idea of who I am, the outside awards include the 1995 Supervisor of the Year Award——

Mr. BURTON. Excuse me, Mrs. Callahan. I don’t mean to be impolite, but your entire record of accomplishments is not necessary at

this time. We really want to get on with the questions pertinent

to the hearing.

If you would like to summarize, we’ll be happy to have you summarize. And we’re impressed, obviously, with your credentials, but

we’d like to get on with the questioning.

Do you have anything else you’d like to say?

Mrs. CALLAHAN. I would just like to know, sir, if you’d like them

for the record so you understand who I am.

Mr. BURTON. Sure. We’ll be happy to put those in the record for

you.

Mrs. CALLAHAN. Thank you.

And then I would also like to say that, at the Executive Office

of the President, both in my capacity as the Lotus Notes, Windows/

NT program manager and also in my duties as the desktop systems

branch chief, from what I’ve heard today, being my first exposure

to these activities, I have to say that I’m rather ambivalent at the

moment. I am here voluntarily and willingly to help you with any

information that you need and provide any data that you so desire.

I’m just, quite frankly, a little perplexed as to why it took today’s

event and a subpoena. I would have been more than willing to be

here at any previous time or help you with any information prior

to this.

Mr. BURTON. Thank you. I think we’ve covered that.

My counsel contacted the White House. An agreement was

reached that you and Mr. Lindsay would come down voluntarily,

and then we understood that that was withdrawn and you hired

counsel, and that’s why the subpoenas were issued. Nevertheless,

we’re glad you’re here——

Mrs. CALLAHAN. Excuse me, Mr. Chairman. I just want to make

sure that people understand, this is all very foreign to me. I hired

counsel because I need someone that understands the process, and

being that my counsel, himself, was the chief counsel for the Ethics

Committee, I have been following his guidance just to help me get

through the process, and that was the reason for securing counsel.

Mr. BURTON. That’s fine. We appreciate that.

Now, let’s get back to the questions.

Mrs. Callahan, when did you have your first conversation with

Betty Lambuth about the problem with some incoming White

House e-mails not being properly managed?

Mrs. CALLAHAN. Mr. Chairman, it’s Mrs. Callahan.

Mr. BURTON. Mrs. Callahan.

Mrs. CALLAHAN. I know that’s a hard habit to break.

Mr. BURTON. Mrs. Callahan.

Mrs. CALLAHAN. Thank you.

Mr. BURTON. When did you have your first conversation with Ms.

Lambuth about this?

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Mrs. CALLAHAN. My first conversation is when Betty Lambuth

approached me in June 1998 to advise me that we had yet another

problem with e-mail.

Mr. BURTON. OK. During that conversation, did she show you an

e-mail from Robert Haas or Yiman Salim describing the problem?

Mrs. CALLAHAN. No, sir. It was a very brief interaction for her

to advise me that they had yet another problem with the e-mail

system—— Mr. BURTON. OK. Well, she did not—— Mrs. CALLAHAN [continuing]. Which was not unusual.

Mr. BURTON [continuing]. Show you the memo?

Mrs. CALLAHAN. No, sir.

Mr. BURTON. OK. How significant did you understand the problem to be when you heard about it? Did you understand it to be

pretty significant?

Mrs. CALLAHAN. The initial report from Betty Lambuth was to

the effect that there had been some kind of a discrepancy noticed

with the e-mail system. This was something that had been noticed

and there was no data as of this time to tell us to what degree and

depth the problem really occurred.

Mr. BURTON. Did you tell Ms. Lambuth at that time not to tell

anyone about the problem?

Mrs. CALLAHAN. Not at that time, sir.

Mr. BURTON. But you did later?

Mrs. CALLAHAN. Later on, sir, there was a different series of

events that occurred.

Mr. BURTON. OK. Well, we’ll get to those in just a minute.

Did you instruct her at that time to tell her subordinates working on the problem that they were not to tell anyone about it?

Mrs. CALLAHAN. No, sir. Not at that time.

Mr. BURTON. Did you specifically say that they couldn’t talk to

their bosses at Northrop Grumman?

Mrs. CALLAHAN. No, sir. Not at that time.

Mr. BURTON. Not at that time. Well, when did you tell them that,

and what did you tell them?

Mrs. CALLAHAN. Perhaps it would help, sir, for yourself and the

committee to understand the series of events. Ms. Lambuth first

reported that there had been a detected problem with the e-mail

system—— Mr. BURTON. We can’t hear you. Can you pull the microphone a

little closer, please.

Mrs. CALLAHAN. We had learned about the problem through

Betty Lambuth advising me that we had an anomaly with the email system. My first reaction to her was what it has always been

while I was employed at the Executive Office of the President, and

that was the fact that, OK, this is not new. We’ve had numerous

problems with the e-mail system. It was very poorly designed and

very poorly constructed by a contractor prior to Northrop Grumman. So, as a result, anomalies were fairly common, and, as our

normal process, when an anomaly occurs our first order of business

is to figure out what we’re dealing with—what is the situation,

what is affected, what is the size and scope of the problem and the

depth—so that we can figure out what the situation is and figure

out the appropriate corrective measures. So that was the focus of

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the first discussion with Ms. Lambuth was to figure out, indeed,

what was this anomaly, and I instructed her to do some diagnostic

research activities to find out the scope and depth of the situation.

Mr. BURTON. Yes. OK. So, when the meeting took place with all

the people who were at the first table here today, what did you say

to them during that conversation about the confidentiality of the

records?

Mrs. CALLAHAN. Mr. Chairman, prior to that, there are a couple

key events I think would help the committee——

Mr. BURTON. Well, I’m concerned about that meeting at this

point.

Mrs. CALLAHAN. I can’t answer, sir, without giving you the appropriate context, because then you won’t be able to understand

the reason for the meeting.

Mr. BURTON. OK. Give me the context.

Mrs. CALLAHAN. Thank you, Mr. Chairman. I appreciate that.

I had notified Mr. Lindsay immediately that we had an anomaly

situation and that we had begun the research efforts. Very shortly,

within a period of—and I’m working off of memory, bear with me—

approximately a day or two of time passing, Betty Lambuth returned back to me very anxious, very nervous and concerned. She

brought it to my attention the fact that Mr. Bob Haas had found

e-mail messages pertaining to Monica Lewinsky and Ashley

Raines.

The reasoning for this activity was unclear to me and it was

rather perplexing, because I had not instructed the contractors to

do any type of subject matter search at this point in time, nor had

I—would I have any role to do any of those type of searches during

my employment at the EOP other than functioning as a normal

employee responding to normal document searches and requests.

So I was very concerned why all of a sudden we had specific email being brought to my attention in a very, very short period of

time when we did not even fully understand the size and the scope

of the situation.

So I had talked to Ms. Lambuth and asked her very specifically

what was the situation, why did Bob take it upon himself, Mr.

Haas, to do these searches.

She was unable to answer that question for me and re-articulated something that was a regular pattern at the EOP, and that

regular pattern was the fact that Mr. Haas was a very talkative

individual and very inquisitive individual, similar to, like, a child

on the first, you know, on the day of Christmas, waking up first,

running down, and opening up all the presents to see what is inside before anyone else had a chance.

So, as a result of her concern and her repeated issues working

with Mr. Haas in the past, and the fact that he had somehow taken

it upon himself—through whatever means I am not sure—to do a

search and had already found these documents dealing with Ashley

Raines and Monica Lewinsky was a concern of both Betty Lambuth

and myself.

So we had discussed options on how to approach this, in which

case we decided that we would get a meeting together with all of

the team members, including Mr. Haas and Betty Lambuth, and

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basically walk them through the standard procedures of how we

handle these type of events at the EOP.

And what I mean by that, as far as the ‘‘standard procedures’’

and what they were advised at the meeting was the fact that the

normal procedures are, if you are receiving any inquiries from folks

such as the press, to please refer them to the Office of Public Affairs, and if anyone else had any particular questions or had a need

to know, to please refer them to either myself or Mr. Lindsay.

So Betty and I had made the decision jointly to have that meeting, and I, in turn, left and went and advised Mr. Lindsay of the

situation—that Mr. Haas had found this information. We did not

know what his motivation was behind that. And there was already

people in the hallway starting to discuss this. And obviously, as we

are all aware from the newspapers and the media, the other events

going on, when I advised Mr. Lindsay of this he concurred that this

was a situation that we needed to be careful of because it was sensitive. And, as such, Mr. Lindsay participated in the team conference call meeting in which all of the members of the team were

present and Mr. Lindsay was there via conference call, and re-articulated the standard operating procedure. And in absolutely no

way did I ever make any personal threats to any individuals during

that timeframe.

Mr. BURTON. We had, I think, five people there. Three of them

indicated that they had been told to be quiet, to keep a lid on this,

that there was a threat that they might even go to jail if they said

something. There were three of them that recalled that. One of

them even told her supervisor that she couldn’t tell him anything,

even though he threatened her with reprisals, because she said she

didn’t want to go to jail.

Now, how did they get that idea, do you think?

Mrs. CALLAHAN. Mr. Chairman, first of all, from what I have

heard today, there’s very different recollections of those individuals,

and——

Mr. BURTON. Well, excuse me for interrupting, three of them

have referred to the jail comment, two of them said they don’t recall that, but they didn’t refute it. So no one has refuted it, but

three have said that they felt that there was a possibility they

would face jail. Now, how do you suppose they got that feeling?

Mrs. CALLAHAN. Mr. Chairman, I could tell you and the other

members of this committee I did not threaten them with any sense

of jail for several reasons, and first——

Mr. BURTON. Did you threaten them with dismissal or any kind

of reprisals?

Mrs. CALLAHAN. No, sir, because there—they would be idle

threats. I have no authority, first of all, to carry out these type of

threats.

Mr. BURTON. Yes.

Mrs. CALLAHAN. And, No. 2, it is not anywhere in my demeanor

and my past practice or my character to do those type of threats.

Mr. BURTON. OK. Well, let me ask Mr. Lindsay a couple of questions.

Mr. Lindsay, do you recall the phone call in question?

Mr. LINDSAY. No, I don’t.

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Mr. BURTON. You don’t recall the phone call with them in Mrs.

Callahan’s office?

Mr. LINDSAY. No, I don’t, sir.

Mr. BURTON. You don’t recall? Well, during that—the selective

memory loss of people that come to us from the White House just

mystifies me.

Mr. LINDSAY. I assure you, sir, it’s not selective.

Mr. BURTON. This was a pretty significant conversation. They

were talking about e-mails that had been lost, which had been subpoenaed by myself, the independent counsel, and the Justice Department, and there are all these people from Northrop Grumman

in then Ms. Crabtree or Mrs. Callahan’s office, and you don’t recall

talking to them about that?

Mr. LINDSAY. No, sir. And I think that one of the things, to place

this into context, is that at that present time I was handling two

other investigations directed by Congress over the handling of classified materials, which I considered very, very serious.

Mr. BURTON. Yes.

Mr. LINDSAY. And I had numerous conference calls over those

materials, where I worked with Chairman Solomon’s committee

and the House Permanent Select Committee on Intelligence.

Mr. BURTON. Yes.

Mr. LINDSAY. I also had investigations that were going on dealing with those things. Those were investigations that I was tasked

with dealing with Members and dealing with other individuals in

resolving those issues.

Mr. BURTON. Were you aware of the subpoenas that had been

issued by the House, this committee, and the independent counsel

asking for documents pertaining to a whole series of investigations

involving the FBI files, the Travel Office investigation, the——

Mr. LINDSAY. Absolutely, sir.

Mr. BURTON. Then, if you were aware of those and you knew the

e-mails were relevant to our investigations, why wouldn’t this click

on in your brain?

Mr. LINDSAY. Because, as Mrs. Callahan stated, my instruction

from the very first instance was to fix whatever problem was there,

but to also identify the scope and breadth of what the problem was.

Mr. BURTON. Yes.

Mr. LINDSAY. This was very early in the situation in terms of

what was going on.

I didn’t know for sure that information had not been provided to

you or any other committee. I knew that document productions had

been made. Of course, that was very obvious and common knowledge.

Mr. BURTON. OK. Well, let——

Mr. LINDSAY. What I didn’t know was that the information contained in these e-mails was e-mails that was responsive to the document request that you are referring to.

Mr. BURTON. Let me—you had e-mails that had been lost since

September 1996. The campaign finance investigation dealt with

that timeframe. Money came in from all over the world into campaigns. There was a serious investigation going on. And the e-mails

that were lost during that timeframe, you didn’t even—that didn’t

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click into your mind that they might have been relevant to that investigation?

Mr. LINDSAY. Well, first off, Mr. Chairman, I would say that

whether e-mails were lost or not is a conclusion that was—a technical conclusion that had not been reached yet. What I asked be

done is that there be an investigation to find out what the nature

of the problem was.

Mr. BURTON. OK.

Mr. LINDSAY. So I think it would be premature for me to say

that. And, as Mrs. Callahan stated—— Mr. BURTON. Let me just ask one more question here, and then

we’ll yield to my colleagues.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. You do not remember saying anything about this

in a telephone conversation to the people that were at that meeting? All five of them remember, but you don’t?

Mr. LINDSAY. No. Like I said, Mr. Chairman—— Mr. BURTON. You don’t remember?

Mr. LINDSAY. I don’t remember.

Mr. BURTON. OK. You don’t remember.

And, Mrs. Callahan, you don’t remember making any kind of a

threat to any of these people, even though they all remember being

concerned about what was said at that meeting, and so concerned

that they went to Starbuck’s and across the street to a park to talk

about these things? You don’t remember making any kind of a

threat of any type to them?

Mrs. CALLAHAN. Mr. Chairman, I did not threaten anyone. I advised them of the standard practice and the procedures to handle

sensitive situations.

Mr. BURTON. Mr. Waxman.

Mr. WAXMAN. Mrs. Callahan, you’ve said you worked for the Federal Government since 1984; is that right?

Mrs. CALLAHAN. Yes, sir.

Mr. WAXMAN. And are you a career civil servant or a political appointee?

Mrs. CALLAHAN. I’m a career civil servant, sir, with absolutely no

desires or aspirations for the politics.

Mr. WAXMAN. In fact, I understand you are a registered Republican, or at least you were at the time all of this happened; is that

right?

Mrs. CALLAHAN. Yes, sir, I was, and I still am.

Mr. WAXMAN. What is your area of expertise?

Mrs. CALLAHAN. My area of expertise is in the computer science

arena. I have been working in that capacity since my entrance into

the Federal civil service back in 1984.

Mr. WAXMAN. Have you received any Federal awards for Federal

service?

Mrs. CALLAHAN. Yes, sir. In fact, I’ve submitted for the record

here, I have over 40 different awards. Most recently are two from

last week for exemplary achievement. I also have awards from

independent parties, such as being named one of the Nation’s top

webmasters in 1996, I believe was the year, and in 1995 I received

the award from the Federal Executive Board, the Bronze Award,

for being supervisor of the year. And I have a litany of other acVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00163 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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complishments and achievements for which I have been recognized

for my work.

Mr. WAXMAN. How long were you employed at the Executive Office of the President [EOP]?

Mrs. CALLAHAN. I was employed from September 30, 1996 until

about October 10th or 11th, 1998.

Mr. WAXMAN. And what were your duties at the EOP?

Mrs. CALLAHAN. My initial duties, I was hired to be the Windows/NT and Lotus Notes program manager. That’s what I started

out as. And then I competed for and was selected into the position

of the desktop systems branch chief in March 1997, where I then

took on the responsibilities of customer service, support, help desk,

as well as the development activities for the desktop systems,

which included the desktop, themselves, the computers on the people’s desks and what they saw, as well as the Windows/NT servers.

Mr. WAXMAN. Where do you work now?

Mrs. CALLAHAN. I currently work at the Department of Labor. I

am—just to give you a little bit about myself there, I am in the

senior executive service at the Department of Labor——

Mr. WAXMAN. Briefly, because I have questions I want to ask

about the issue under investigation today.

Mrs. CALLAHAN. Certainly. And I’m the special——

Mr. WAXMAN. Aside from investigating your background.

Mrs. CALLAHAN. Thank you. And I’m the Special Assistant for Information Technology, where I perform the duties of the Deputy

CIO, and I am the Director of the Information and Technology Center.

Mr. WAXMAN. I believe you learned about the Mail2 problem in

June 1998. How did you find out?

Mrs. CALLAHAN. Ms. Betty Lambuth brought it to my attention.

Mr. WAXMAN. And what were you told about the nature of the

problem?

Mrs. CALLAHAN. This was very much unknown. We just knew we

had some type of an anomaly. We didn’t even know the size and

scope of the situation, and we didn’t know at that time if it was

strictly one of the mail servers or all of the mail servers. We just

knew we had a problem.

Mr. WAXMAN. And what was your reaction to the problem?

Mrs. CALLAHAN. I go into my normal diagnostic behavior. I instructed her that we have a situation, that we need to figure out

what it is, and asked her to go back and look at the situation and

research it to find out the scope of the situation, how large it was,

did it affect all of the e-mail servers, some of the e-mail servers,

all of user accounts, some of the user accounts, certain types of email—basically diagnostic type discussion.

He was very concerned that we go and do some research to find

out whose e-mail this affected, how many people, and basic diagnostic information. He re-articulated the fact to find out.

Mr. WAXMAN. I understand one of the first things that you did

was to call a meeting in your office on June 15, 1998, with the Northrop Grumman employees who were responsible for the ARMSLotus interface. These were the same individuals that testified on

the first panel.

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There have been allegations that you threatened them with jail.

Mr. Burton has already asked you about that, but they told us—

some of them, anyway, said that they thought you were threatening them with jail if they talked about the e-mail problem. Mr.

Haas claims that you told him there would be ‘‘a jail cell with his

name on it’’ if he mentioned the problem to his wife. Others who

were present for this meeting, like Ms. Salim and Mr. Spriggs,

have said that they don’t remember you making any threats.

I want to ask you about this meeting and what you said.

At that meeting, did you tell anybody to destroy any e-mails or

cover up the problem?

Mrs. CALLAHAN. On the issue of destruction of e-mail, I have

never given any instruction to destroy any e-mail messages. I want

to make sure that that’s very perfectly clear to everybody.

In regards to the meeting, what prompted the meeting was the

fact that a Northrop Grumman employee, Mr. Robert Haas, had

brought to Betty Lambuth’s attention that he had found e-mail pertaining to Ashley Raines and Monica Lewinsky, when there had

been on direction, to my knowledge, given to him to conduct such

a search, and why—quite frankly, it perplexes me. I don’t understand his motivation at this point in time, because we were in a

diagnostic mode, trying to understand, first of all, what servers

were involved and then which e-mail users on which server were

impacted, and then, when we could figure out that, we had to figure out how many e-mails for each of those users were, indeed, affected. We did not know that at this time.

I’m also a little perplexed, quite frankly, if I may. I’ve heard allegations that have been made and I’ve read them in the Washington

Times, and it makes me, quite frankly, a little angry—well, it

makes me a lot angry for several reasons, because they are strictly

allegations. But, in addition to that, I find it rather mystifying that

someone like Betty Lambuth can make a statement today about

being threatened by myself and feeling so concerned that she’s

going to jail by this alleged threat that she felt it to make the decision herself to have these meetings offsite, but yet this is the same

individual who, after leaving the EOP in July, accepted an invitation to my wedding and attended my wedding in September of that

very same year, in September 1998, bringing me a gift and wishing

me well. I’m just, quite frankly, perplexed by all of the different behaviors.

Mr. WAXMAN. Let me ask you this about Mr. Haas, because he

made the accusation, and I thought he was pretty sincere. He did

tell us he made a flippant comment to you, and your response

might have been a flippant response, because sometimes when people say something flippant they get a similar response, but he

didn’t take it to be flippant. He said you responded—I think he

asked, ‘‘What will happen if I tell my wife or tell people?’’ And you

said, ‘‘There will be a jail cell with your name on it.’’ Could that

have been the way this whole thing took place and you just don’t

recall it?

Mrs. CALLAHAN. I do not ever remember, nor would I have ever

said anything about a jail cell. And, quite frankly, I think Mr. Haas

characterized himself with his flippant comments. I would suggest

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that he may be either having bad recollection or may have an overactive imagination with regards to the threat being made to him.

Mr. WAXMAN. Well, you could have said that, ‘‘If this information

gets out, it would be in violation of the contract, the law,’’ something like that?

Mrs. CALLAHAN. Mr. Waxman, first of all, we didn’t know what

the information was. We were still trying to—— Mr. WAXMAN. Well, you knew that the President was being investigated and the Congress and the independent counsel and everybody was trying to get documents and e-mail, that there were

a lot of things that weren’t on that whole system that was supposed to enable people to get all the documents. You knew that

right away, didn’t you?

Mrs. CALLAHAN. At that point in time, we did not know. The only

knowledge that I had was the fact that Mr. Haas had found some

e-mail messages, four, that dealt with Ashley Raines and Monica

Lewinsky, and, as a result of that, I had the meeting in order to

advise them not to have any open discussions about this because

I had Betty Lambuth approach me and tell me she was concerned

that Mr. Haas was unable to control himself and was talking about

this openly, and she wanted some reassurance, you know, given to

her team about the standard practice and procedure for this, and

that was the focus of the meeting.

And, also, so you can understand, I was only involved in this

process for a period of maybe 1 to 2 weeks. My memory doesn’t recall the exact number of days, but as soon as my boss, Kathy Gallant, returned, the project was handed over to her and she saw it

through from that point on, so my involvement is very limited at

the very early stages of this.

Mr. WAXMAN. But you did ask them at that meeting not to talk

about it publicly; is that right?

Mrs. CALLAHAN. I advised them of the standard procedures, and

the fact that if they were approached by the press to talk to the

Office of Public Affairs, and if anyone had any specific questions,

to please address them to myself and Mr. Lindsay.

Mr. WAXMAN. Did you think that was a reasonable request of

them, given the circumstances?

Mrs. CALLAHAN. Yes, sir.

Mr. WAXMAN. And was Mr. Lindsay present at that meeting?

Mrs. CALLAHAN. Mr. Lindsay was conference called in. It was a—

it was during a time where it was extremely busy and there was

a lot of activity going on, and his availability was very, very limited, so we conference called him in.

Mr. WAXMAN. Did he threaten anybody in that conference call?

Mrs. CALLAHAN. Absolutely not. I never heard Mr. Lindsay make

any threats.

Mr. WAXMAN. I see my time has expired.

Mr. BURTON. We have a vote on. We’ll stand in recess until the

call of the gavel.

[Recess.]

Mr. BURTON. The problem is we had the Speaker of the House

making a point of order on the floor dealing with the chaplain, and,

unfortunately, that had to be attended by a lot of the Members.

I now yield to Mr. Souder.

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Mr. Souder.

Mr. SOUDER. I thank the chairman. And I want to make it clear,

Mrs. Callahan, if I mistakenly say ‘‘Crabtree,’’ please forgive me.

I know Mr. Lindsay made that mistake twice in his opening statement, as well. Nobody is deliberately trying to make any mistakes.

When you get mentally on one track, it’s very easy to do that.

I want to start over and go—you laid out kind of how you saw

the perspective of the meetings, but I want to go back through

some specifics with that.

Did you—I understand you informed Mr. Lindsay immediately

after the first meeting with Ms. Lambuth. Was Paulette Cichon,

then Deputy Director of White House Office of Administration,

present when you informed Mr. Lindsay of the problem?

Mrs. CALLAHAN. No, sir. Paulette Cichon was not available at the

time. I remember stopping by her office and she wasn’t there, and

that’s when I was able to find Mr. Lindsay.

Mr. SOUDER. Was anyone else there when you talked to Mr.

Lindsay?

Mr. BURTON. Excuse me. Would you pull the microphone close.

Your voice is very soft, and it is very difficult to hear you. Thank

you.

Mrs. CALLAHAN. I’m sorry?

Mr. SOUDER. Was anyone else present when you gave the message to Mr. Lindsay?

Mrs. CALLAHAN. Not that I recall, sir.

Mr. SOUDER. Did he give you a message to convey back to Ms.

Lambuth or anybody else who was working there? Did he say,

‘‘Please communicate this to them?’’ Mrs. CALLAHAN. Not at that time, sir. No.

Mr. SOUDER. When you say ‘‘not at that time,’’ you’re saying he

didn’t give you a message to convey to them at any point? What

time would he have told you? You’ve said that a number of times.

Mrs. CALLAHAN. Well, the first time I advised Mr. Lindsay of the

problem was the fact that we had yet another e-mail problem. That

was the first notification, which, again, is not unusual, given the

fact that e-mail problems were frequent at the Executive Office of

the President because of the very poor design of this system and

the severe constraints of the hardware. So I had given him the first

notification that we had an anomaly, and he basically told me,

‘‘Well, we need to find out what’s going on,’’ and went through the

discussion I’ve mentioned earlier about diagnostics, and at that

point I left his office.

Mr. SOUDER. At any point in future meetings did—you’ve maintained that he—that you didn’t use—did he use the word ‘‘jail,’’ ‘‘arrested,’’ or anything like that?

Mrs. CALLAHAN. I’ve never heard Mr. Lindsay use those words.

Mr. SOUDER. In this code that you said you told the employees

about, is that what you referred to it, as a code?

Mrs. CALLAHAN. It’s standard operating procedures.

Mr. SOUDER. In standard operating procedures, what is that if

somebody disobeys you?

Mrs. CALLAHAN. We didn’t talk about disobeying. I just gave instructions to the staff on what the procedures were and articulated

to them that if anyone is inquiring from outside the EOP, such as

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the press, they were to talk with the Office of Public Affairs and

refer them to that office.

Mr. SOUDER. So neither you—to your knowledge, nothing came

from Mr. Lindsay or yourself that said if they didn’t follow the

standard operating procedures they would have any problems?

Mrs. CALLAHAN. No, sir.

Mr. SOUDER. So it was just kind of, like, being friendly to them,

and just saying, ‘‘Look, this is the way we do business?’’ Mrs. CALLAHAN. Just—we articulated the standard operating

procedures, and none of the individuals involved ever came back to

me, up until what I heard today, to even express a concern that

they had even felt threatened to begin with.

Mr. SOUDER. Mr. Lindsay—— Mr. LINDSAY. Yes, sir?

Mr. SOUDER [continuing]. I assume that’s your testimony, as

well, that you did not tell Mrs. Callahan that there would be any

punishment?

Mr. LINDSAY. Absolutely. There was—I had no power to punish.

The statement I’m very perplexed about—— Mr. SOUDER. Can I interrupt you just a second?

Mr. LINDSAY. Sure.

Mr. SOUDER. None of us are alleging that you or Mrs. Callahan

had any power to punish.

Mr. LINDSAY. Yes.

Mr. SOUDER. You can make a threat or an implied threat that

someone else can have the power to punish, whether or not you do.

So I’m not accusing you of saying you had the power to punish. The

question is: did you imply back that if any of them leaked this information or let anybody outside or didn’t follow standard operating procedures that they could be disciplined?

Mr. LINDSAY. No, I did not.

Mr. SOUDER. Mrs. Callahan, again, did you convey a message

from—any kind of message from Mr. Lindsay to Ms. Lambuth?

Mrs. CALLAHAN. The only thing I conveyed was the fact that we

needed to go through our diagnostic process.

Mr. SOUDER. And how do you think they interpreted that? In

other words, given the fact that you had talked with Mr. Lindsay,

clearly were going up the chain of command, and then coming

back, how do you think they interpreted that? And could they have,

in fact, felt intimidated by the way it was delivered? Or do you

think they just behaved irrationally in their concern?

Mrs. CALLAHAN. First of all, sir, the first interaction was between

myself and Ms. Lambuth. The other staff members weren’t involved. In that regard, I just communicated back to her the need

to do the diagnostic activities. It wasn’t until after it was brought

to my attention that we had an individual on the team, Mr. Haas,

talking about this and there was hallway chatter going on that the

second meeting was prompted.

Mr. SOUDER. Did Ms. Lambuth request to meet with Mr. Lindsay? Did she request a meeting when she talked to you?

Mrs. CALLAHAN. I’m not aware of that.

Mr. SOUDER. Did she indicate that she wanted a meeting to hear

the message directly, any kind of message from Mr. Lindsay?

Mrs. CALLAHAN. I don’t recall that at all.

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Mr. SOUDER. And I do want to correct one thing that you had

said in the record. You said that you were confused that—because

she had given you a present, I think, for your wedding after the

period of time where supposedly she felt threatened. Mr. Hawkins

communicated to us that she felt she was in your pocket. In other

words, in the first panel, he was accusing her of being too close to

the contracting officer. She said on the record that she wasn’t so

close to you that it would be dependent. But, just to make the

record clear, she was hardly viewed by this panel or the Members

of Congress here or anyone else as hostile to you, and she was relaying the facts as she heard them, but, in fact, she was accused

by another witness on the panel as being too close to you and listening to you rather than to her direct supervisor, which is a little

bit different implication of that.

Mr. Lindsay, did you ever meet Ms. Lambuth to hear her message or to give any messages to her face-to-face?

Mr. LINDSAY. I don’t have any recollection of a specific meeting

with her at all, nor, in the normal course of things—the thing to

keep in mind is we had over 200 folks who work for the agency.

As I mentioned before, we had numerous investigations, we had

other matters. I was the general counsel. And, frankly, this whole

genre was a little bit out of my bailiwick. So, frankly, my information, I used the conduits that I had and the people that we’d been

able to work with and had a trusted relationship, Laura being one

of those people, to act as a conduit, and the associate director for

information systems.

So it would be—it was impractical for me to go and have individual discussions with every single person in a particular matter.

In addition to that, the—because when I talked with Mr. Hawkins at a later date, when he raised an issue of whether or not we

were properly acting within the scope of the particular contract, I

believed very much that it was within scope, and their attempts to

acquire additional funds to perform this work was inappropriate, so

we did have those kinds of discussions about those matters and no

discussions of intimidation or anything else came up.

Mr. SOUDER. I want to repeat something I said earlier. One of

the difficult things, as a Member of Congress, as we get into this,

is both of you seem to be very skilled public servants. You both

seem very nice and very pleasant. The truth is that so have most

people who have been in front of us. This isn’t anything personal

with anybody, but over time, over 5 years, we’ve lost a tremendous

degree of confidence in the ability to get truth, and that isn’t a reflection on any individual, but we’re trying to do our job of getting

to the bottom of this.

Mr. LINDSAY. I have a very significant degree of respect for the

congressional process and what happens based on my experience

and the time that I worked here, so I very much respect that process.

Mr. SOUDER. And we’ve had a big conflict over the period of time

at hand, 1996 to 1998. We’ve had a very difficult time with witnesses fleeing the country, with trying to pursue that. And both of

you have talked about how busy you were, and I understand trying

to recall conversations when you have multiple investigations

going, you don’t remember necessarily particular meetings or what

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was said at something, but—particularly early on. However, we

have a memo that was sent to John Podesta, assistant to the President at that time, the deputy chief of staff, from a Virginia Apuzzo

that appears—there’s a handwritten note to Chuck, who we believe

is Charles Ruff, that is warning them about this, and clearly—I

mean, I don’t know how often this kind of memo would go up to

this high a level in the White House, as well as to the legal counsel

of the White House saying, ‘‘Look, this could be a super big problem.’’

To me, the impression I’m getting is that you had two more-important investigations than this one, but is that unusual to have

a memorandum go to John Podesta saying that ARMS is an information system designed to provide comprehensive archives; that, in

fact, a lot of these archives aren’t there—describes a description of

it? Why would something like this go to the very top echelons of

the White House and to the top of his legal team?

Mr. LINDSAY. Well, I can’t answer the specific reason as to why

the assistant to the President for management and administration

transmitted that memorandum to the chief of staff. What I can—

to the deputy chief of staff. What I can say is that I conveyed this

information.

You have to understand, I mean, I’ve practiced law and I understood the circumstances that the folks in the counsel’s office were

in, and I knew, too, that for me to try and act on their behalf in

these types of matters was inappropriate. I knew what we needed

to do was to convey—try to collect the information as soberly and

deliberately as we could and then present that information.

And I’ll be perfectly frank with you. As soon as we provided this

information that I provided to my superiors, I could put a bit of a

sigh of relief, because, frankly, we had conveyed it, and then it was

up to them to provide the—particularly the legal folks—to provide

the legal analysis based on the information, the evidence, and the

materials that they had which I didn’t have access to at that particular time.

Mr. SOUDER. You’re also used to working with politicians, and I

think we can all understand that what we heard today is it is not

even plausible that there was a backup for most of these incoming

e-mails, which is a limited universe, but critical incoming e-mails

that could have been coming from John Huang or Charlie Trie or

the Democratic Committee and taken out.

Obvious politicians and the legal attorneys at the White House

realized this was a potential nuclear bomb. This isn’t just kind of,

‘‘Oh, this is a little glitch in the computers.’’ This is potentially

hundreds of thousands of relevant—not all of them relevant, but

buried in that that may have been, in fact, deleted because there

was no longer a backup system to catch it.

Mr. LINDSAY. I have no information to support that supposition.

Mr. SOUDER. Other than it went to the top echelons of the White

House immediately after you had had a meeting.

Mr. LINDSAY. I know that there was a transmission of that information, but that was in the normal course of things. I met with

Chuck Ruff at the counsels’ meeting twice a week.

Mr. SOUDER. Yes.

163

Mr. LINDSAY. And we would discuss computer types of issues.

And this was the proper forum to do it and to convey that to him

so that they could make the appropriate determination.

Mr. BURTON. The gentleman’s time has expired.

Mr. Waxman.

Mr. WAXMAN. Mr. Chairman, I am surprised and very disappointed to have learned, just walking into the meeting a few

minutes ago, that you have unilaterally disinvited Beth Nolan, the

White House counsel, to testify today. She was on the agenda to

testify.

Mr. BURTON. If the gentleman will yield—— Mr. WAXMAN. I won’t yield at this point, but I will when I have

completed.

Mr. BURTON. OK.

Mr. WAXMAN. I’m disappointed because, as basic fairness, both in

treating the minority and in this hearing, we should have Beth

Nolan here today to testify. She can give us information about

Monica Lewinsky and the e-mails, and clarify all the innuendo that

has been raised.

Mr. BURTON. Will the gentleman yield?

Mr. WAXMAN. Not yet.

Mr. BURTON. OK.

Mr. WAXMAN. And for us not to even have been consulted about

taking her off the schedule, even if she is going to be invited next

week, there’s this huge gap where you have out there statements

that were made, a lot of confused statements that were made, with

all sorts of accusations, which I think could have been cleared up

and should have been cleared up in the same day at the same hearing.

I’ll yield to the chairman.

Mr. BURTON. Let me just say that we have information that we

have received at e-mails involving the Vice President, and we had

some other information that was conveyed to us today. The staff

and I talked about it, and we agreed that, rather than have Ms.

Nolan come up twice, once today and again next week after we reviewed the Vice President issue and the other things that we received today, we thought it would be better for her and for the committee for us to do it all at once.

Mr. WAXMAN. Well, reclaiming my time, I think what has happened, Mr. Chairman, is that you haven’t been able to establish

your case with any clarity that anybody did anything wrong, and

therefore you are trying to find another set of arguments to come

in with so you can make some other accusations and then have her

answer those accusations.

Today, we have had testimony from people who said they were

threatened, they were told to keep quiet. We had a witness who

said she heard from somebody else about what was in these e-mails

and how damaging they were. Of course, that was contradicted by

other testimony. But the person who could give us information that

would clarify whether the e-mails were actually given to this committee and to the independent counsel was Ms. Nolan, the White

House counsel.

You may have consulted your counsel, but you didn’t consult the

minority, and I think it was an improper way to treat the minority

164

on this committee, and certainly an improper way to conduct a

hearing that should be fair. And I think by this action it is clear

that it is not fair.

But I want to pursue some questions with the witnesses that are

here today, so maybe we can get to some of the facts.

Mr. Lindsay——

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN [continuing]. Just by way of background, just summarize your career very quickly in the Executive Office of the

President prior to your current job.

Mr. LINDSAY. I’ve had several posts within the Executive Office

of the President. I started when I left as working for Congressman

Louis Stokes. I joined the Executive Office of the President as the

general counsel for the Office of Administration. In that position,

I worked on many legislative matters and legal matters within the

Office of Administration, which primarily comprised most of the

business functions that went on and providing administrative support to the White House.

After a period of time, I was promoted to be chief of staff and

general counsel within the Office of Administration and performed

that position for a while, and then was moved to be counselor to—

senior counselor for management and administration within the

White House office, where I worked directly for Ms. Virginia

Apuzzo, the assistant to the President for management and administration.

At some point after that, the director of the Office of Administration left and I was requested by my superior to rejoin the Office

of the Administration as its director because we had pending testimony date before Congress that was coming up. I was familiar with

some of the issues and I was tasked with rejoining the Office of the

Administration and testifying before Congress, which I believe

went quite successfully.

Mr. WAXMAN. Is the Office of Administration part of the White

House?

Mr. LINDSAY. It is not, sir. It is—the White House office is a separate agency which receives its own appropriation.

Mr. WAXMAN. Does it play a political role? Does the Office of Administration play a political role?

Mr. LINDSAY. No. The objective of the Office of Administration is

to provide common administrative support for the Executive Office

of the President. Most of the people, the vast majority of the people, all but at that time probably six individuals who worked for

the Office of Administration, were career individuals who had

worked for the administration, administration after administration,

and served the Presidency and not a particular President.

Mr. WAXMAN. At the time of the discovery of this Mail2 problem,

what was your position at the Office of Administration?

Mr. LINDSAY. I was the chief of staff and general counsel.

Mr. WAXMAN. And how did you learn about this problem?

Mr. LINDSAY. Mrs. Callahan came to me and let me know about

it.

Mr. WAXMAN. And what did you do after you learned about the

problem?

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Mr. LINDSAY. Well, the first thing was to gather more information as to what was going on, and I remember asking her to do—

to look into it a little bit further, and providing her with instructions that we needed to fix it. We want to get this stuff squared

away, whatever it was. I didn’t know or have any real detailed understanding of what was necessary to do that, but I saw, as a administrative manager there, that one of the things that was important for me to do and I saw as part of my duty is to, at least, from

the very beginning, push toward resolution of the problem, whatever its scope.

Mr. WAXMAN. There have been allegations that you or Mrs. Callahan threatened Northrop Grumman employees, telling them that

they could face jail if they discussed the mail problem with anyone.

Did you threaten any of these employees?

Mr. LINDSAY. Mr. Waxman, absolutely not. I didn’t and I’m not

aware of any threats being made by any Government employee to

any Northrop Grumman employee.

Mr. WAXMAN. What did you tell the Northrop Grumman contractors?

Mr. LINDSAY. I’ll be perfectly honest with you: I don’t have a

recollection of having specific direction and conversations with

them. My conduit for dealing with the contractors were Government employees. The contractors did not report to me, they did not

provide work reports, none of those things. They all went to the

technical staff that was there, and then those technical staff people

would then, where appropriate, bring matters to my attention.

Mr. WAXMAN. Did you want to limit the discussion of the problem to the people involved in making the repairs?

Mr. LINDSAY. Absolutely.

Mr. WAXMAN. And was that an attempt to cover up the problem?

Mr. LINDSAY. Absolutely not.

Mr. WAXMAN. Did you instruct them not to tell their managers

about the problem?

Mr. LINDSAY. No, I did not.

Mr. WAXMAN. Did you, yourself, brief Northrop contract manager

Steve Hawkins about the problem?

Mr. LINDSAY. Yes, I did.

Mr. WAXMAN. Now, after hearing about the e-mail problem, you

also specifically instructed that backup tapes containing the nonarchived e-mails be saved; isn’t that right?

Mr. LINDSAY. That is correct, sir.

Mr. WAXMAN. And why did you do that?

Mr. LINDSAY. I did that because my state of knowledge as to the

volatility associated with the systems that we had, I wanted to

make sure that we took—whatever steps necessary were there to

preserve the information. That’s one thing that I saw as a primary

responsibility of mine is to preserve information, to make sure that

their records were kept at least in one of those three places where

they could reside on someone’s computer or on the server, on the

ARMS system, or on backup tapes.

Mr. WAXMAN. I understand you informed senior officials at the

White House about the e-mail problem. In fact, I have a June 19th

memo to John Podesta, then the deputy chief of staff, that you

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helped draft that describes the problem. I want to ask you about

this.

Who did you inform at the White House about this problem?

Mr. LINDSAY. My immediate superior, the director of the Office

of Administration, and also Virginia Apuzzo, who is my boss also,

and the assistant to the President for management and administration.

Mr. WAXMAN. Did you inform the White House counsel’s office?

Mr. LINDSAY. I was directed by my boss to contact the counsel

to the President immediately.

Mr. WAXMAN. And what did you tell them?

Mr. LINDSAY. Told him essentially the material or the information that is contained in the memorandum—that there was a glitch

with the computer system where incoming e-mails may not have

been collected by the ARMS records management system.

Mr. WAXMAN. And what was the response of Mr. Podesta and

Mr. Ruff, then the White House counsel?

Mr. LINDSAY. Mr. Podesta’s response was just to ask if I had had

any conversation with Mr. Ruff, and, frankly, I didn’t provide any

other briefings or other information for him. I talked with Mr.—the

counsel to the President at that point afterwards.

Mr. WAXMAN. Did anyone at the White House tell you to hide the

problem?

Mr. LINDSAY. Absolutely not.

Mr. WAXMAN. Did anyone at the White House tell you to destroy

any e-mails?

Mr. LINDSAY. Absolutely not.

Mr. WAXMAN. My understanding is that you were requested to

perform a test of the system to figure out the extent of the e-mail

problem; is that right?

Mr. LINDSAY. I didn’t understand it—I didn’t take it as a test at

that particular time, but I did receive a set of names that were provided to me by folks in the White House counsel’s office, which I

conveyed to our technical folks, and they did perform an analysis

of those names, and the results were then provided back to the

counsel’s office for comparison with other documents that have

been produced.

Mr. WAXMAN. And tell me more about this test. How was it conducted? And what were the results of that test search? And did you

think the problem had been fixed as a result?

Mr. LINDSAY. I couldn’t tell you, based on that information. I

made it a habit as to not to look and review documentary productions from e-mail searches, myself. What I did—because we were

the custodian of the records, it was not my job to review those

records for responsiveness, or whatever. We received the search

language. In this particular case, it was provided directly to me. I

conveyed that to my technical staff, and then they performed the

search of the information.

It was my belief at the time that they conducted this search of

the data base or the information, a manual search, as I remember

it, outside of the ARMS records management system.

Subsequent to that, I’ve learned that that may not have taken

place, but my understanding at that time was that that was the

information that was being provided back to me, and I conveyed

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that to the counsel’s office, and then they and only they could actually perform the review and the comparison with what other documents had been produced and what came up with that particular

search to check and see if there was a problem.

My recollection is that, after that was done, some time went by

and the word that I got back was that, ‘‘Hey, these are duplicates.

It probably isn’t that big of a problem because this information has

already been produced.’’

Mr. WAXMAN. It was produced by a separate search of individual

e-mail systems?

Mr. LINDSAY. That’s what I would surmise.

Mr. BURTON. The gentleman’s time has expired.

Was the President or the Vice President told about the problem,

to your knowledge?

Mr. LINDSAY. I would have no knowledge of that.

Mr. BURTON. Ms. Apuzzo is, I guess, one of your superiors?

Mr. LINDSAY. That is correct.

Mr. BURTON. And you don’t recall the phone conversation that

you had with Mrs. Callahan and the people that were in her office?

You say you don’t recall that phone call?

Mr. LINDSAY. No. I mean, it was over—almost 2 years ago.

Mr. BURTON. I know. You don’t recall the phone call. And yet,

just a matter of a couple days later, you assisted in writing a memo

to Mr. Podesta from Ms. Apuzzo about—and it’s a pretty complex

memo, going into some detail about the problem. But you don’t remember the phone call?

Mr. LINDSAY. As I said, the conversation on the phone call took

place over 2 years—about 2 years ago, and it was a very short duration. At that time——

Mr. BURTON. But you remember the memo, though?

Mr. LINDSAY. Yes, because I’ve seen the memo. But I’ll be perfectly honest with you: when this matter was brought to my attention for the first time, I didn’t remember the memo.

Mr. BURTON. OK. Now, I want to make sure I’ve got all this

straight.

You don’t remember the phone call, and yet five people from Northrop Grumman all sat at that table just a while ago and they all

remember the phone call.

Mr. LINDSAY. Mr. Chairman——

Mr. BURTON. Let me just finish.

Mr. LINDSAY. Yes.

Mr. BURTON. They all remember the phone call. Three of them

felt that they were threatened with possible jail. All five of them

said they felt some kind of threat or intimidation from Ms.

Crabtree—then Ms. Crabtree, now Mrs. Callahan—but she said

that never happened and doesn’t remember anything like that.

That just didn’t happen.

I just can’t believe that five people would all come here and lie

because I can’t figure out why they would do that. Can you tell me

why you think they’d lie to us?

Mr. LINDSAY. Mr. Chairman, I can only speak under oath to

those matters for which I have knowledge.

Mr. BURTON. I understand. Yes.

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Mr. LINDSAY. I cannot speak to what was in the content of other

people’s intent or what their thoughts were at any particular time.

Mr. BURTON. Sure. How about you, Mrs.——

Mr. LINDSAY. All I do know is what my own conduct was and

what I did.

Mr. BURTON. And you don’t recall the phone call?

Mr. LINDSAY. No, I don’t.

Mr. BURTON. Mrs. Callahan, can you—you worked with these

people. In fact, you said the one lady came to your wedding, and

you said that—and she indicated that you were fairly close. In fact,

I think the supervisor there said that one of the problems he had

was that she confided in you too much. So evidently she was fairly

close to you at some time. Can you figure out why she and all these

other four people would lie about that meeting?

Mrs. CALLAHAN. Mr. Chairman, after listening to the discussions

earlier this morning, first of all, I don’t recall all five of them

saying——

Mr. BURTON. Three of them did.

Mrs. CALLAHAN [continuing]. That there was a threat.

Mr. BURTON. Three said that they recall either being threatened

or referred to being threatened with jail, because the one lady—and

I don’t recall her name right now, but we can look it up—she said

that when she was asked by her supervisor to tell him what was

going on, she says, ‘‘I can’t tell you.’’ And he says, ‘‘Well, if you

don’t, you’re insubordinate.’’ And she said, ‘‘Well, I’d rather be insubordinate than go to jail.’’ So she felt like there was some threat

there. Ms. Lambuth said the same thing. And the—what was the

gentleman’s name—Mr. Haas said the same thing. So three out of

the five alluded to a threat of jail. The other two said that they felt

like they had better keep their mouths shut because it was pretty

clearly stated to them that there might be some—their jobs might

be in jeopardy.

If you didn’t hear that, then you weren’t listening to the same

five people I was listening to.

So the thing I can’t understand is they all don’t recall the jail

threat. Three of them pretty much do. Two remember being—feeling intimidated and threatened. But you’re saying that none of that

happened?

Mrs. CALLAHAN. Mr. Chairman, what I am saying is what I

heard this morning. I heard two people say that they had heard the

threat and make that allegation. I heard one person start by saying

no, and then evolved as the day went on into saying yes. And the

other two had no feeling of there being a threat of jail. I also heard

Mr. Haas and Ms. Lambuth contradict each other as far as what

their roles and responsibilities were.

Mr. BURTON. That had nothing to do with that phone conversation in that meeting.

What we will do, for your edification, is we will get a transcript

of the testimony that took place and I will be happy to send it to

you so you’ll recall very vividly what they did say.

I’m just disappointed that five people—either five people lied or

you are. It’s one of the two. I just don’t understand this.

Mr. Souder.

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Mr. SOUDER. I thank the chairman. Unfortunately, many people

will—are probably going to watch this on C–SPAN and will also be

able to see.

What I’m confused about here also is that I want to reconcile

something. Mrs. Callahan, what did you—did you tell the contract

employees present that they couldn’t talk to their supervisors?

Mrs. CALLAHAN. I instructed the contract employees at the meeting that this was an extremely sensitive situation. All of us were

aware of the activities going on in the press at the time; and the

fact that there had already been discussions of this brought to my

attention, that it was going on in the hallways, was not acceptable;

and that our current procedures and our practices at that time

were to deal with the issue in a purely technical sense, since it was

a technical problem that needed to be resolved, and that’s where

we needed to put our energy and time and focus and deal with the

issue.

Mr. SOUDER. So the answer is yes, you told them not to talk to

their superiors?

Mrs. CALLAHAN. I told them if they had any questions they were

to—if anyone approached—— Mr. SOUDER. The answer is yes; is that not correct? Did you tell

them they shouldn’t talk to their superiors?

Mrs. CALLAHAN. Well, their superior was in the room, so that—— Mr. SOUDER. You wanted it limited to just those in the room?

Mrs. CALLAHAN. Those in the room. Yes, sir.

Mr. SOUDER. Was Mr. Hawkins in the room at the time?

Mrs. CALLAHAN. No, sir.

Mr. SOUDER. Is not he their superior?

Mr. HAWKINS. He was Betty Lambuth’s superior.

Mr. SOUDER. So you told Betty not to talk to her superior?

Mrs. CALLAHAN. I don’t recall that, sir.

Mr. SOUDER. You just said you did.

Mrs. CALLAHAN. I told Betty—— Mr. SOUDER. You said you wanted it limited to that room only.

Mrs. CALLAHAN. To that room only, but I did not single out Mr.

Hawkins.

Mr. SOUDER. I hope people can realize that one of our frustrations here is that you are making us ask the questions so precisely,

rather than the intent of the question. The intent of the question

is: could people have walked out of that meeting assuming they

weren’t supposed to talk to their superiors? And the obvious answer is yes, because Mr. Hawkins wasn’t in the room. Then you

say, well, I didn’t ask you precisely. Whether I said, ‘‘Did Betty

Lambuth get asked,’’ my intention was, would they have gone out

of that room thinking that you told them not to talk to anybody

outside of that room, including their superiors who weren’t present

in the room? And if some of them had their superiors present, that

certainly answers my basic question.

Let me ask Mr. Lindsay the same question. Did you tell them— and I know you at this point don’t recall a lot of the phone conversation, but, from you, did you ever imply to any of them that

they weren’t supposed to talk to their superiors?

Mr. LINDSAY. Did I ever?

Mr. SOUDER. Yes.

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Mr. LINDSAY. Is that the question?

Mr. SOUDER. Yes. Not at a particular phone call.

Mr. LINDSAY. No.

Mr. SOUDER. In other words, would they have gotten the feeling

from you at any point that they weren’t supposed to talk to their

superiors or anybody beyond their group?

Mr. LINDSAY. My recollection of any conversations that I had

with people at this time was that my No. 1 objective was to make

sure that this problem was resolved, that I got the information so

that I could report that information to my superiors so that we understood what was going on.

I had no particular interest in having this matter—I think Laura’s characterization is correct. This was another problem. The

problem was to be solved. That’s what I wanted to have it done.

The technical niceties in terms of how they went about doing it

and whether or not Hawkins was involved with it or whether or

not 20 other people were involved with it didn’t matter to me.

As a matter of fact, under the contract I would have been perfectly happy for the contractor to bring in an expert team of people

from the outside who were familiar with the system to solve the

problem if they were going to perform that under the contract. I

would have been ecstatic to have that happen.

Mr. SOUDER. Let me ask you a question. Just a minute ago, in

answer to Mr. Waxman’s question, you said you absolutely wanted

to limit it to that group.

Mr. LINDSAY. What’s that?

Mr. SOUDER. You just said a few minutes ago you absolutely

wanted to limit it to that group. When Mr. Waxman asked you a

question, you said you didn’t want the information going beyond— I wrote it down. ‘‘I absolutely wanted to limit it to that group.’’ Mr. LINDSAY. I wanted the information to be limited, but the definition of ‘‘group’’ is the group of people necessary to solve the problem. That means if Northrop Grumman chose to bring in 20 people

who were going to actually solve the problem, that was fine with

me.

Mr. SOUDER. So you—— Mr. LINDSAY. I would want that group of 20 people to not tell

other staff what was going on with that problem.

Mr. SOUDER. So Mrs. Callahan was incorrect to communicate to

them that they shouldn’t tell anybody outside that room?

Mr. LINDSAY. I don’t know what she said.

Mr. SOUDER. But if she told them that, she was incorrect?

Mr. LINDSAY. To not to tell anybody outside that room?

Mr. SOUDER. Yes. That’s what she said just a minute ago.

Mr. LINDSAY. I don’t know what she understood from me at that

particular time. That would be inconsistent with my philosophy,

and I think I corrected that at a later date when I talked to Mr.

Hawkins and made the point very clear to him that I was perfectly

willing to entertain or to have people talk about or bring this matter into the question. I asked him to ask me any questions that he

wanted to ask me about it. It just wasn’t—that portion of it wasn’t

important. The concern was the conveyance of the information to

individuals, as Mrs. Callahan stated in her testimony, to people

who are extraneous to resolving the particular matter.

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Mr. SOUDER. OK. Back to Mrs. Callahan, then, since you told me

that, for example, you told the group that it was supposed to stay

limited to that group, and to Ms. Lambuth that she wasn’t supposed to talk to Mr. Hawkins. Didn’t you consider, because certainly, if it was supposed to be just to that room, that this could

present a big problem to anybody in that room in their relationship

to their superiors outside that room, or if, for example, as happened with one of the witnesses, they were called in by Mr. Hawkins and taken over the coals, that you could be putting them in

danger of losing their jobs?

Mrs. CALLAHAN. Well, Mr. Souder, first of all, I communicated to

the group the standard practice, and at that point in time I had

known that Mr. Lindsay was going to talk with Mr. Hawkins, and

that’s where the briefing to Mr. Hawkins occurred.

Also, too, you understand—and I think Mr. Hawkins addressed

it earlier—that there had been numerous conflicts between Ms.

Lambuth and Mr. Hawkins on a regular and routine basis.

Mr. SOUDER. Because of her closeness to you.

Mrs. CALLAHAN. Excuse me?

Mr. SOUDER. He said because of her closeness to you he had had

conflicts with her.

Mr. BURTON. The gentleman’s time has expired. We’ll get back

to you.

Mr. Waxman.

Mr. WAXMAN. Thank you.

To go back to where I left off, Mr. Lindsay, you found out you

had a problem—— Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. Yet it might have been fixed when you heard that

they were going to do some test on the individual e-mails of the

computers, as opposed to this—what do you call it?

Mr. LINDSAY. My analysis at the time was that——

Mr. WAXMAN. ARMS.

Mr. LINDSAY [continuing]. There may not have been a legal problem in terms of whether or not documents were produced or whether or not that was completed, but I still had a problem, and that

was I still had a technical staff that reported to me that there was

a glitch. Even if that test came back in a positive way, I may not

have had a production problem, but I had a technical problem with

my e-mail system and my ARMS system and how they worked together. If that—that was the issue that I needed to resolve.

Mr. WAXMAN. So at first some people thought maybe the problem

was corrected, but you came to the realization that the ARMS issue

wasn’t corrected?

Mr. LINDSAY. Well, my technical staff didn’t report to me that it

was corrected until November 1998.

Mr. WAXMAN. When did you learn there was a continuing problem with the production of the e-mail?

Mr. LINDSAY. With the production, probably—I mean, I don’t

know of a problem with the production of e-mails to this day, other

than the information that I have received from this particular committee and the concerns that are expressed by the chairman and

the members of this committee. I’m not aware—because I’m not

aware of and I haven’t seen a technical report from my staff which

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has defined what e-mails were not included in the Armstrong—the

ARMS collection system. Until I have that information, I could not

make a conclusion as to whether or not information was provided

or not provided.

Mr. WAXMAN. One of the questions that many of us on this committee have is why it took so long for the White House to notify

the committee that some e-mails may not have been produced.

What is your explanation for this delay?

Mr. LINDSAY. I couldn’t provide an explanation for that situation

other than the fact that I knew that this was a problem that was

very complicated. It is one that, frankly, I didn’t completely understand at the time. And it is one where, frankly, Northrop Grumman had sent me a proposal for $600,000 to assess just what the

nature of the problem was. So it was fairly complex.

The transmission or the responsibility for transmitting that information to the committee would be for the counsel’s office or

other individuals to do, and not for my office and the Office of Administration to do.

Mr. WAXMAN. Now, Mr. Hawkins testified that you and he had

what sounded like a heated exchange. What was that all about?

Mr. LINDSAY. Well, I worked very closely with Chairman Kolbe

on the Treasury, Postal Appropriations Committee. They had made

comments to me about the requirements to making sure that appropriated money we got dollar for value. One of the things that

we had done in our attempt to retrieve our money from the fenced

funding is I was very, very open with them in exposing our weaknesses and explaining to them the fact that we had—one of the

major problems that we had was administering and making sure

we got dollar for value from contractors. And the Appropriations

Committee essentially said to me, you know, ‘‘You need to make

sure that you get that kind of value out of the agreements.’’

So, frankly, from my perspective, when I had a valid contract

with a contractor that I had contracted specifically to manage our

e-mail system, and I had a problem with that e-mail system, I believed that the work to correct any problem associated with that

system was within the scope of the contract and their responsibility

to correct without additional remuneration.

Mr. WAXMAN. And what was his position?

Mr. LINDSAY. His position was that they required additional resources.

Mr. WAXMAN. So this is a different picture than what we were

presented earlier.

Mr. LINDSAY. Absolutely.

Mr. WAXMAN. Mr. Hawkins acted like you were telling him to

keep it quiet, but what he was really saying to you is, ‘‘If you want

this system fixed, you have to pay me more money to fix it.’’

Mr. LINDSAY. Yes.

Mr. WAXMAN. Because the problem that you now found yourself

in was outside the scope of the contract.

Mr. LINDSAY. Absolutely. And I believed it was well within the

scope of the contract. And I——

Mr. WAXMAN. So you were telling him to fix it so you can be sure

to have all those e-mails in this ARMS setup so that those e-mails

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would be available to any committee or anybody who had the right

to get those e-mails?

Mr. LINDSAY. Absolutely.

Mr. WAXMAN. And he was saying to you, ‘‘Well, that’s your problem, buddy. We’ve done what we can do, but it’s not within the

scope of the contract for us to go back and fix it?’’ Mr. LINDSAY. Absolutely. And if he had communicated his frustration with me with his superior, the president of the company,

to say that they believe that, I would have no objection to that, because I was very much dead set and believed and had been advised

by my counsel’s office in the Office of Administration that this work

was within the scope of the contract and taxpayers should not have

to pay more money to have this problem corrected.

Mr. WAXMAN. I don’t know enough about the fight between Mr.

Hawkins and Ms. Lambuth, but it sounds like he was angry at her

for not telling him that there was going to be more work to do, and

he wanted her to tell him there might be more work to do so that

he could say that that wasn’t part of the contract and they would

have to renegotiate the contract. Do you know anything about that?

Mr. LINDSAY. I really don’t. I do remember that there were— there was friction between the two, but I don’t have any other

recollection about what specifically was the basis between the differences between those two individuals.

Mr. WAXMAN. Mrs. Callahan, you don’t look very menacing to

me. If I said to you, ‘‘Can I tell my wife about this problem on the

e-mails,’’ say back to me, as fiercely as you possibly can, ‘‘If you do,

you’re going to have a jail cell with your name on it.’’ Mrs. CALLAHAN. I can’t even say that, sir. I don’t behave that

way. I guess I—— Mr. WAXMAN. Well, even if you said it, I must tell you I don’t

think I’d be too afraid of you, but that’s my own subjective sense

of you as a witness and these other people seemed to in their testimony say they were terrified that they may go to jail.

They also said, not only were they terrified they were going to

go to jail, but they understood you wanted the problem fixed, so

they were trying to work with you to fix it. Was that your understanding of what was happening when the problem was discovered?

Mrs. CALLAHAN. Yes, sir. That’s my understanding. It was very

imperative to us that we find out what the size and the scope of

the problem was, and it was critical that we figure out what we

needed to do to fix it.

Mr. WAXMAN. Let me just give you an opportunity. Is there anything you want to say, anything you think we need to know about

this hearing and all the things that have been talked about today?

Any points you think that you should bring out to us?

Mrs. CALLAHAN. There are a couple things I would like to address. It pertains——

Mr. WAXMAN. Let me extend that to both witnesses.

Mr. LINDSAY. Thank you.

Mrs. CALLAHAN. Thank you.

In regards to Mr. Souder’s concerns, there was a tremendous

amount of friction between Ms. Lambuth and Mr. Hawkins, and it

was—it may have been perceived by Mr. Hawkins as a relationship

with myself and with Ms. Lambuth; however, I believe, if you talk

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with him specifically and look at the record, there was numerous

and different occurrences that prompted their friction.

Ms. Lambuth had confided in me that she was pursuing EEO action against Mr. Hawkins, and this was all happening prior to the

anomaly being discovered.

In addition to that, as far as being in—I think you might have

referred to it as being in ‘‘somebody’s pocket,’’ I am, quite frankly,

a career civil servant, and I am not in anybody’s pocket, never have

been, and I never plan to be, nor will I ever put myself in that position.

And as far as Ms. Lambuth attending my wedding, I was very

happy to see her, and there had never been any acknowledgement

of her being threatened or fearful of me prior to when I read it in

the Washington Times.

And also, just for fairness, too, Mr. Hawkins attended my wedding shower on September 3rd, as well.

Mr. LINDSAY. The only thing that—— Mr. WAXMAN. Is there anything you want to add?

Mr. LINDSAY. Most certainly.

The only thing that I would like to add is that I worked very,

very hard as general counsel to try and create the institutions

within the Executive Office of the President and the Office of Administration so you’d have safety valves for people if they did feel

uncomfortable, through our EEO office. One of the things that we

did is we elevated the EEO office from within human resources to

its own division so that it would have its own ability to be able to

stand on its own, so individuals would be able to go and communicate any kind of concerns that they had with them quite freely.

The EOP security office was also there, where individuals could

have raised issues or concerns about any kind of threats or intimidations or fear.

Both of those offices are run by career staff who, frankly, spent

more time working in other administrations than working in this

particular administration.

I did everything I could to create that kind of environment where

they could feel free to do it. There was no information, absolutely

nothing that came to me, my boss, or anyone else who was around

me who reported to me that Mrs. Callahan’s conduct was inappropriate or that I had done something that was inappropriate, because the first thing that I would have done at that particular

time, if it would pertain to me, is I would have handed it over to

the EOP security office and asked them to do an investigation as

to what was going on.

And the reason why I would have done that so readily is not only

do I believe, as a matter of principle, it’s the correct thing to do,

but I didn’t fear what was happening because I knew that I didn’t

say or do anything wrong in that respect.

That time period is one where there were lots of difficulties in

addressing the Y2K issue and working out our relationship, the

bad relationship that we had with Congress. I believe that that was

completed within the spirit of what I truly believe, in terms of the

respect that I have for this institution and for the institution in

which I worked over there, and I was very proud of the fact. And

I think if you were to go and talk to folks—the Republicans on that

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committee, I think that they would say—and if you look at the

transcript of my testimony, that they believe that I was very forthright and direct with them.

And so one of the things that pains me the most in this process

is the fact that my reputation, which I worked very hard for, is

being sullied by these kinds of charges. I can’t provide you with an

explanation for what would motivate people to say those kinds of

things about me, but all I can tell you is what I do know, and that

they are, indeed, false.

Mr. BURTON. The gentleman’s time has expired.

Mr. SOUDER. Mr. Chairman, point of personal privilege.

Mr. BURTON. The gentleman will state his point of personal privilege.

Mr. SOUDER. Mrs. Callahan made a reference to something I

said, and I wanted to make sure the record was clear. I never accused her, nor did anybody else, of being in anyone’s pocket. The

charge was that someone else was in your pocket. I keep forgetting

the witness’ names. I’m sorry. And that if she was, in fact, confiding in you that she was going to possibly sue her superior, I think

that kind of proves, to some degree to him today, why he thought

that.

But nobody was accusing you of being in anybody’s pocket in that

sense, and if that was misunderstood, I apologize.

Mrs. CALLAHAN. Thank you. I appreciate that.

Mr. BURTON. Mr. Barr, would the gentleman yield to me briefly?

Mr. BARR. Briefly. Certainly.

Mr. BURTON. Thank you.

I have just a couple of questions.

Mr. Hawkins said that he went to a meeting and they were talking about this issue, and—shut the clock off until this is—would

you like to comment, Mr. Waxman?

Mr. WAXMAN. Mr. Chairman, just so we have a clarification and

you should start again, I thought we were doing three 10-minute

rounds and then 5-minute rounds each. Are we doing something

else? Are we giving everybody 10 minutes? If so, we ought to have

what the rules are, but this is what we were told on our side was

the agreement.

Mr. BURTON. We’ll give you 10 minutes, Mr. Waxman.

Mr. WAXMAN. What is your understanding of how you are going

to conduct the hearing?

Mr. BURTON. The understanding was that we were going to have

10-minute rounds.

Mr. WAXMAN. Every side? Each side or each Member?

Mr. BURTON. That was my understanding.

Mr. WAXMAN. And that is unlimited rounds?

Mr. BURTON. I don’t think we have too many more rounds to go.

Mr. WAXMAN. Well, if that’s what you want to do, go ahead and

do it, but that wasn’t what we were told.

Mr. BURTON. OK.

Mr. WAXMAN. But we also were told that Beth Nolan would testify, and then that was yanked from the agenda without our approval or even being advised of it.

Mr. BURTON. I thank the gentleman for yielding.

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Mr. Waxman, I explained the issue of Beth Nolan. You can continue to beat on that horse if you want to, but we have explained

it.

Now, Mr. Hawkins said at a meeting that you told him, Mrs.

Callahan, that everything was fine before you stepped in. Did you

say that?

Mrs. CALLAHAN. No, sir.

Mr. BURTON. So—— Mrs. CALLAHAN. I worked with Betty Lambuth on the situation.

Mr. BURTON. But you said everything was fine. He said that you

said, ‘‘Everything was fine until you stepped in,’’ referring to—you

didn’t say that?

Mrs. CALLAHAN. No, sir. I don’t understand the—— Mr. BURTON. So not only are the five people lying that testified

earlier about what was said at that meeting, but also when Mr.

Hawkins talked to you separately at a meeting, you didn’t say that,

so he’s lying, as well?

Mrs. CALLAHAN. I did not have a meeting separate with Mr.

Hawkins.

Mr. BURTON. Did you ever meet with Mr. Hawkins?

Mrs. CALLAHAN. I worked with Betty Lambuth.

Mr. BURTON. So you never met with Mr. Hawkins?

Mrs. CALLAHAN. Mr. Hawkins worked with Mark Lindsay and

Paulette Cichon.

Mr. BURTON. Did you ever meet with Mr. Hawkins?

Mrs. CALLAHAN. Not on this issue.

Mr. BURTON. Did you ever meet with Mr. Hawkins?

Mrs. CALLAHAN. There may have been a few occasions during my

year there.

Mr. BURTON. Did you ever say to him, ‘‘Everything was fine until

you stepped in?’’ Mrs. CALLAHAN. No, sir. I don’t recall that.

Mr. BURTON. So Mr. Hawkins is lying and the other five people

are lying and you’re telling the truth? All five of them and Mr.

Hawkins are now lying?

Mrs. CALLAHAN. Yes.

Mr. BURTON. Now, let me ask you a question, Mr. Lindsay.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. You said everybody wanted the problem fixed. That

was 2 years ago.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. Two years ago.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. We had a subpoena out in 1997, 1998, and 1999,

all pertaining to various investigations that these e-mails would be

relevant to or could be relevant to. You said you want—everyone

wanted the problem fixed, and here we are today still at ground

zero. Nothing is being done. Why is that?

Mr. LINDSAY. First off, I would beg to differ, Mr. Chairman, with

the characterization that nothing is being done. A lot was done.

One of the first steps in the reconstruction process was to fix the

glitch in the first place. And I will tell you this: I was not happy

or glad that it took from June until November to fix the glitch. I

would have liked for that glitch to have been fixed a lot sooner.

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Mr. BURTON. Yes.

Mr. LINDSAY. The reason why that date in November is very significant is that in November, that very same month, we received

the money that we needed to engage in our activities on Y2K.

Mr. BURTON. We are now at March, middle of March, late March

of the year 2000. The documents that we have requested or demanded in our subpoenas, as well as the independent counsel and

the Justice Department, have not been given to us, so the problem

has not been solved. We don’t have those documents.

Mr. LINDSAY. I think we’re talking about two different problems.

Mr. BURTON. I don’t think so.

Mr. LINDSAY. The legal problem of producing the documents that

you are looking for, I have no knowledge of what information was

provided to you, so I could not testify or provide information to you

as to whether the information that is in question was provided or

not provided.

Mr. BURTON. You said that everyone wanted the problem fixed,

and yet Mr. Barry, in his e-mails that we quoted from today, said

he was frustrated. He testified today he was frustrated because he

had contacted, I guess, you and others saying, ‘‘Hey, this thing has

got to be fixed. It’s a mess.’’

Mr. LINDSAY. I don’t have any recollection of Mr. Barry communicating with me about that, but I shared and share his frustration

with the fact that it wasn’t fixed at a more expedited fashion. I

would—I had every desire that that would happen. I had every desire and would have welcomed the contractor bringing in whatever

the best and the brightest was in their company to address this

problem. But we handed the resolution of this issue to our contractor.

Mr. BURTON. You said the best and the brightest, whoever they

were, you would be happy to have them brought in, and yet Ms.

Crabtree, now Mrs. Callahan, told them not to tell anybody, especially their superiors, about the problem.

Mr. LINDSAY. It is my understanding of Mrs. Callahan’s testimony is that she believed that I would communicate with their superiors, and I did.

Mr. BURTON. And you did?

Mr. LINDSAY. Absolutely.

Mr. BURTON. And that’s why she said, ‘‘Don’t tell anybody about

this. I don’t want you telling anybody about this, especially your

superiors?’’

Mr. LINDSAY. Like I said, her understanding, as I recollect her

testimony, was that I would communicate with their superiors,

which I did. I not only had communications with those particular

individuals, but I had communications and received a letter—a

September 16th letter, I believe—which made reference to this particular matter, which showed that they had knowledge and information about the whole thing, essentially raising the same issue

again about payment.

Mr. BURTON. The bottom line is we subpoenaed documents

three—over 3 years ago. Relevant documents are probably and possibly in those—possibly in those e-mails. You’ve known about this,

and Mrs. Callahan has known about this now for almost 2 years,

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and nothing has been done or delivered to the Congress of the

United States.

And when the people who are charged with the responsibility of

dealing with this problem testified, they testified that they were

threatened about keeping their mouths shut, and yet you folks

don’t remember anything about it, you don’t remember the phone

call, she says the five people are lying, plus Mr. Hawkins is lying.

I just tell you—— Mr. LINDSAY. Mr. Chairman—— Mr. BURTON [continuing]. It just boggles my mind that you can’t

remember a phone call, she says the other six people are lying, and

this was two separate incidents. You know, it just—it stretches credulity.

Mr. LINDSAY. Mr. Chairman, my recollection is extremely vivid

on the fact that I wanted to have the problem resolved. My recollection is very vivid with the fact that I did convey this information

to the appropriate individual.

Mr. BURTON. Yes, you did. You did.

Mr. LINDSAY. My information—— Mr. BURTON. You did. You don’t remember the phone call, but

within just 2 days after that you sent a memo or participated in

writing a memo to Mr. Podesta giving him all the details. I can’t— that’s why it just boggles my mind you can’t remember that phone

call.

Mr. LINDSAY. Well, I remember conversations, and I certainly remember, from the time that I worked on the Hill, when Congressman Stokes had a conversation with me, he was my superior, I remembered it. There were plenty of other people who may have

come through the office that I may not have had a specific recollection of, and if you were to ask me of the many hundreds or thousands of conversations that I had with individuals during that particular time period, I would not be able to necessarily provide you

with the details of those conversations.

There were numerous and there are plenty that were very, very

important.

Mr. BURTON. We understand.

Mr. Barr.

Mr. BARR. Thank you.

Both of you went on at some length telling us about awards and

background and so forth, and I might have missed this. Do either

of you have a law degree or a legal background?

Mr. LINDSAY. I do.

Mr. BARR. OK. Mrs. Callahan.

Mrs. CALLAHAN. I do not.

Mr. BARR. Are these lawyers with you? They haven’t been identified, and they have been rather quiet. Are they lawyers with you?

Mr. LINDSAY. Yes.

Mrs. CALLAHAN. Yes, sir.

Mr. BARR. Who are they and who has retained them to be here

today?

Mr. Lindsay.

Mr. LINDSAY. Peter Kadzik. And I retained him to be with me

today.

Mr. BARR. Personally?

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Mr. LINDSAY. Yes, sir.

Mr. BARR. And, Mrs. Callahan, who is this gentleman?

Mrs. CALLAHAN. This is Mr. Ralph Lotkin, and I retained him

personally.

Mr. BARR. OK. Thank you.

You may, Mr. Lindsay, be familiar with sort of a common

misperception—you may not, Mrs. Callahan, but, for example, one

of the statutes in Title 18, which is the U.S. Criminal Code on obstruction of justice, is entitled, ‘‘Tampering with a Witness, Victim,

or an Informant,’’ and there is a common misperception that there

has to be a specific legal proceeding pending so that when a person

who might be charged with obstruction tells a person not to tell

somebody something, or intimidates them in some way not to disclose information or a document, or to alter or destroy or mutilate

or conceal any documents, that there has to be, in order for obstruction to occur, a specific legal proceeding within the context of

which that tampering takes place.

That’s not the case. So if anybody has advised you that there has

been no obstruction here simply because there may not have been

a specific request pending for these particular documents at the

time, that’s not true.

And we do have evidence that you all indicated to persons not

to share information, not to disclose information, to withhold information. Now we’re arguing, as your administration is very, very

adept at parsing words. Was a person in the room? Did a specific

representation or admonition be directed to a particular person at

a particular time or to a group of people?

But the fact of the matter is that there is evidence that both of

you told individuals, some of whom were here earlier today, to say

nothing to anybody else without your explicit authorization; that

you were prohibited from disclosing information to other people;

that you were to write down as little as possible relating to this

matter, not to work on networked computers or to send further emails.

And one question that came to my mind, in reading the background of this case and listening to the testimony today, the independent counsel is certainly not an employee, an employer, or a supervisor of these people, neither was or is Mr. Burton, the chairman of this committee, neither is Mr. Hyde, who chaired the impeachment proceedings. All of those things were ongoing. There

were consideration of impeachment proceedings; there was this

committee conducting a series of investigations; the Office of Independent Counsel, Judge Starr, was conducting a well-known investigation of these very matters about which brings us here today.

I’m not——

Mr. BURTON. The time of the gentleman from Indiana that was

yielded to you has expired, and I’ll recognize you now for 10 minutes.

Mr. BARR. Thank you, Mr. Chairman.

The fact of the matter is that it does appear that steps were

taken to limit very severely information surrounding a very serious

glitch in the White House computer system that related specifically

the matters well known to be under investigation by at least three

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different bodies—namely, the Office of Independent Counsel, this

committee, and the Judiciary Committee.

And, notwithstanding the fact that any one of those particular

proceedings might not have been pending at the time, although the

work of the independent counsel certainly was pending at that

time, that you all took steps, according to testimony—which you

dispute. I understand that you are disputing the testimony of other

witnesses just as much under oath as you are today. And this is

disturbing to us.

Frankly, to say that all of this is simply to be sloughed off as a— I think that one of you all’s quote was a ‘‘major infrastructure problem,’’ or because there were just too many hearings up here that

occupied your time and it might have been a little confusing to deal

with this or to remember something relating to this, or—and this

is the granddaddy of them—Mr. Lindsay apparently saying that

Hawkins was trying to extort money from you or something?

Mr. LINDSAY. It was far from extortion. He was exercising his

rights, which were perfectly legitimate, and I did not have an objection to him making the claim that this was outside the scope of the

contract. That was 100 percent of his rights to exercise. No argument with him as to that.

Mr. BARR. So you all agree famously.

Mr. LINDSAY. We didn’t agree on the conclusion. He had a perfect

and 100 percent right to make the assertion that he did and to

communicate and to get whatever support from his counsel at Northrop Grumman or whatever superior he wanted to make that particular assertion, and I do not argue with him on that point one

iota.

Mr. BARR. OK. Let me go back to the earlier testimony—and I

know we’ve gone over this, but it bears going over again.

Both of you instructed the employees that we’ve heard from

today to say nothing about this matter without your explicit authorization; is that correct?

Mr. LINDSAY. That’s not correct.

Mr. BARR. You dispute that.

Mr. LINDSAY. I gave him permission—— Mr. BARR. Do you dispute that, Mrs. Callahan?

Mr. LINDSAY [continuing]. To—— Mr. BARR. No, I’m just—you dispute that?

Mr. LINDSAY. Yes.

Mr. BARR. OK. The others are lying and you’re telling the truth

is your testimony today?

Mr. LINDSAY. I can only testify about information which I know

about. I cannot testify about what the state of mind or what their

intentions are in saying whatever they are saying.

Mr. BARR. You do have a legal background.

Mr. LINDSAY. I know the truthfulness of what I say.

Mr. BARR. Very clever.

Mr. LINDSAY. Thank you.

Mr. BARR. Mrs. Callahan, did you instruct these individuals not

to say anything to anybody without your explicit authorization?

Mrs. CALLAHAN. I instructed the individuals to follow the current

practice that was in place at the time, which was to focus on the

issue at hand and get to the——

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Mr. BARR. Did you instruct these individuals not to say anything

without your explicit authorization?

Mrs. CALLAHAN. I instructed them to refer questions—— Mr. BARR. Yes or no?

Mrs. CALLAHAN [continuing]. To me.

Mr. BARR. You can answer no. I want a yes or a no. That’s all.

Did you instruct these individuals to say nothing about this matter

without your explicit authorization?

Mrs. CALLAHAN. No, I did not.

Mr. BARR. OK. Very nice.

Did you, both of you or either of you, specifically prohibit them

from disclosing these matters or any information relating thereto

to coworkers or spouses?

Mrs. Callahan, yes or no? Did you so instruct them?

Mrs. CALLAHAN. No, sir. I just instructed them on the procedures.

Mr. BARR. Did you, Mr. Lindsay.

Mr. LINDSAY. No, I did not, sir.

Mr. BARR. OK. Did either of you instruct these individuals or any

of these individuals, collectively or individually, to not write any information down or as little information down on a record about

these matters?

Did you instruct anybody along those lines, Mrs. Callahan?

Mrs. CALLAHAN. No, sir.

Mr. BARR. OK. And Mr. Lindsay.

Mr. LINDSAY. No.

Mr. BARR. OK. Did either of you indicate to anybody not to work

on any networked computers or send any further e-mails relating

to this project?

Mr. LINDSAY. No, sir.

Mr. BARR. Mrs. Callahan.

Mrs. CALLAHAN. No, sir.

Mr. BARR. OK. Neither of you, though, I presume, instructed

these individuals to be as forthcoming and truthful as possible if

anybody asked them about any of these questions? Or are you

going to go so far as to say you encouraged them to talk about

these things?

Mr. LINDSAY. Your statement is ‘‘anybody.’’ Mr. BARR. Any of these individuals, not anybody. I’m talking

about any of these individuals that we’re talking about here today,

Mr. Lindsay.

Mr. LINDSAY. What I wanted them—the information that I conveyed to Mr. Hawkins or the Northrop Grumman leadership and

to Laura was that the individuals who needed to have information

about this matter to solve the problem, I had no problems with

them communicating with it.

Mr. BARR. What about if the independent counsel had asked

about it or a congressional committee?

Mr. LINDSAY. I’ve got no objection whatsoever. They were perfectly free, and there was nothing at all that I could do or would

do to stop them from communicating that.

Mr. BARR. If we believe you.

Mr. LINDSAY. Excuse me?

Mr. BARR. If we believe you——

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Mr. LINDSAY. Absolutely.

Mr. BARR [continuing]. That you did not do any of these other

things, which the witnesses have said that you did.

Mr. LINDSAY. The truth is that I would not have had within my

power or stop them or had any means to stop them from communicating with whomever they wanted to communicate about the

work that they had. It was my desire that they communicate this

information to those individuals who were necessary to solve the

problem. It was my hope that they would respect that in the interest of the individuals who could possibly be harmed by sharing of

this information in idle gossip.

Mr. BARR. What idle gossip are we talking about? I didn’t know

we were talking about idle gossip.

Mr. LINDSAY. If someone were to say or to convey that, ‘‘Hey,

your name showed up on this particular list and this is what emails—this is what information is contained in those e-mails.’’ Mr. BARR. I really don’t think that that’s what we’re talking

about here at all. We’re talking about something a little bit more

systematic than idle gossip here. What we’re talking about here is

a serious problem with a computer system that appeared, to technical individuals charged with responsibility for it, was missing

perhaps a great deal of information. I don’t think we’re talking

about idle gossip, and I really don’t think that that’s what these

individuals came away from, that you simply told them not to engage in idle gossip.

Mr. LINDSAY. My testimony was and continues to be that I have

no, had no, will have no objection to them communicating to any

individuals that were necessary to resolve the problem.

Mr. BARR. And that’s—forgive me if I say that’s all fine to talk

about that today, but there is testimony under oath on the record

that is quite contrary to that. And the fact is—I mean, I know you

all keep saying this, that simply because you had no legal authority

to fire somebody or to terminate a contract, therefore, of course,

you couldn’t have even made such a statement. I mean, that’s just

bogus.

Mr. LINDSAY. That’s not the only reason, sir.

Mr. BARR. I didn’t say that that was the only reason. What I’m

saying is both of you all have made those statements, and they’re

absolutely meaningless. People make threats all the time, even

though they may not be in a legal position to carry out those

threats or have the legal authority or power to do it. But, thankfully for Federal prosecutors, that is not required under the obstruction statute. You don’t have to actually have the power to follow through on your threats or the legal authority to do so to be

guilty of obstruction.

Mr. LINDSAY. Sir, the obstruction statutes wouldn’t be the reason

why I wouldn’t do it. The—my moral code would be the reason why

I wouldn’t do it.

Mr. BARR. Just like you can’t get in the minds of the other witnesses, I can’t get into your mind, so, I mean, certainly that’s—I

hear what you’re saying, and they’re very self-serving statements,

and they’re delivered very eloquently and repetitively and I understand that. But my concern, as—perhaps as a former prosecutor

and somebody that, unfortunately, had to spend a great deal of

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time over the last 2 years looking at these obstruction statutes,

that we’re faced with a situation very similar to some of the considerations we looked at in the—fact situations that we looked at in

the Judiciary Committee, where there is pressure brought to bear

on people with information that is or might be relevant to an investigation or an official proceeding.

And it’s not idle gossip, Mr. Lindsay. What we’re talking about

here are matters involving people of interest to the Office of Independent Counsel, to an impeachment proceeding of this House, and

to the oversight responsibilities of this committee. These are very

serious matters.

Mr. LINDSAY. Absolutely, sir.

Mr. BARR. And when we are faced with several witnesses who

state under oath, both in court proceedings and before this body,

that there was pressure, that there were threats made, and we

hear that from several different people, we’re not going to disregard

it just because you all come in here with very long pedigrees that

you tell us about and expect us to think that, just because you have

all these degrees and have all these awards and some people came

to your weddings, that none of this ever happened. We are going

to look at it a little more carefully than that.

Mr. LINDSAY. I would hope. I mean, I believe that there is more

than that that supports what I’m saying and what Mrs. Callahan

is saying. I believe that the record is replete with examples of why

the story that I am saying is supported.

First, these people and people at Northrop Grumman made the

argument to me as to why this should be something that was arguing within the scope of the contract. What was within the scope of

the contract? How would they know it wasn’t within the scope of

the contract if they didn’t know what work was to be performed?

They knew about it. I made—— Mr. BARR. My main concern is——

Mr. LINDSAY [continuing]. No objection.

Mr. BARR. My concern with obstruction of justice does not hinge

on whether something was technically within the scope of the contract or not.

Mr. LINDSAY. I understand that.

Mr. BARR. We’re looking at the underlying data base, the underlying information that, by every appearance, was relevant to ongoing investigations of this Congress and the independent counsel.

Mr. BURTON. The time of the gentleman from Georgia has expired.

Mr. Waxman, the ranking member, would like us to clarify for

the record—and let me just say this—we originally agreed to three

10-minute rounds and then go to 5-minute rule. The minority has

agreed to go to 10-minute rounds instead of the 5-minute rounds.

Just a clarification for the record.

With that, for 10 minutes I recognize the gentleman from California, Mr. Horn.

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

Mrs. Callahan—— Mrs. CALLAHAN. Yes, sir?

Mr. HORN [continuing]. Tell me, you were in the Office of Administration at the White House; is that correct?

184

Mrs. CALLAHAN. That’s correct. The Office of Administration for

the Executive Office of the President.

Mr. HORN. Right. And when did you join that office?

Mrs. CALLAHAN. September 30, 1996.

Mr. HORN. 1996?

Mrs. CALLAHAN. Yes, sir.

Mr. HORN. And what were you paid?

Mrs. CALLAHAN. Excuse me?

Mr. HORN. What was your pay scale?

Mrs. CALLAHAN. I was a GS–14.

Mr. HORN. GS–14?

Mrs. CALLAHAN. Yes, sir.

Mr. HORN. Were you on loan from an agency?

Mrs. CALLAHAN. No, sir. There was a vacancy announcement

that I competed for and was selected for.

Mr. HORN. Did you have people that reported to you in that Office of Administration?

Mrs. CALLAHAN. Initially, sir, when I was the program manager

for the Lotus Notes and Windows/NT environment, the folks that

I worked with were mainly contractors, because that function was

contracted out.

Mr. HORN. Well, are these one or two people you had reporting

to you? I’m trying to get the line. And did you have a staff working

for you?

Mrs. CALLAHAN. It was a mixed staff between Federal and contractors, and the contractors—when I was initially hired on as the

Lotus Notes-Windows/NT program manager, the after 6 p.m. bulk

of the people were all contractors, and I worked through the contract supervisors.

Mr. HORN. Now, these are different contracts than the one we’ve

been talking about today?

Mrs. CALLAHAN. Yes, sir. The contract changed in 1997. In October 1997, the previous contractor left and Northrop Grumman

came on board in a very tenuous and tumultuous contract turnover. It was very stressful.

Mr. HORN. Well, I’m sure it was. I’m amazed sometimes what

happens to them, and it doesn’t matter whether they’re Democrats,

Republicans, Conservatives, Liberals—doesn’t matter. But they

change, and they get into the White House atmosphere. First thing

they do is pick up the phone and call their mother, usually, and

they start writing on White House stationery and all that. And

some who have been on the Hill suddenly, or for the President as

dictator down there, we’re all idiots. So I have been used to that.

And I’m just curious if it could be possible that someone on your

staff used the word ‘‘jail’’ and whatever, if you sent them over there

to scare the people or just make sure there wouldn’t be any leaks.

I can understand that, if you don’t want any leaks, and somebody

might have blurted out ‘‘jail’’ or whatever.

Is that possible? Would anybody on your staff have done that?

Mrs. CALLAHAN. I can’t attest to what staff members would say,

sir. All I can do is tell you what I know and what I said as an individual, and I did not use the term ‘‘jail.’’ Mr. HORN. Well, did you ever send any of your staff over to talk

to the people that have been before us on panel one this year?

185

Mrs. CALLAHAN. No, sir. I worked directly with Betty Lambuth.

Mr. HORN. I can’t hear you. It’s very difficult. Would you put that

closer?

Mrs. CALLAHAN. All right. No, sir. I said I worked with Betty

Lambuth directly. She was the leadership individual on the contractor’s side that was responsible for supporting the day-to-day activities for the contract in order to keep the e-mail systems running.

Mr. HORN. Was there anything, when you talked to her, that

could have led her to say, ‘‘They threatened us with jail if we

spilled the beans on anything here?’’ Mrs. CALLAHAN. Nothing that I would have said to her, sir. No.

Mr. HORN. OK. So you can’t think of any words—it’s not unreasonable, if you have been charged by the Office of Administration,

to say, ‘‘Get that contract moving, and why don’t you go over there

and tell them something,’’ I can see that happening in any White

House, so I’m just curious if that happened and you went over

there because the heat was on you to get that contract moving.

Mrs. CALLAHAN. No, sir. The only heat that was on me was to

find the scope and depth and breath of the problem, and that was

the heat that I reiterated to Betty Lambuth. It’s a fact that we

needed to find out, technically speaking, what was the problem and

how to approach it and what did we need to do to fix it. And then,

after that, I left with my involvement on this particular project.

Mr. HORN. Did anybody else act in your name in the next few

weeks?

Mrs. CALLAHAN. It would be up to my immediate supervisor, who

was Kathy Gallant, to address that issue.

Mr. HORN. And did she ever meet with any of the people in the

contract that Northrop Grumman had?

Mrs. CALLAHAN. I don’t have first-hand knowledge, but what I

heard today was some references to Kathy Gallant, so I would assume there had been some discussion.

Mr. HORN. Well, I just—you obviously have a lot of talent or you

wouldn’t be down there in the Department of Labor, presumably,

in charge of a technology center, but I have seen strange behavior

by Democrats and Republicans when they get in the aura of the

White House, and I just wonder. Sometimes people are going to

blow their stack at people and don’t even think about it. They go

back to the office and say, ‘‘I guess I told them, and maybe they’ll

do it,’’ or not do it, as the case may be.

And that couldn’t have happened to you when you were just sort

of fed up with the contract administration?

Mrs. CALLAHAN. No, sir. I don’t blow my stack. In fact, folks that

know me and have worked with me, they have a joke on the back

side of things in that they are waiting for the day when I do lose

my temper because they’ve never seen that happen yet, and so they

joke about that with me.

Mr. HORN. Well, I think I’d probably agree with them that I

wouldn’t want to be around you when you had one of those explosions, but just wondering how you’re feeling.

So let me move on, Mrs. Callahan.

Did you report the problem that would come up with this computer contract at any time to any other White House employee?

186

Mrs. CALLAHAN. I reported the problem with the e-mail anomaly

to Mr. Lindsay. I didn’t deal with any issues involving the contract.

That wasn’t within the scope of my responsibilities, nor do I have

that expertise.

Mr. HORN. So it was—you initially reported to Mr. Lindsay then?

Mrs. CALLAHAN. Yes, sir.

Mr. HORN. On that.

Mrs. CALLAHAN. My immediate supervisor, Kathleen Gallant,

was not there, and I do not recall why. Paulette Cichon would have

been the next in the chain of command, and she was out of the office at the time when I went to look for someone to notify, and in

which case I saw Mr. Lindsay in his office, and, as the chief of

staff, I notified him that we had another anomaly.

Mr. HORN. How about, did you report it to Ada Posey?

Mrs. CALLAHAN. No, sir.

Mr. HORN. You did not. What was Ms. Posey’s position?

Mrs. CALLAHAN. She was the director of the Office of Administration.

Mr. HORN. And you didn’t report to her?

Mrs. CALLAHAN. No, sir.

Mr. HORN. Well, who in the hierarchy of the Office of Administration did you report to?

Mrs. CALLAHAN. I reported to Kathleen Gallant.

Mr. HORN. And what was her title?

Mrs. CALLAHAN. She was the associate director for information

systems and technology in the Office of Administration.

Mr. HORN. Now, did she report to Ada Posey?

Mrs. CALLAHAN. She reported to Paulette Cichon.

Mr. HORN. And what was her title?

Mrs. CALLAHAN. I’m not sure of her exact title, sir. I wouldn’t

want to misrepresent it.

Mr. HORN. How about Virginia Apuzzo? What was her position?

Mrs. CALLAHAN. Virginia Apuzzo, to my understanding, was the

special assistant to the President for management and administration, and the chain of command, sir, would be, the way I understood it, was Ms. Virginia Apuzzo, Ms. Ada Posey, and then Paulette Cichon, then Kathleen Gallant, and, of course, Mr. Lindsay,

working with Ms. Posey as the chief of staff.

Mr. HORN. Now, could it be possible that when you gave him a

report that, ‘‘Hey, this thing isn’t working,’’ that they sailed over

there and said something to the staff?

Mrs. CALLAHAN. You would have to ask them, sir. I can’t speak

for them.

Mr. HORN. Well, you’re saying you don’t have any knowledge

that anybody above you in the hierarchy went saying, ‘‘Look, I’m

tired of all this mess—’’ and I can believe that. I’ve had a few computer things where they just don’t tell you the truth, and so you

get really wound up. So did any people above you say, ‘‘Look, we’ve

had it with them. Let’s go and tell them a few things?’’

Mrs. CALLAHAN. In my brief interaction with this situation—

again, I was only involved for about the first week or two with the

problem—I don’t recall any of the occurring, but I can’t say what

happened after I was off of the project.

187

Mr. HORN. When was the White House counsel’s office first informed?

Mrs. CALLAHAN. I’m not sure, sir. That wasn’t in my job or my

duty to inform them of anything.

Mr. HORN. And was the informant in the counsel’s office Mr.

Lindsay? Is that the one people reported to, generally, with this

problem?

Mrs. CALLAHAN. I reported the problem to Mr. Lindsay, and then

after that I understand that Kathleen Gallant and Paulette Cichon

took over the management of the project, and I’m not sure what

the reporting chain was that they established.

Mr. HORN. Well, can you tell us about everyone who was told

about the problem? I mean, how many people were in on what was

going on over there?

Mrs. CALLAHAN. The Lotus Notes team, which were all the contractors, Mr. Lindsay, myself, Paulette Cichon, and I understand

Kathy Gallant, too, as well, because when she came back from her

absence she notified me that she was taking over the project, so

someone had briefed her by then.

Mr. HORN. Did you report the problem to Michelle Peterson on

the White House counsel’s staff?

Mrs. CALLAHAN. No, sir. I don’t know Michelle Peterson. I just

know of the name.

Mr. HORN. So you didn’t—you’re saying that Mr. Lindsay was

the only person in the Office of White House Counsel that had

knowledge, at least from you?

Mr. LINDSAY. I wasn’t in the Office of—I was general counsel for

the Office of Administration, not in the Office of White House

Counsel.

Mr. HORN. I see. So you were in the Office of Administration?

Mr. LINDSAY. Correct, sir.

Mr. HORN. OK. Now, did you report to anybody, either one of

you, in the counsel to the President’s Office?

Mr. LINDSAY. Did I tell them about the problem?

Mr. HORN. Right.

Mr. LINDSAY. Absolutely.

Mr. HORN. OK. Did you ever do that, Mrs. Callahan?

Mrs. CALLAHAN. No, sir. I informed Mr. Lindsay.

Mr. HORN. Did anyone else, to your knowledge, in the White

House counsel’s office—who did you brief there?

Mr. LINDSAY. I was directed by the assistant to the President for

management and administration to talk to Charles Ruff, and I did.

Mr. HORN. The counsel?

Mr. LINDSAY. The counsel.

Mr. HORN. Yes.

Mr. BURTON. The gentleman’s time has expired. If you have further questions, we’ll get back to you.

Mr. Mica.

Mr. MICA. Thank you, Mr. Chairman.

Mr. Lindsay, you said—— Mr. LINDSAY. Yes, sir?

Mr. MICA [continuing]. It was your job to see that searches requested by the White House counsel were conducted; is that correct?

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Mr. LINDSAY. No. The searches by the White House counsel

were—the language and the definitions went directly from the

White House counsel’s office to a member of White House staff who

performed the search. It did not go through me.

Mr. MICA. So what did you do? You said you were primarily a

conduit? You never conducted any searches? What were you—what

was your role?

Mr. LINDSAY. I was the general counsel. We had—we performed

services which ranged from procurement, the—— Mr. MICA. But you’re saying you never conducted any searches?

Mr. LINDSAY. I was only involved in one search, only one in the

entire time.

Mr. MICA. Which was that one?

Mr. LINDSAY. That was the one where folks from the counsel’s office gave me four names, which I conveyed to folks in—my technical folks, who performed the search. That is the only search.

Mr. MICA. But you—other than that, you were not interested in

any information that had been obtained, right? You were just— your job was to see that things were executed in an administrative

fashion?

Mr. LINDSAY. This—— Mr. MICA. Making sure the systems worked, etc. Otherwise, why

would Mrs. Callahan tell you that things weren’t working?

Mr. LINDSAY. Right. I mean, it was—— Mr. MICA. That was your role.

Mr. LINDSAY. Right. Exactly—to maintain the systems and to

provide advice and guidance.

Mr. MICA. Now, Mrs. Callahan testified earlier that she came

and told you that there was a technical problem, right?

Mr. LINDSAY. Yes, sir.

Mr. MICA. Did she also tell you that people were—that someone

had uncovered some information regarding—relating to Ms.

Lewinsky or some matters?

Mr. LINDSAY. I have a recollection of that.

Mr. MICA. She did tell you. When you conveyed your information

to Mr. Ruff, did you tell him that there was just a technical problem, or did you tell him that there was also information relating

to this matter or any other matter under investigation being disclosed that it was uncovered and discussed, being discussed?

Mr. LINDSAY. I was not in the position to tell the counsel to the

President what matters were under investigation and which ones

were——

Mr. MICA. I’m not asking you that. What she told us earlier, she

told us earlier that Mr. Haas is out in the hall and there were people out in the halls discussing some of this, and Mr. Haas was like

a little—I think she used an analogy of a child getting a Christmas

present. He found information and there were things being disclosed.

Now, you told me you were primarily technical and administrative and she was telling you that the system was broken, there was

something wrong.

Mr. LINDSAY. Not technical. I wasn’t a—I’m not a technical person.

Mr. MICA. She told you that there was something wrong, right?

189

Mr. LINDSAY. Correct, sir.

Mr. MICA. OK. And she also told you that they were talking

about some of the information they found?

Mr. LINDSAY. That is correct, sir.

Mr. MICA. OK. And I asked you: did you tell Mr. Ruff there was

a technical problem, or did you convey some of the information that

she gave you on up?

Mr. LINDSAY. I know that I conveyed to Ruff that there was a

technical problem.

Mr. MICA. And beyond that tell me, because I’ll ask Mr. Ruff this

question under oath. You told him some of the other information,

too?

Mr. LINDSAY. I may have or may not have. I don’t have a recollection.

Mr. MICA. You don’t recall?

Mr. LINDSAY. I don’t recall.

Mr. MICA. OK. And you don’t recall—let me get to Mrs. Callahan

a second here.

Tell me how you conveyed to those folks—you said you advised

employees of the need to maintain confidentiality. I could go back

and get the exact record. Was that what you did?

Mrs. CALLAHAN. Sir, I advised them that they needed to focus on

the technical problem, because there was—— Mr. MICA. Did you say anything about confidentiality?

Mrs. CALLAHAN. I told them we had a sensitive situation and we

needed to work on figuring out the problem and that we shouldn’t

be just—— Mr. MICA. But three of them thought they were threatened or

that you mentioned going to jail, in some degrees. All of them who

testified said that they were told not to tell their spouses or talk

about it outside.

Tell me how—tell the committee what you told those people.

Mrs. CALLAHAN. OK. To the best of my recollection and understanding, I told them that there had been some discussion going on

in the hallways—again, the fact that Mr. Haas had raised the issue

about e-mail dealing with Monica Lewinsky and Ashley Raines was

unusual, because we had not asked for that information at this

point in time.

Being that there was some information being discussed in the

hallways very loosely, knowing the situation that was going on, we

obviously were not putting our attention on the technical issues to

figure out what the problem was.

So, with that understanding, I advised them that they needed to

focus on the technical issues——

Mr. MICA. That they shouldn’t even tell their spouses about this?

Mrs. CALLAHAN. Well, I told them if anyone had any questions,

refer them to myself or Mr. Lindsay.

Mr. MICA. The thing about their spouses, they’re all five of them

not telling us—telling us that that—they all heard part of this. You

don’t recall that?

Mrs. CALLAHAN. I don’t recall addressing their spouses, sir.

Mr. MICA. You recall the conversation, though, passing on the information about Mr. Haas to Mr. Lindsay, what was going on in

the hallways?

190

Mrs. CALLAHAN. Yes, sir.

Mr. MICA. Do you remember getting Mr. Lindsay on the telephone to reiterate what you had said as far as your need to maintain confidentiality? Did that occur or did that not occur?

Mrs. CALLAHAN. No, sir. I do recall getting Mr. Lindsay on the

phone and he was——

Mr. MICA. Mr. Lindsay, you don’t recall that conversation at all?

Mr. LINDSAY. No, I don’t. It very well might have happened, if

Laura said——

Mr. MICA. They all remember the conversation, and they remember it as a reinforcement to the warning they’d had from you about

confidentiality. Why did you institute that need to bring Mr. Lindsay into this?

Mrs. CALLAHAN. Well, sir, first of all, it was brought to my attention by Betty Lambuth that she was having difficulty with her own

employee being able to focus on the effort because he was in the

hallway talking about it.

Mr. MICA. And you had told him about this, and he knew that

there were people talking about what they’d found, and then you

got him on the phone to help keep them quiet; is that correct?

Mrs. CALLAHAN. I got Mr. Lindsay—Mr. Lindsay actually wanted

to be on the phone call to reiterate the standard practice and focus

on the technical issues.

Mr. MICA. Oh, so he volunteered to you to be on the phone after

you told him what was going on?

Mrs. CALLAHAN. Yes, the——

Mr. MICA. You didn’t ask him?

Mrs. CALLAHAN. No, sir.

Mr. MICA. You don’t—do you recall, Mr. Lindsay, asking to be on

the phone so you could tell——

Mr. LINDSAY. My previous testimony is I didn’t remember the

conversation.

Mr. MICA. They all—everyone testified today that they were told

to keep a lid on this, and they remembered the conversation with

you very well. And now she’s telling us that you asked for that conversation. But you don’t recall that conversation?

Mr. LINDSAY. I may have asked for that conversation. I have no

recollection of asking for the conversation. And if I did, I don’t—

you have to understand, sir, I didn’t know these people, particularly at this particular time. The concept of me discussing with

these people or making threats to people——

Mr. MICA. You’ve already told us you were only interested——

Mr. LINDSAY [continuing]. Who I did not know——

Mr. MICA [continuing]. In getting the technical things correction,

but now we find out that, in fact, you knew—and we heard this

Mrs. Callahan tell us today that they had—that they were talking

about information relating to—did you say Raines and Monica?

What did you say? Who did you say?

Mrs. CALLAHAN. The two individuals were Monica Lewinsky and

Ashley Raines.

Mr. MICA. OK.

Mrs. CALLAHAN. That was brought to my attention by Betty

Lambuth.

191

Mr. MICA. And you don’t remember how specific you were with

conveying this information to those above you, like Mr. Ruff; is that

right, Mr. Lindsay?

Mr. LINDSAY. I remember being very specific about the technical

problem and the fact that incoming e-mail was probably not being

ARMS managed. I remember being very specific about that.

The record shows that that was the emphasis of any conversation

I may have had.

Mr. MICA. Mrs. Callahan, it appears this morning they testified

that there may be tens of thousands of e-mails that we’ve never

seen. Is that a good estimate?

Mrs. CALLAHAN. I don’t know, sir. I did not see that quantity.

Mr. MICA. You did not? The system was broken. It wasn’t fixed.

We weren’t able to retrieve that information.

It also sounds like Ms. Lambuth was removed from her position,

and she claims that there was a slow-down and basically a trying— an effort to try to stop all of this. Did you see any of that?

Mrs. CALLAHAN. I was only involved in the very, very beginning

for a short period of time. I didn’t see that during my brief involvement, and I cannot say what happened after I was off the project.

Mr. MICA. Do I still have time, Mr. Chairman?

Mr. BURTON. You have 25 seconds.

Mr. MICA. So it appears, Mrs. Callahan, that you were concerned

about more than just the technical problem; you were concerned

about leaks of information, people talking in the hall and people

conversing about what they had found; is that correct?

Mrs. CALLAHAN. No, sir. I was concerned about them putting

their time and effort and energy into fixing the problem and not

talking about what if and would have, could have, should have type

discussions in the hallway, and that’s why I—— Mr. MICA. But you did mention both the technical problem and

the leaks to Mr. Lindsay; is that correct?

Mrs. CALLAHAN. I advised Mr. Lindsay of the technical problem

and the two names that were involved in what Mr. Haas disclosed

to Ms. Lambuth.

Mr. MICA. Thank you, Mr. Chairman.

Mr. BURTON. Mr. LaTourette, it is nice to have you back.

Mr. LATOURETTE. Thank you, Mr. Chairman.

I want to apologize to the panel. I was up doing something else

and I didn’t hear your testimony, but I have had the chance to review it with my staff.

I want to begin by saying something nice about you, Mr. Lindsay,

and disclose to my colleagues that Mr. Lindsay this week called me

and offered to come into my office and did come into my office and

spent an hour with me and answered any question that I might

have, and I appreciate that, and I think that that occurred as a result of his former association with Congressman Louis Stokes, for

whom I have the greatest admiration and was proud to serve with

Congressman Stokes before his retirement.

That being said—and so I thank you for that courtesy, but, that

being said, when I practiced law, we used to have an expression

that you could have five people see the same accident and nobody

would remember it exactly the same, but, likewise, you would be

hard-pressed to find somebody that said that there wasn’t an acciVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00199 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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dent. You know, someone may say the car was blue and one may

say—you know.

And I did sit through the first panel, and I have to tell you that

we had that kind of situation with the first panel, where

everybody’s recollection might have been slightly different, but everybody saw an accident.

And if we go in degrees of things, Ms. Lambuth was pretty strident in her observations and her recollections, Mr. Haas even made

the comment—and I think when Mr. Waxman was questioning

him—he said in your presence—and congratulations on your marriage. I understand you married a Secret Service agent, and I congratulate you on that, because I would have called you Ms.

Crabtree if I hadn’t known that—but that he was flippant, and

that’s how this ‘‘there’s a jail cell with your name on it’’ thing came

about. He sort of made a joke about it. And so it wasn’t just, you

know, people coming in hammering, saying, ‘‘jail cell, jail cell,’’ we

felt threatened.

And then Ms. Golas, I mean, she didn’t look like a trouble-maker

to me, so I hope you realize—and I’m not going to beat this drum

again, but the testimony that you present, the two of you, is in

stark and direct contrast with five or six people that we had in

here earlier, and it is troubling to me, and I know, from the questions you’ve received from my colleagues, it is at least troubling to

them. So I’m not going to focus on that.

I do want to talk about a couple of things that came up in our

conversation, Mr. Lindsay, and maybe you can sort of expound on

them and tell us what it is that you think.

My understanding is that you still have not entered into a contract to reconstruct the data from the mail server two. You’re taking bids on that now; is that right?

Mr. LINDSAY. That’s correct, sir.

Mr. LATOURETTE. And, again—and I made notes, but you can

correct me if I’m wrong—that one estimate that you received was that this would cost between $2 and $3 million and it would take

about 211 days to fix, do the reconstruction of these e-mails that

we still have—nobody has seen.

Mr. LINDSAY. That’s correct, sir.

Mr. LATOURETTE. OK. And I think I mentioned to you at the

time that the suspicious among us—and there are some suspicious

people in Congress. I try not to be one, but I get more suspicious

as time goes by—— Mr. LINDSAY. Yes, sir.

Mr. LATOURETTE [continuing]. That if I pulled out a calendar

and added up 211 days, 211 days from letting a contract would coincide rather nicely with the election wherein we elect either Vice

President Gore or Governor Bush to be the next President of the

United States.

Are you troubled by that at all? In other words, 21⁄2 years has

gone by, and now you may be entering into a contract that’s going

to take us past the election, so these things will remain sealed

more?

Mr. LINDSAY. Yes, sir. I would like to have those e-mails. If I

could have the e-mails reconstructed within a shorter period of

time—and take my word for it, that those estimates that we have

193

are not the end of the story. We are continuing and will continue

the try and find something that can put this—resolve this issue

quicker. And I believe that there are—I’ve certainly gone back,

and, after our conversation, I went back and talked to our folks and

said, ‘‘Isn’t there any way we can do any better?’’ And I think our

folks are going to apply their best analysis or best methodologies

trying to find somebody who can do this work faster, because I

think that’s the quickest way to get this issue resolved.

Mr. LATOURETTE. I hope so. And I think that also—I want to

talk about the decision to not reconstruct this Mail2 server. You

know, the other panel said you stopped the bleeding and no longer

are e-mails coming into the White House not captured on the

ARMS system, but we still have this body of stuff while there was

a problem.

Mr. LINDSAY. Yes, sir.

Mr. LATOURETTE. And, obviously, somebody made a decision to

not reconstruct this Mail2 server. And, again, relying on my memory of our conversation, you indicated that you attended a Cabinet

meeting where in the President and the Vice President were there,

and there was a discussion about Y2K compliance. And, if I remember your exact words to me, is the Vice President very clearly said

that the White House is not going to be the poster child for Y2K

noncompliance. Do you remember that meeting and indicating that

to me?

Mr. LINDSAY. That actually was information that was provided to

me by the assistant to the President for management and administration in a Cabinet meeting, I believe, that she attended.

Mr. LATOURETTE. OK.

Mr. LINDSAY. And that the importance of making sure and her

looking to me to make sure that we weren’t the ones that failed in

our Y2K effort.

Mr. LATOURETTE. Gotcha.

Mr. LINDSAY. Correct, sir.

Mr. LATOURETTE. And so, as a result—and, again, if you’ve been

asked this already, a decision was made to concentrate on Y2K and

things like reconstructing the Mail2 server were—sort of fell by the

wayside; is that right?

Mr. LINDSAY. That, amongst many, many other projects.

Mr. LATOURETTE. But was that decision yours in your position

at the OA? Did you make the decision to not reconstruct the Mail2

server until you became Y2K compliant and these other things

were taken care of?

Mr. LINDSAY. In November 1998, I was the chief of staff and general counsel. I wasn’t the director and I wasn’t the assistant to the

President for management and administration at that time, so I

couldn’t make that decision unilaterally.

Mr. LATOURETTE. Did you discuss the fact that you had five or

six projects out there pending, and one of them was the reconstruction of the Mail2 server—— Mr. LINDSAY. Yes.

Mr. LATOURETTE [continuing]. With a superior?

Mr. LINDSAY. Absolutely. And I will say this: that it was my recommendation, based on the technical review that my staff provided

to me, that the mission-critical systems for which our e-mail sysVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00201 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
194

tem was one was our No. 1 priority for Y2K reconstruction, so that

certainly was something I conveyed to the director of the Office of

Administration and to the assistant to the President for management and administration, so that was my recommendation.

Mr. LATOURETTE. Who was the director?

Mr. LINDSAY. Ada Posey.

Mr. LATOURETTE. OK. And there was an acquiescence by Ms.

Posey that the reconstruction of this server could wait until you did

other things?

Mr. LINDSAY. I don’t remember it being necessarily an acquiescence. I think that there—and I don’t remember—keep in mind, it

wasn’t a discussion about this particular matter. It was a discussion about a whole list of mission-critical projects, which we were— we had to provide to Congress and to other people as to what our

priorities were, and in our budget discussions. So it was a matter

of looking at this stack of information, and then the other stack of

information, and placing the priority on the mission-critical systems and those mission support systems which were more critical

than others.

Mr. LATOURETTE. Gotcha. Now, the fact that this body of e-mails

is not loaded into the ARMS system makes the Executive Office of

the President non-compliant with certain Federal rules and regulations and laws, does it not?

Mr. LINDSAY. Not to my knowledge.

Mr. LATOURETTE. Well, isn’t it required by the Federal Records

Act that these documents be loaded into a retrievable—electronically automatic retrievable system?

Mr. LINDSAY. It was—our analysis at the time is that the fact

that we maintained the records, as a matter of fact, on the

desktops where they were on the server, and the fact that we maintained the information on backup tapes meant that we were preserving the information in compliance with the Federal Records

Act.

Mr. LATOURETTE. OK. But the fact of the matter is that, although, if I understood Mr. Barry when he was here before, although on the hard drives—for instance, take this Lewinsky e-mail

that began some of this nonsense—that there was a couple responses, you know, with whoever her friend was, Raines, or whoever the friend was, that you could see one side of a

conversation——

Mr. LINDSAY. Yes.

Mr. LATOURETTE [continuing]. But you couldn’t see Lewinsky

writing into the White House, if I understood that right. So you

couldn’t reconstruct this information just by looking at the hard

drive, because the stuff that wasn’t being captured wasn’t on the

hard drives, because he would have—that’s where he would have

been looking, is it not?

Mr. LINDSAY. Well, what that information meant was that it was

ARMS managed, so the information wasn’t on the ARMS system.

That does not mean that those e-mails were not on people’s computer systems.

Mr. LATOURETTE. OK. Well, let me—I want to shift gears, because 10 minutes goes awfully quickly on this thing—— Mr. LINDSAY. Yes, sir.

195

Mr. LATOURETTE [continuing]. And I want to talk about the Office of the Vice President.

Mr. LINDSAY. Yes, sir.

Mr. LATOURETTE. We’ve been talking about this particular problem and the fact that incoming e-mails weren’t captured on this

Mail2 server. Are you aware today in your position that the Office

of the Vice President continues to have a similar problem?

Mr. LINDSAY. I am aware of the fact that there are problems, but

this is something that I’ve just most recently been apprised of.

Mr. LATOURETTE. But, specifically, let me just read you what I

think is going on, and you can tell me whether you know about it

or not.

Mr. LINDSAY. Yes, sir.

Mr. LATOURETTE. And that is that the Office of the Vice President set up their own system when they, I assume, took office, or

whatever, or maybe the Vice President invented his own system,

based upon—I don’t know.

Mr. LINDSAY. I don’t know.

Mr. LATOURETTE. But, anyway, that there was no capturing of

e-mails into the Office of the Vice President under the system that

they—in an ARMS system under the program that the Office of the

Vice President established. Do you know that to be so?

Mr. LINDSAY. I have been told that there are some e-mails from

the Vice President’s office which have not been captured by ARMS.

Mr. LATOURETTE. And, specifically, in 1997, they went onto this

Lotus Notes program that we have been talking about all day, but

still the program—the e-mail accounts that existed before 1997,

principally the Vice President’s account and 27 other accounts, the

ARMS system is still not capturing e-mails from outside the White

House into the Office of the Vice President. Do you know that to

be so?

Mr. LINDSAY. I do not know that to be so. It may be true, but

I just don’t know. I don’t have any knowledge.

Mr. LATOURETTE. Is that something that your office would have

responsibility and Mrs. Callahan would have responsibility and

then looking into overseeing and correcting, as you did with the

Mail2 server problem?

Mr. LINDSAY. Absolutely. I felt a little bit handicapped because

of this ongoing investigation. I have been very, very careful about

my communications with our technical staff to make sure that

there was no even appearance of impropriety in terms of me making any inappropriate communications with them. So, frankly, I

have not been the one looking into this matter and have not questioned our technical staff on the details of this matter.

Mrs. CALLAHAN. Mr. LaTourette, if I may please?

Mr. LATOURETTE. Sure.

Mrs. CALLAHAN. Just to clarify, sir, since you weren’t here earlier, I left the Executive Office of the President back in October

1998, so I am no longer there or have any ability to offer anything

in that regard.

Mr. LATOURETTE. I thank you. And, if I could just ask one more

question—and then I promise I’ll be quiet—I just—this problem

with the Office of the Vice President looks exactly like the problem

with the Mail2 server, and I would hope that the OA, the EOP, or

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whoever is going to take care of this—I happen to have a different

conclusion, and I think that the Federal Records Act and Armstrong v. the EOP require the maintenance of these systems.

Mr. LINDSAY. Understood, sir.

Mr. LATOURETTE. And I would hope that you’d fix it so that, you

know, if these things are smoking pistols, well, let the evidence be

out, and if they’re not, then there’s nothing there, and we want

that to be out. But to have this cloud hanging over this thing on

this body of 100,000, a million e-mails at a time when this Congress is very interested in what is going on in the Executive Office

of the President I think doesn’t do the American people a service

and I think it is a slap in the face of the Congress, so I hope you

do your best.

Mr. LINDSAY. Absolutely, sir. Thank you.

Mr. BURTON. Thank you, Mr. LaTourette.

Mr. Haas said during his testimony, when we asked him—in

fact, I asked this question: does any e-mail actually reside on the

PCs of the White House users, or does it all actually reside on the

servers,’’ and he said 98 percent is on the servers.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. Well, I think the point that you were trying to

make is that all of this was on the hard drives of the——

Mr. LINDSAY. No, sir. That’s not correct.

Mr. BURTON. It was on the servers. That’s where it was.

Mr. LINDSAY. Right. But when I go to my office right now and

look at e-mail—and I have the very first e-mail that I received

when I came here and started working for the White House, for Office of Administration—I can go on my computer. Though I’ve had

several computers change place, it all resides on the server. The

server is different than the ARMS records management system, as

it has been explained to me.

Mr. BURTON. I understand. But it was—I thought I understood

you to say that this was on the personal computers of the individuals.

Mr. LINDSAY. No. That’s not what I was saying.

Mr. BURTON. You didn’t say that? Fine.

Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

I understand that I think both of you have talked about—and I

don’t want to attribute this quote to both of you, but I think one

of you used the quote, trying to find out the scope and breadth of

the problem.

It must bother you tremendously that, not only have you all discovered the scope—not discovered the scope and breadth of the

problem, but you all haven’t fixed it. Don’t you find that particularly frustrating, Mr. Lindsay?

Mr. LINDSAY. Absolutely.

Mr. BARR. You’re in charge of this office, aren’t you?

Mr. LINDSAY. Absolutely. I mean, I wasn’t at that particular

time, but at one point I was.

Mr. BARR. We find that frustrating. You have tremendous credentials, and you spent a great deal of time telling us about them.

You’re in charge of this office. Here we are 2 years later, and the

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problem hasn’t been solved. What are you doing? Why can’t you get

a handle on this?

And I really don’t think it is just a matter of money.

Mr. LINDSAY. No, it isn’t a matter of money.

Mr. BARR. And it is a matter of law, also, is it not? I mean, you

all have a legal obligation to get to the bottom of this, don’t you?

Mr. LINDSAY. I don’t know about that. I have a personal obligation or feel very strongly, and I agree with you that I would have

preferred that this were resolved sooner. I would like it to be resolved as quickly as possible. But if—to put it into context, if we

had had systems failures as a result of Y2K and we hadn’t done

our work on that because we were doing a reconstruction, then it

would have been a much more serious problem.

Mr. BARR. There you go again. You blame it on Y2K, you blamed

it on too many burdens being placed on you all from all these congressional hearings and committees. You blamed it on major infrastructure problems. I mean, I really think you do yourself a disservice by coming up here and, you know, blaming this.

You all had—there is a serious problem here that has been

known to your office for over 2 years, a serious problem that at

least some of us on this committee believes is a legal problem, as

well, very possibly a criminal problem, and nothing has been done

on it.

Mr. LINDSAY. Well, let me—I beg to differ. One of the things that

happened—I think it is very, very important to note that in Octo- ber 1998 I received a proposal for $600,000 from Northrop Grumman to assess the nature of this problem and how we were to work

to resolve it. I am very happy to report that today the work that

work would have completed has been completed by Government career staff who work in the Office of Administration and have done

that work so that we can go to bid and contract.

The first step in resolving the problem was to fix the glitch in

the first instance. Without that, at least as I was informed by my

technical staff, you could not do reconstruction.

Then, the next step in the process was to identify what——

Mr. BARR. The information is there. The e-mails are there somewhere, aren’t they?

Mr. LINDSAY. I really would not be able to go into great detail

as to the technical elements of how it works. I can report to

you——

Mr. BARR. But that’s your job.

Mr. LINDSAY [continuing]. What trusted technical staff has reported to me.

Mr. BARR. This is your office.

Mr. LINDSAY. That is correct.

Mr. BARR. I mean, aren’t they—I mean, the others testified. I

mean, you can retrieve these things. They are there. You’re saying

it is a matter of money to get them. But there was one instance

that I think Mr. Haas testified to that a whole group of documents

were presented to you. I mean, where are those documents?

Mr. LINDSAY. They were presented to counsel’s office. But let me

reinforce——

Mr. BARR. No, no. No. Don’t just—please, don’t just—you talk

very fast.

198

Mr. LINDSAY. Sure.

Mr. BARR. Slow down just a second, please.

Mr. LINDSAY. Certainly.

Mr. BARR. The testimony earlier was that they were presented

to you, not to the counsel’s office, to you.

Mr. LINDSAY. They were presented to me, and then I transmitted

them to the counsel’s office.

Mr. BARR. Where are they?

Mr. LINDSAY. I couldn’t tell you.

Mr. BARR. Well, now, see, this is another problem. These documents are presented to you. You know very well—you are trained

in the law and certainly you know what is going on in the world

around you, certainly at the time in 1998, also.

Mr. LINDSAY. Yes, sir.

Mr. BARR. These are very sensitive documents. They are very relevant to the Office of Independent Counsel investigation, perhaps,

perhaps very relevant to an impeachment proceeding, perhaps very

relevant to Chairman Burton and our work on this committee.

Mr. LINDSAY. Yes, sir.

Mr. BARR. They come in to you. You don’t know whether—did

you look at them?

Mr. LINDSAY. No, I did not look at them. I conveyed them—— Mr. BARR. Did you give them to Mr. Ruff?

Mr. LINDSAY. I don’t remember—I remember taking it over to the

West Wing to the counsel’s office. I can’t remember if I gave it specifically to him, but they were certainly transmitted.

Mr. BARR. You know who Mr. Ruff is?

Mr. LINDSAY. Absolutely, sir.

Mr. BARR. OK. And you don’t recall whether you gave them to

Mr. Ruff?

Mr. LINDSAY. I remember taking them to the counsel’s office, myself.

Mr. BARR. Do you ever make notes?

Mr. LINDSAY. What’s that?

Mr. BARR. If you remember taking them over to the White House

counsel’s office, yourself, I don’t believe that you don’t know who

you gave them to.

Mr. LINDSAY. I can’t help that. All I can testify, sir—— Mr. BARR. You just walked over and—— Mr. LINDSAY [continuing]. Is to those matters for which I have

personal knowledge.

Mr. BARR. Sensitive documents.

Mr. LINDSAY. Yes.

Mr. BARR. Very important documents.

Mr. LINDSAY. And I believe that transmitting——

Mr. BARR. You took them over there and you don’t remember

who you gave them to?

Mr. LINDSAY [continuing]. Transmitting those sensitive documents to the counsel’s office of people whom I have the—a very significant degree of respect and admiration for is certainly an appropriate step.

Mr. BARR. And I’m sure it is very mutual. But the fact of the

matter is, I don’t think that somebody trained, as you have told us

you are and as you undoubtedly are, in the law in how to deal with

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sensitive documents would just take them over there and say,

‘‘Hey, I trust everybody in this office, so here they are, guys,’’ and

just walk away. I think you know exactly who you gave them to.

All I’m asking is who did you give those documents to?

Mr. LINDSAY. I can’t testify to facts which are not in my recollection, sir.

Mr. BARR. You cannot testify to facts that are not within your

recollection. I think that’s a new one.

Did you have any other discussions about any of this with Mr.

Ruff, the White House counsel?

Mr. LINDSAY. I don’t have—I had conversations with the counsel

on various topics at various times. This topic I’m certain was one

of them. I don’t have any specific recollection of other conversations

with the counsel’s office about other details of this particular matter, particularly after the transmittal of those particular documents, other than——

Mr. BARR. What did you do, just put it out of your mind? You’ve

told us that this is something very important.

Mr. LINDSAY. Absolutely. But there are two issues, sir.

Mr. BARR. Absolutely what? You put it out of your mind or that

it is really very important?

Mr. LINDSAY. It is important, but it is important for two reasons.

The first reason is that your committee was due information, and

I recognize that and respect that, but the determination as——

Mr. BARR. Probably the Office of Independent Counsel was, at

well.

Mr. LINDSAY. And the Office of Independent Counsel, and when

the——

Mr. BARR. And the Judiciary Committees, as well.

Mr. LINDSAY. Absolutely, sir. Absolutely.

Mr. BARR. But none of them got these documents.

Mr. LINDSAY. I would not know, sir.

Mr. BARR. You would not know. Did you give them to them?

Mr. LINDSAY. No, I did not.

Mr. BARR. Right. There is a memo here dated June 9, 1998, that

has been the subject of some discussion today, for John Podesta

from Virginia Apuzzo.

Mr. LINDSAY. I think it was the 19th, sir.

Mr. BARR. Pardon?

Mr. LINDSAY. I think it was the 19th.

Mr. BARR. Yes, June 19, 1998, exhibit WH–3 and 4.

Mr. LINDSAY. Yes, sir.

Mr. BARR. Did you get a copy of that?

Mr. LINDSAY. I reviewed it before it was transmitted to Ms.

Apuzzo.

Mr. BARR. All right. But it doesn’t show on here that it went

through you? You just reviewed it?

Mr. LINDSAY. No, it does not.

Mr. BARR. OK. Did you get a copy of it after the fact?

Mr. LINDSAY. I don’t have a recollection of getting a copy of it

after the fact. No. I think I—my testimony earlier was that, before

this—before actually conducting a search, I had forgotten about

that memo. I didn’t have a specific recollection of it at all until we

200

actually looked through the files in the Office of Management and

Administration to find it.

Mr. BARR. You found one of those specific things you didn’t have

a recollection of?

Mr. LINDSAY. That is correct, sir.

Mr. BARR. That is possible.

Mr. LINDSAY. Absolutely.

Mr. BARR. OK. This document—put up page 2, please—it ends

with the sentence, ‘‘I will keep you informed of our progress.’’ Is

that the end of the document? The rest was blank. It doesn’t even

have a page number or anything. It doesn’t show CC’s or anything.

Mr. LINDSAY. I think the document speaks for itself.

Mr. BARR. No. I’m asking: is that the end of the document, as

you remember it? Was there anything else on there that—— Mr. LINDSAY. It is the end of the document as I remember it.

Mr. BARR. OK. So it would not be standard procedure for a White

House memo to have pagination, just to make sure that, you know,

all pages are with the document or that certain pages belong to

them?

Mr. LINDSAY. I wouldn’t be able to—sometimes I’ve seen it and

sometimes I haven’t.

Mr. BARR. Really?

Mr. LINDSAY. Yes, sir.

Mr. BARR. Now, there’s another document here that we talked

about earlier today, White House 3, and one of your colleagues, Mr.

Huang, I think it was, had no idea what it was. Do you have any

idea what this is? These are talking points dated March 7, 2000.

Mr. LINDSAY. No, it didn’t strike a chord with me, sir.

Mr. BARR. Yes. Just looking at it, do you have any earthly idea?

I mean, have you ever seen a talking points document before?

Mr. LINDSAY. Have I ever seen a talking points document before?

Yes, sir.

Mr. BARR. OK. But this one rings no bell, whatsoever? You have

no idea who drafted this, what it was drafted for, or who might

have read it?

Mr. LINDSAY. No, I don’t, sir.

Mr. BARR. What conversations did you have with Mr. Podesta

about these matters?

Mr. LINDSAY. I let him know about the information that was contained in the memorandum, and that was the—he asked one question as to whether or not—— Mr. BARR. That’s the memorandum of June 19?

Mr. LINDSAY. That’s it, and that was the sum and substance of

all communications that I had with him about this particular matter.

Mr. BURTON. The gentleman’s time has expired, but I’m taking

my final time. If the gentleman needs some of that, I’ll be happy

to yield it to him.

Mr. BARR. I’d appreciate that.

Mr. BURTON. I just have a couple of questions here.

Mr. BARR. Yes, sir.

Mr. BURTON. Mr. Hawkins testified that he raised the issue of

threats with you, Mr. Lindsay. Did he?

Mr. LINDSAY. No, he did not.

201

Mr. BURTON. He said he did.

Mr. LINDSAY. He certainly did not.

Mr. BURTON. So that’s another lie by those folks.

Did Mr. Hawkins—— Mr. WAXMAN. Whoa, whoa—— Mr. BURTON. Now, wait a minute. Mr. Hawkins—— Mr. WAXMAN. Contradictions.

Mr. BURTON. Mr. Hawkins said he did it, and if it’s not true, it’s

a lie.

Mr. LINDSAY. That’s not my recollection of his testimony, but

that may—if that’s what the record shows.

Mr. BURTON. OK. The question is: did Mr. Hawkins raise the

issue—— Mr. LINDSAY. No, he did not.

Mr. BURTON [continuing]. Of threats with you?

Mr. LINDSAY. No, he did not.

Mr. BURTON. OK. He did not. Did Mr. Hawkins ever discuss

threats against his employees with you?

Mr. LINDSAY. No, he did not.

Mr. BURTON. He did not.

Mrs. Callahan, did anyone ever raise the matter of threats with

you?

Mrs. CALLAHAN. No, sir.

Mr. BURTON. No one did with you. Did anyone ever discuss with

you or raise the issue of the efforts to solve the problem not moving

fast enough?

Mrs. CALLAHAN. No, sir. Again, I was only involved for a short

period of time, so I don’t know what happened after I left the

project.

Mr. BURTON. Mr. Lindsay, did anyone ever discuss with you or

raise the issue of the efforts to solve the problem not moving fast

enough?

Mr. LINDSAY. Excuse me, sir?

Mr. BURTON. I said did anyone ever discuss with you or raise the

issue of the efforts to solve the problem not moving fast enough?

Mr. LINDSAY. I certainly discussed it, and I certainly raised that

issue with individuals.

Mr. BURTON. Did anyone raise it with you?

Mr. LINDSAY. I don’t have a recollection of people raising that to

me. I have a recollection of me raising it and wanting to have

things done faster.

Mr. BURTON. Who raised it with you? You don’t recall anybody

raising it with you about the process not moving—about maybe

them being frustrated with it?

Mr. LINDSAY. No.

Mr. BURTON. But nobody, to your recollection, raised the issue of

the whole process not moving fast enough and you being frustrated

about not moving fast enough?

Mr. LINDSAY. Not that I recollect. I was frustrated enough, sir.

Mr. BURTON. The documents that you took to the counsel’s office

that Mr. Barr referred to talked about Ms. Lewinsky. Now, the

search was not a complete search of information asked for by the

independent counsel, was it? It was just a partial search?

Mr. LINDSAY. I wouldn’t be able to answer that question, sir.

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Mr. BURTON. Well, it only referred to two people that Ms.

Lewinsky may have sent e-mails to.

Mr. LINDSAY. I would have to refresh my recollection as to what

the independent counsel’s request was.

Mr. BURTON. Well, when you found out there was information,

you know, and you took it to the counsel’s office, you had to know

that that was only partial, didn’t you? Did you think that was all

the e-mails that Ms. Lewinsky sent into the White House?

Mr. LINDSAY. I had no idea, sir.

Mr. BURTON. Well, did you ever go back and ask for a complete

search of Ms. Lewinsky’s e-mails?

Mr. LINDSAY. I would not ask for a search of any employee or

former employee’s e-mails, particularly someone who had worked

for the White House office, without consultation with the counsel’s

office.

Mr. BURTON. But the independent counsel had asked for any information relevant to that. We had asked for information on a

whole host of issues and had subpoenaed them. The independent

counsel had subpoenaed that information.

Mr. LINDSAY. As I said, sir, I would not have conducted an onmy-own search of records of that nature without consultation with

the counsel’s office.

Mr. BURTON. Well, did you or anyone to your knowledge ever tell

the independent counsel that that was only a partial search of the

Lewinsky e-mails?

Mr. LINDSAY. I didn’t, and I have—I wouldn’t have knowledge of

any communications. I’m not aware of any communication between

the White House counsel’s office and the independent counsel, not

a single one.

Mr. BARR. Mr. Chairman, can I take a moment of your time?

Mr. BURTON. Yes. I’ll yield to the gentleman.

Mr. BARR. Now, wait a minute. You knew it was just a partial

search. I mean, there were outstanding subpoenas from both the

Office of Independent Counsel and this committee—and I don’t

know if there were at that particular time by the Judiciary Committee. You knew that that was—by virtue of the information

brought to your attention in this memo—— Mr. LINDSAY. Yes, sir.

Mr. BARR [continuing]. And in your other conversations—— Mr. LINDSAY. Yes, sir.

Mr. BARR [continuing]. Quite aside from threats and so forth.

Let’s put that aside.

Mr. LINDSAY. Yes, sir.

Mr. BARR. You knew that there was a serious problem and you

knew that there was a high likelihood that information that was

under subpoena by the independent counsel and by at least one

committee of the Congress was very likely incomplete.

Mr. LINDSAY. I did not know that, sir.

Mr. BARR. Yes you—you couldn’t have helped but have known it

because of the nature of this specific problem brought to your attention because of these gaps—— Mr. LINDSAY. Sir, my—— Mr. BARR [continuing]. In this system because of the Mail2 problems.

203

Mr. LINDSAY. My staff has been unable to this day to tell me the

exact number of e-mails that weren’t included.

Mr. BARR. You don’t have to know—— Mr. LINDSAY. They have been unable to—— Mr. BARR [continuing]. The exact number of e-mails included.

There you go again. See? Talking about, you know, something very

precise. We’re asking a general concern here and a general matter

related to a very specific problem.

Mr. LINDSAY. Yes, sir.

Mr. BARR. OK? Now, there was testimony earlier today that Mr.

Barry was able to go back, after it became apparent to him—and

he isn’t even at near your level. He doesn’t have all of these degrees and so forth, I don’t think, that you told us about. He was

able to pinpoint just one that came to his attention, and he was

able to direct the people to go back and they uncovered it. They

found it because he knew that there was something incomplete in

a record.

Mr. LINDSAY. The counsel’s office—— Mr. BARR. Or in a series of records.

Mr. LINDSAY. The counsel’s office—— Mr. BARR. Later, Mr. Haas testified and you’ve testified that a

whole group of documents were brought to your attention that

you’d now have us believe you said, ‘‘See no evil, hear no evil,

speak no evil,’’ you just closed your eyes to it, dropped it off somewhere over at the White House.

Mr. LINDSAY. No. I didn’t drop it off at—— Mr. BARR. You knew that—— Mr. LINDSAY. Sir, I did not drop it off somewhere. I dropped it

off within the counsel’s office of the President of the United States.

That’s not just ‘‘somewhere.’’ Mr. BARR. And you had—and you would have us believe that you

have no specific recollection of who?

Mr. LINDSAY. I don’t.

Mr. BARR. Well, I know you’ve told us that. But you had to have

known. There is no way that you could not have known that these

records that were under subpoena—this was not some secret investigation—that they were not complete because of this specific problem, and you took no steps to uncover that. I think you had the

duty, as an officer of the court, quite aside from the laws that I

think apply here, to do that.

Mr. LINDSAY. I believe that I——

Mr. BARR. I suspect maybe that’s why you’re frustrated.

Mr. LINDSAY [continuing]. Fulfilled my obligations under my oath

and as an officer of the court to convey the information and the nature of the problem to the counsel’s office. The review of those documents to review them for responsiveness and to review them for

privilege and other things that lawyers routinely do with the production of documents was the responsibility of the counsel’s office

of the President of the United States.

Mr. BARR. If you were—— Mr. LINDSAY. That responsibility.

Mr. BARR. If you were so frustrated, as you’ve told us—and I

think that’s the word you just used with the chairman—what’s— tell us some of the specific steps you took to relieve your frustraVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00211 Fmt 6633 Sfmt 6633 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
204

tion, because we have a whole sheath of documents here expressing

continued frustration by Mr. Barry, for example—document after

document after document saying nothing—— Mr. LINDSAY. I can give you specific instances—— Mr. BARR [continuing]. Is being done.

Mr. LINDSAY. I can give you specific instances of how I expressed

my frustration. I had a contractor that wanted additional resources

who believed that the very issue that you’re talking about was outside of the scope of the contract. The very definition of that issue,

the way that they were doing it, meant delay, sir.

Mr. BARR. Mr. Barry—again, I go back to this, because there are

people far less qualified than you—Mr. Barry—— Mr. LINDSAY. Mr. Barry is very qualified.

Mr. BARR. Mr. Barry discovered that there was—in just one series of e-mails that there were gaps. He was able to check that out

and get an answer to it very quickly. Mr. Haas, it took him a little

bit more time, because he was requested pursuant to a chain of

command here, to gather more documents than just the one particular missing e-mail that Mr. Barry was looking for.

Mr. LINDSAY. But, sir—— Mr. BARR. Mr. Haas was able to do so. You’re sitting here telling

us today that you, as the head of this entire office—— Mr. LINDSAY. At the time I was the general counsel.

Mr. BARR [continuing]. With tremendous background in this

haven’t been able to do it?

Mr. LINDSAY. What I am saying, sir, is that, as I recollect Mr.

Barry’s testimony, it was that he discovered a gap in those particular e-mails. But remember, sir, that information was coming from

the ARMS system, alone. That was not the only source of documentary evidence that was provided to investigative committees—— Mr. BARR. But at least you knew that.

Mr. LINDSAY [continuing]. Or to other organizations.

Mr. BARR. What I’m saying is I’m just extrapolating. I’m saying

if he discovered that——

Mr. LINDSAY. Yes, sir.

Mr. BARR [continuing]. In January 1998, just based on a very

quick review of a couple of e-mails, he noticed there was a gap that

didn’t make any sense—— Mr. LINDSAY. Yes, sir.

Mr. BARR [continuing]. He got onto it right away and discovered

the problem, alerted your office in January 1998——

Mr. LINDSAY. He did not notify my office in January 1998.

Mr. BARR. Yes, he did notify your office. Now, I don’t know

whether you’re calling him a liar or not, but he testified that he

sent a memo—an incident report——

Mr. LINDSAY. To his supervisor.

Mr. BARR [continuing]. To the office—to OA. What is OA?

Mr. LINDSAY. The Office of Administration is——

Mr. BARR. OK. I’m saying that’s—— Mr. LINDSAY [continuing]. A Federal agency.

Mr. BARR [continuing]. Your office. Now, he didn’t send it to the

Office of Administration in Alaska or somewhere, it was your office.

Mr. LINDSAY. Using that analogy——

Mr. BARR. Your office knew about this.

205

Mr. LINDSAY [continuing]. Him having knowledge is notification

to the Office of Administration, because he is part of the Office of

Administration.

Mr. BARR. No. A piece of paper was sent and there was followup

done, and you all did nothing. That’s our frustration. And you

haven’t done anything today to relieve that.

Mr. LINDSAY. That’s not correct, sir.

Mr. BARR. You’re getting inside my mind now? I’m telling you

you haven’t.

Mr. LINDSAY. What I’m saying is we did $600,000 worth of work

by Government—dedicated Government employees. I will not discount the work that those people did during a period where they

were addressing the Y2K problem and other types of other pressing

issues. Those people did that work. They actually completed it, and

they did it at a cost that saved the taxpayers—— Mr. BARR. You did it?

Mr. LINDSAY [continuing]. That saved the taxpayers money.

Mr. BARR. You did not. This is your responsibility. You have not

done it.

Mr. LINDSAY. That’s correct, sir. I have not completed the—— Mr. BARR. And you are here today—— Mr. LINDSAY [continuing]. Reconstruction. That is correct.

Mr. BARR. You haven’t done anything.

Mr. LINDSAY. That is not correct, sir.

Mr. BURTON. My time has expired.

Mr. Waxman, do you have a closing question or two?

Mr. WAXMAN. Yes, I do, Mr. Chairman.

I must say, people have different recollections of events, and I

have a lot of sympathy for the witnesses. They are being asked to

recollect and tell us about detailed activities. I don’t know, I guess

this is 2 years ago; isn’t that right?

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. And I don’t know if I could have recollection of

events 2 years ago, who said what to whom. I could have a general

idea. And when people have different testimony, it doesn’t mean

that one person is lying and another person is not. People just talk

themselves into what they remember. It doesn’t mean it was true.

They talk themselves into thinking that must be what happened.

Now, that’s a situation where we’re talking about events of many

years ago.

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. We’ve all been here for many hours, and Mr. Burton made the statement that he understood Mr. Hawkins to have

said that he told you about threats, and you said that wasn’t the

case. Is that your testimony?

Mr. LINDSAY. That is exactly correct, sir.

Mr. WAXMAN. Now, the fact of the matter is I have been here

most of the day. I was certainly here for Mr. Hawkins’ testimony.

And I don’t recall that he said that. I believe Mr. Burton believes

what he said was true.

Mr. BURTON. I’d be glad to give you the transcript.

Mr. WAXMAN. Well, I think the transcript will tell us, but maybe

we can do something even better. We have transcripts. We have

written transcripts of these proceedings, so everything is taken

206

down and people have a chance to change it, but it is all taken

down. What we’re going to have, because of the chairman’s wisdom,

is an Internet broadcast of our proceedings, gavel-to-gavel. And

during the proceedings we’ve had a tape made of some of the testimony. So I would like to, with everybody’s indulgence—and I have

the time to do it—show a tape, and I think we could then see what

Mr. Hawkins actually said a few hours ago.

I can understand we can have different recollections of what he

said and be very sincere about those different recollections, but the

fact of the matter is that even being sincere doesn’t make it accurate.

So I wonder if we could show that videotape.

Well, that obviously isn’t the right one. S&P futures were going

down, but we all know that the stock market went up today.

[Laughter.]

We are, obviously, operating in very fast timeframe, but if the

chairman will indulge me——

Mr. BURTON. That’s fine with me.

Mr. WAXMAN. I think it is coming right up.

Mr. BURTON. Mr. Hawkins testified to me more than once today.

We asked him questions back and forth.

Mr. BARR. Mr. Chairman, if I can inquire, I think Mr. Hawkins’

testimony——

Mr. WAXMAN. Mr. Chairman, it is my time, and it is not up to

the gentleman to inquire at all——

Mr. BARR. I suspect you can stop the time.

Mr. WAXMAN. It’s my time, and——

Mr. BURTON. I will give you whatever time you need after Mr.

Waxman——

Mr. WAXMAN. If we could be quiet, we can hear the tape.

Silent movies. Do we have sound on this one?

Mr. BARR. Mr. Waxman is right, I did not hear the word ‘‘threat.’’

Mr. WAXMAN. Well, Mr. Chairman, I don’t know what to say.

Maybe we’ve gotten too high-tech—maybe we can’t even get a tape

recorder to work. You can understand why——

Mr. LINDSAY. I’m sympathetic to your circumstances.

Mr. WAXMAN [continuing]. The White House can’t get the whole

e-mail system to work to track all the e-mails.

I think when we do look at the record I think we’re going to see

that Mr. Hawkins made a different statement than what the chairman believed, but I think his belief is sincere. And I may be wrong,

and we’ll see what the record was. If Mr. Hawkins were here we

could ask him.

But the point I’m really making is it is hard to remember precisely what somebody said in a hearing 6 hours ago, let alone 2

years ago. I still have some time, which is my time—the way this

committee was supposed to work is we have a half hour—but now

we have 10 minutes. We had a half hour and we split it up, and

now I’ve got 10 minutes. And I am, obviously, trying to stall for

some time so we can hear this tape.

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. Because I think it is going to give us an accurate

portrayal.

207

Mr. BURTON. You can mess with the tape. We’ll come back after

the vote. OK?

Mr. WAXMAN. OK. Then we’ll come back.

[Recess.]

Mr. WAXMAN. Mr. Chairman, I think we’ve handled our high-tech

glitch, and I’d like to have that tape rolled.

[Tape played.]

Mr. WAXMAN. They missed a question.

Well, as I understand, what the tape would have shown would

have been a question from Mr. LaTourette, who is a very good

questioner, and an answer by Mr. Hawkins indicating that he was

not told by Mr. Lindsay about the threats. But different people can

have different recollections.

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. That’s the point I’m making, as well as the other

point that’s made is that even in this high-tech world things can

get screwed up, and it’s clear that the White House expenditure

of—how much money was spent on that whole arms system?

Mr. LINDSAY. There was $14 million appropriated originally.

Mr. WAXMAN. Now, we spend millions and millions of dollars to

get a system that would retrieve every e-mail so that all the emails could be available to all the independent counsels and all the

committees of Congress. The White House made an effort, in hiring

Northrop Grumman, to get that information on that system, and

then they found out that there was a glitch in the system. There

were contractors. There were subcontractors. This morning we saw

that the subcontractors and the contractors were feuding with each

other and had different stories to say about the events.

And what bothers all of us is that when the White House heard

about this we weren’t informed in a timely manner, presumably because the White House was hoping it would be fixed. I was hoping

this video would have been fixed in time, and then we would have

had at least that snippet.

But the reality is that, even in this high-tech age, things don’t

always work out the way they are supposed to, and human beings’

being what they are, hear different things at different times. In

fact, they say different things at different times, as their recollection gets affected by other people’s statements.

So it is my understanding that, from that tape, we would have

heard Mr. Hawkins saying one thing. There may be other times he

said other things as to the threats. But there was one statement

made that Mrs. Callahan told these contractors not to talk, perhaps

with a threat of jail, but I think one of them said that you had

made those comments because Mr. Lindsay had asked you to make

those comments. You both would deny that or do either of you remember saying anything along those lines?

Mr. LINDSAY. I certainly didn’t pass or ask that any instruction

be passed on to instruct anyone to intimidate any other person. Absolutely not. And I’m not aware of anyone else doing it, certainly.

Mr. WAXMAN. And, Mrs. Callahan, he didn’t ask you to do it, and

you say you didn’t do it?

Mrs. CALLAHAN. Mr. Lindsay never asked me to threaten any

employees and I never personally threatened any employees.

Mr. WAXMAN. Thank you.

208

Thank you, Mr. Chairman.

Mr. BURTON. The snippet that we just saw was just that, a

snippet, and my staff will go through the entire discussion to make

sure that we have it all, but I will read to you what was said by

Mr. Hawkins on March 12th—well, it wasn’t March 12th, but when

we interviewed him, Mr. Hawkins, here’s what he said. ‘‘Hawkins

went to speak to Lindsay and Crabtree and insisted that all work

be done within the bounds of the contract. When Hawkins had this

conversation, he did not know what work the contract employees

were doing, simply that it was outside the bounds of the contract.

At the meeting, Crabtree told Hawkins, ‘Everything was fine before

you stepped in.’ When he confronted Crabtree about her threatening his employees with jail, she did not deny doing so, but rather

turned and left the room without a word. Lindsay further told

Hawkins, ‘I hope you appreciate my position.’ To this, Hawkins responded—’’ and pardon my language. This is his language—‘‘to

this, Hawkins responded, ‘I’m pissed. Dale Helms or Jim Wright

didn’t authorize the work. Until Dale Helms authorizes the work,

it’s not going to get done. I’ve instructed my employees accordingly,

and I hope you understand my position.’ Lindsay replied, ‘Is that

your final position?’ Hawkins says, ‘It is.’ ’’ So the issue was raised with Crabtree and Lindsay, according to

Mr. Hawkins, and I think we’ll probably find that on the tape, as

well.

But let me just end up by saying this: I understand the minority,

as they always do, pooh-poohing things that we discover in uncovering these investigations, and I understand the rationale for their

position, but let me just say this: the e-mails were subpoenaed

right along with everything else by the independent counsel, by us,

this committee, by a whole host of people. They were not delivered.

They were discovered in 1998. In September 1996, this glitch started. That was right during the time that possible campaign finance

mis-steps were taken or illegal activities took place. That was very

relevant to the campaign finance investigation for which we subpoenaed these documents. We did not get them.

And you folks have a different view. You say things didn’t happen, when six other people sat there today and took issue with you.

I think this is something that is going to have to be looked into

further. I don’t believe all six of those people are lying. I don’t believe those five people felt intimidated because nothing was said to

them. I think something was said to them, and I think it needs to

be looked into further.

And the last thing is, we’ve waited 2 years for these documents.

Now we’re finding out, under questioning from Mr. LaTourette,

that, even if a contract was signed today, it would be 211 days—

I believe that’s right, isn’t it, Mr. LaTourette—211 or so days before we would get the information that we’re entitled to, and that

would be after this administration leaves office.

It sure sounds like somebody is blocking, and this is very serious

stuff, because if illegal campaign contributions were solicited by

people at the White House, if they were involved in a cover-up of

other investigations that have been going on, then somebody needs

to be held accountable and taken to task and possibly even prosecuted.

209

And so for us not to get this information after 2 years is just unthinkable, and for you not to even start the process is unthinkable.

So I just say I’m frustrated. I think my colleagues are frustrated.

Mr. Barr, did you have any closing comments?

Mr. BARR. Yes, if you’ll yield——

Mr. BURTON. I’ll yield.

Mr. BARR [continuing]. For just a moment, Mr. Chairman.

Somebody a little bit earlier—maybe it was you, Mr. Lindsay—

mentioned the name Ada Posey. Did you mention that, or did you,

Mrs. Callahan?

Mr. LINDSAY. At one point in my testimony I may have mentioned her name.

Mr. BARR. Yes. Who is she?

Mr. LINDSAY. She is the director of the Office of the Administration.

Mr. BARR. Is she in the—was she an assistant to Hillary Clinton?

Mr. LINDSAY. No. Not to my knowledge.

Mr. BARR. Really? I thought that Ada Posey was. How long has

she been in the current position?

Mr. LINDSAY. She no longer works for the Executive Office of the

President.

Mr. BARR. That’s not the question. How long had she served

there in that office?

Mr. LINDSAY. I believe for 5 or 6 years.

Mr. BARR. Until what time?

Mr. LINDSAY. Until December 1998.

Mr. BARR. OK. Now, have either of you had any discussions at

all at any time with lawyers from Northrop Grumman?

Mr. LINDSAY. Have I, personally?

Mr. BARR. Yes.

Mr. LINDSAY. Ever?

Mr. BARR. Yes.

Mr. LINDSAY. When we negotiated the contract for Northrop

Grumman to come on board, they brought in their counsel at the

signing ceremony. I remember meeting a counsel from—someone

from the general counsel’s office from Northrop Grumman. It must

have been in early 1997.

Mr. BARR. That was the only contact you’ve had with lawyers

from Northrop Grumman?

Mr. LINDSAY. I don’t have any other specific recollection of conversations with lawyers from Northrop Grumman.

Mr. BARR. Have you had any conversations with them about any

of these matters——

Mr. LINDSAY. Me?

Mr. BARR [continuing]. Under discussion today?

Mr. LINDSAY. No. Absolutely not.

Mr. BARR. At no time?

Mr. LINDSAY. Not that I’m aware of.

Mr. BARR. Well, you would be aware of them, wouldn’t you?

Mr. LINDSAY. I would think so. No, I did not have any conversations with anyone from Northrop Grumman.

Mr. BARR. Mrs. Callahan, have you?

Mrs. CALLAHAN. No, sir.

210

Mr. BARR. OK. How about attorneys from the Department of Justice?

Mr. LINDSAY. At any time during my tenure?

Mr. BARR. Concerning any of these matters.

Mr. LINDSAY. Yes.

Mr. BARR. When?

Mr. LINDSAY. Shortly after the Mail2 glitch was discovered.

Please keep in mind, sir, we were involved in several pieces of

records litigation that were going on at that time, and we regularly

conferred with our appellate counsel and with elements and individuals from the Justice Department on how those matters were

proceeding. We provided information to them. They were our attorneys, and so we had regular communications with them on matters

dealing with records.

Mr. BARR. How about these matters, these records?

Mr. LINDSAY. Yes. I had one conversation with an individual in

the—from the Justice Department about these matters shortly

thereafter they were discovered.

Mr. BARR. Which would be in when, because we have a difference

over when—— Mr. LINDSAY. I think it was in June—— Mr. BARR [continuing]. It was discovered.

Mr. LINDSAY [continuing]. 1998. I had a conversation with someone from the Justice Department because my concern was—they

were experts in the Federal Records Act, and I wanted to know and

make sure that any—to see if there were any Federal records

issues that were associated with the particular anomaly issue.

Mr. BARR. So this was just a matter over that? It didn’t concern

the specific files that might have been lost or that might need to

be located?

Mr. LINDSAY. No. I was the general counsel for the Office of Administration. One of my responsibilities was to work with them in

pending litigation, and if there was information that developed that

was relevant to that pending litigation, it was my responsibility to

make sure that I let them know about it, which is what I did.

Mr. BARR. But the Department of Justice and its lawyers did not

question you, or you didn’t have discussions with them about the

specifics of what we’re talking about here today? They expressed no

interest in what files might be missing, how to retrieve them, why

they’re missing, and so forth?

Mr. LINDSAY. In terms of what files, no. It was a question of

whether or not records that were not put into the ARMS system,

was that information—just providing them with the information as

to what happened so that they could make a determination of any

other action that needed to be taken. We didn’t talk about the subject matter. We talked about just the facts associated with that

matter, and it was a relatively short conversation.

Mr. BARR. And who was that with?

Mr. LINDSAY. I believe it was Jason Baron from the Justice Department.

Mr. BARR. And that’s the only conversation about these matters,

specifically, that you’ve had with the Department of Justice?

Mr. LINDSAY. That’s the only one that I have a specific recollection of.

211

Mr. BARR. Are there any that you don’t have a specific recollection of?

Mr. LINDSAY. I don’t know how I could—— Mr. BARR. I mean, I don’t know how—I mean, everything you say

you have a caveat, a footnote to it.

Mr. LINDSAY. Is that a question, sir?

Mr. BARR. No, it’s a statement.

Mr. LINDSAY. OK.

Mr. BARR. Mrs. Callahan—— Mrs. CALLAHAN. Yes, sir?

Mr. BARR [continuing]. Have you had any contacts, conversations

of any sort with the Department of Justice or any Department of

Justice attorneys concerning any of these matters that bring you

here today?

Mrs. CALLAHAN. None of these matters, sir.

Mr. BARR. OK. They’ve never approached you and asked you any

questions about any of this?

Mrs. CALLAHAN. None of this, sir.

Mr. BARR. Pardon?

Mrs. CALLAHAN. None of this on this subject, sir.

Mr. BARR. OK. And have you had any conversations with or discussed any of these matters with this lady, Ada Posey?

Mrs. CALLAHAN. No, sir.

Mr. BARR. At no time?

Mrs. CALLAHAN. No, sir.

Mr. BARR. OK. Thank you.

Thank you, Mr. Chairman.

Mr. BURTON. Yes, Mr. Waxman?

Mr. WAXMAN. I have a few questions. It won’t take very long.

Mr. BURTON. Well, if you have questions, we’ll probably have another round. Go ahead.

Mr. WAXMAN. I was interested in recollections of people about

the conversation. Shortly after the problem was discovered, Laura

Crabtree, now Mrs. Callahan, who was the branch chief of the customer service computer support branch in the Office of Administration, she had this meeting with Ms. Golas, Mr. Spriggs, Ms.

Lambuth, Mr. Haas, and Ms. Salim, all of whom testified this

morning; Mr. Lindsay, who was OA’s general counsel, spoke with

those present by speaker phone and instructed them to continue investigating the e-mail problem, but to avoid discussing with anyone

else because it was a sensitive matter.

Now, that was when Mr. Haas thought that if he told his wife,

that you said, Mrs. Callahan, ‘‘There would be a jail cell with your

name on it.’’ Now, when these witnesses who testified this morning were

questioned by the staff, obviously Ms. Lambuth accused you of

threatening her with jail, Mr. Haas remembered that, but Ms.

Salim and Ms. Golas did not recall any threats being made at that

meeting, and neither Ms. Golas nor Mr. Spriggs recall any mention

of the word ‘‘jail.’’ That was what they said in the interview. And

then they testified somewhat like that, but a little differently, this

morning. So people have their recollections changed. It’s human nature, and I wouldn’t attribute bad intent on anybody’s part. You try

to remember the events of 2 years ago.

212

Now, I have been told by my staff that this tape is now ready

in its entirety, and I’m going to give that one last chance. So, if we

could, let’s see what we have.

[Tape played.]

Mr. WAXMAN. Now, that only was a snippet, and I don’t know

what was going to follow next, if he had any further answer to Mr.

Burton, and he may well have said something different in the

interview. But, again, my essential point is that people have different recollections of what happened 2 years ago, and we even

have different recollections of what happened a few hours ago. But

I thought that we all should have seen that tape, and I regret that

it has taken us so long to get it up there, but I think that tape,

at least as far as it goes, speaks for itself.

I yield back the balance of my time.

Mr. BURTON. Well, I’ll just close then by saying that five people,

as I’ve said before, said they felt threatened. Two of those people

said that they had been told they would go to jail. One, when she

went to her supervisor, and Mr. Hawkins—and Mr. Supervisor

said, ‘‘You’ve got to tell us what’s going on,’’ and she said, ‘‘Hey,

I can’t tell you.’’ He said, ‘‘Well, that borders on insubordination.’’ She said, ‘‘I’d rather be insubordinate than to go to jail.’’ Now, that

sentence, alone, infers that she felt the same way as the other two.

Now, that’s three out of the five.

But, in any event, all five of them felt threatened to the degree

that they had to go to a park across the street to talk or to

Starbuck’s, because they felt like they had to keep this stuff quiet.

So, you know, and then the other fact is that we haven’t had

these e-mails, and it has been well over 2 years. Nothing has been

done, and they’re trying to run out the clock. At least that’s how

it appears to me, and I think to probably most people who paid attention.

I think we’re going around in circles right now, so, unless there’s

further comment—real quickly, Mr. Barr. I want to adjourn this

thing.

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

Mr. Lindsay, just a quick followup to—— Mr. LINDSAY. Yes, sir.

Mr. BARR [continuing]. The question and answer about the Department of Justice lawyers. Let me be more specific. Did you approach them to disclose this problem to them?

Mr. LINDSAY. Yes, I did, sir.

Mr. BARR. OK. They didn’t approach you?

Mr. LINDSAY. No, sir.

Mr. BARR. OK. And what was the specific purpose of your request to them?

Mr. LINDSAY. If I remember correctly, my question was: do we

have a Federal records issue associated with the fact that this information had been, as a result of a glitch, not included in the

ARMS records management system? I believe that was the specific

question.

Mr. BARR. Your concern with the Federal Records Act is what?

Mr. LINDSAY. He would—the folks at the Justice Department

were experts in it and I had a concern. I wanted to make sure that

I conferred——

213

Mr. BARR. I mean, what was your concern? I agree, you should

have been concerned.

Mr. LINDSAY. Yes.

Mr. BARR. That’s a real problem with all of this. But what is

your—what was your concern with the Federal Records Act?

Mr. LINDSAY. Sir, I believe—in my normal course of business I

considered it due diligence on my part to make that inquiry. I also

wanted to make sure that they were aware of this so that it could

not—it wasn’t relevant or wasn’t something that they needed to

have or needed information about in relation to other pending litigation.

Mr. BARR. Doesn’t the Federal Records Act require these documents to be retained and retrieved?

Mr. LINDSAY. They were retained.

Mr. BARR. Isn’t that a concern?

Mr. LINDSAY. The question was: did they have to be retained in

ARMS, as opposed to other means of retaining those documents,

and my recollection of the response that I got was that no, this was

a technical, non-human-intervention problem that is not a wilful

act in any way, shape, or form; therefore, you are not running afoul

of the Federal Records Act and you are maintaining the information in another form, which can be searched at a later date and

maintained to preserve these records.

Mr. BARR. So the records are retrievable? They are there?

Mr. LINDSAY. To the best of my knowledge, yes.

Mr. BARR. OK. You all just haven’t gotten them?

Mr. LINDSAY. They have to be reconstructed before they can be

retrieved.

Mr. BARR. Yes.

Mr. LINDSAY. That’s the thing we’re going to work on trying to

get collapsed to as short a time period as humanly possible.

Mr. BARR. Right. Were these lawyers that you talked to at the

Department of Justice, were they the same lawyers representing

the White House in civil litigation?

Mr. LINDSAY. In civil—what civil litigation?

Mr. BARR. Involving the White House.

Mr. LINDSAY. They represented the Office of Administration in a

records case, the Carlin case. That’s the matter which I’m familiar

with what they did.

Mr. BARR. What case is that, the Carlin case?

Mr. LINDSAY. That case dealt with—there were plaintiffs that

were essentially claiming that there should be Federal records systems, electronic records management systems by all Federal agencies, including, if my memory serves me, including Congress. The

contention was is that any memorandum that you would generate

should be retained in an electronic records management system

similar to the one that we maintain with ARMS. That was one of

the contentions in the argument.

Obviously, doing that, just from anyone’s casual observation,

would be a very expensive and complicated proposition, and the

issues in those matters dealt with what was the scope of that,

whether or not the general records 20 issued by the National Archives required that there be that kind of records management system.

214

Mr. BARR. The White House has known for quite some time that

this problem exists.

Mr. LINDSAY. Which problem?

Mr. BARR. The problem that brings us all here today. And you’ve

testified that it can be resolved, it’s simply a question of money.

Mr. LINDSAY. No, I did not say it was a question of money. It

wasn’t a question of money at all. It was more a question of people

than it was of money.

Mr. BARR. Well, you’d have to pay those people, correct?

Mr. LINDSAY. Not just a matter of paying the people. Contractors

that are brought in must be managed by people who can make sure

that the Government’s interests are covered, in terms of making

sure that they report responsibly, that they perform their responsibilities. Government workers must be involved in providing supervision for those activities.

Mr. BARR. Why hasn’t it been done, then? I mean, you’re confusing the issue, I think, here. I mean, is it that you all don’t have

enough people, you all don’t have enough money, you all don’t have

enough qualified people? What is it?

Mr. LINDSAY. What we have to remember is——

Mr. BARR. And you tell us you’ve been frustrated for 2 years over

this.

Mr. LINDSAY. Sir, in November 1998 my technical staff came to

me and said, ‘‘You will not be able to meet your Y2K objectives

with your systems.’’ Plain and simple. That was a very serious

proposition.

What that meant is not only would this e-mail issue or other

things happen that would be a problem, but it also meant that we

could possibly have systems failures, and our duty to provide that

kind of administrative support to the Executive Office of the President would not be fulfilled.

So what we did is we compiled and looked at the list, and of all

the mission-critical systems, those systems that we had to maintain to make sure that we continued to provide the support for the

Presidency that we’re required to do under statute——

Mr. BARR. Will you define—you keep using this term ‘‘mission

critical system’’ and ‘‘mission critical project.’’

Mr. LINDSAY. Yes, sir.

Mr. BARR. Wasn’t this mission critical?

Mr. LINDSAY. No, it was not, sir.

Mr. BARR. Oh, you don’t consider this mission critical?

Mr. LINDSAY. It was not considered mission critical. There was

a very——

Mr. BARR. To the Office of Independent Counsel and this committee? Would the Impeachment Committee have considered this mission critical?

Mr. LINDSAY. I don’t know, sir.

Mr. BARR. I mean, it seems fairly important to me.

Mr. LINDSAY. Saying it is not mission critical does not mean that

it is not important. All of the projects that we have——

Mr. BARR. It means it doesn’t get done.

Mr. LINDSAY. No. It means that it doesn’t get done first.

Mr. BARR. Well, it hasn’t even been done last.

215

Mr. LINDSAY. It has been done—the $600,000 worth of work that

the contractor was going to charge us—— Mr. BARR. So it is a question of money.

Mr. LINDSAY [continuing]. Has been worked on.

Mr. BARR. Has the White House requested the funds necessary

to do this?

Mr. LINDSAY. It was not a question of money. We have requested

funds to do it. The question—— Mr. BARR. Well, if you don’t need more money, then why hasn’t

it been done?

Mr. LINDSAY. Sir, I made the statement that it wasn’t a question

of money, step one.

Step No. 2 is that we needed the staff to be able to do it.

At the conclusion of Y2K, we had Government staff that had

been working on Y2K work on the resolution of this issue. That is

step two.

To resolve step one, I have made the request to the Treasury,

Postal Appropriations Committee that they provide or allow us to

spend funds from another account in that area so that we could

pay for the contract to perform the work. But prior to making that

request we had to know how much money to ask for. We had to

know—and we’ve worked out a relationship with that committee

where they have always asked us, prior to an appropriation, ‘‘What

is the total project cost? What are the taxpayers going to have to

pay to actually complete this issue?’’ They don’t want to just begin

a project and not know where it is going to end. And I think that

is a very appropriate question that Mr. Kolbe’s staff would have for

us, and we wanted to make sure that we were prepared for that.

Mr. BARR. Now Mr. Kolbe’s—— Mr. BURTON. Let me—— Mr. BARR. I yield, Mr. Chairman.

Mr. BURTON. Who did not consider the mission critical? Somebody had to tell you this is not a top priority. Who was that?

Mr. LINDSAY. There was a very elaborate process.

Mr. BURTON. No, no. Who?

Mr. LINDSAY. I could not tell you who.

Mr. BURTON. You don’t know who told you this was not a top priority? When the independent counsel, this committee, the Impeachment Committee, the Judiciary Committee of the U.S. House was

conducting—you can’t remember who didn’t—who told you—— Mr. LINDSAY. Sir, I really do believe we’re getting two issues confused. The first issue is the responsiveness of documents. That is

an issue that you very legitimately and I very much respect that

you have a concern about having documents produced that should

be produced to those appropriate bodies that should be produced.

That is a determination that the counsel’s office would have communicated and would be involved in making a determination.

There is a problem No. 2.

Mr. BURTON. Wait a minute.

Mr. LINDSAY. The second problem is the resolution of the—— Mr. BURTON. How did you know——

Mr. LINDSAY [continuing]. Glitch and the reconstruction.

Mr. BURTON. How did you know that getting these e-mails to the

relevant individuals when you knew there was a glitch, how did

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you know that was not mission critical? How did you know that?

Somebody had to tell you that.

Mr. LINDSAY. How did I know it wasn’t mission critical?

Mr. BURTON. Yes. I mean, how did you know this wasn’t a top

priority?

Mr. LINDSAY. Because we had a team of people, a Y2K team with

a Y2K administrator, who followed Federal guidelines on assessing

what mission-critical systems were.

Mr. BURTON. OK. Who was the head of that group?

Mr. LINDSAY. Terry Misich was our Y2K coordinator.

Mr. BURTON. OK. That was the Y2K coordinator. So they said—

the Y2K coordinator said that this was not a top priority, but that

the Y2K was more of a priority?

Mr. LINDSAY. I don’t have any recollection of anyone on the Y2K

team making specific reference to this particular project. The

analysis——

Mr. BURTON. OK. Then who decided that this was not a missioncritical issue, because we had the independent counsel, Mr. Starr,

we had this committee and other committees—I think Senator

Thompson’s committee—and we also had the Judiciary Committee

all subpoenaing documents, and this was a top priority for the

independent counsel and for the Congress of the United States. So

who in the White House decided this was not a top priority, a mission-critical priority?

Mr. LINDSAY. The determination of mission-critical systems was

a technical determination, as——

Mr. BURTON. Who made it?

Mr. LINDSAY. It was a collective decision.

Mr. BURTON. Well, who made it? Who was the head? Who made

the decision?

Mr. LINDSAY. Ultimately, the sign-off on the mission-critical systems as to how we went about doing it was probably done by the

director of the Office of Administration or by the assistant to the

President for management and administration.

Mr. BURTON. And who are they?

Mr. LINDSAY. One or the other.

Mr. BURTON. And who are they?

Mr. LINDSAY. Ada Posey and Virginia Apuzzo.

Mr. BURTON. OK. So those two——

Mr. LINDSAY. In terms of the approval of that list. Do not take

from the approval of that list that there was a specific——

Mr. BURTON. Well, somebody had to——

Mr. LINDSAY [continuing]. Analysis——

Mr. BURTON. Somebody had to say, ‘‘Hey, this is not something

that we want to do right now. This is more important over here.’’

And I just want to know who it was.

Mr. LINDSAY. Well, just to put it in context, sir, there were thousands of projects which existed in the Office of Administration,

technical projects.

Mr. BURTON. I understand. I understand. But who set the priorities?

Mr. LINDSAY. A combination of people.

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Mr. BURTON. You don’t get your orders from a combination of

people. You get them from somebody. Who put this down the list?

Who set the priorities?

Mr. LINDSAY. Well, I beg to differ. One of the things that we

worked on in working with our Appropriations Committee is that

when we set priorities we set those priorities collectively. They required that we make those determinations—— Mr. BURTON. You know, we don’t have a troika. We don’t have

three people running the country. We have one, a President of the

United States. He is the chief—he’s the Commander-In-Chief. He’s

the boss. Somebody—we have a chain of command. When you get

your orders, you’re getting them from somebody. And so this was

a mission-critical issue as far as the Congress and the independent

counsel was concerned, and I want to know who set the priorities.

Mr. LINDSAY. I can’t answer the question more fully than I already have, sir.

Mr. BURTON. And I don’t think you’ve answered it at all.

We’ve got documents that show that you were working on a

Christmas card list and preparing new fax cover sheets. Were those

mission critical?

Mr. LINDSAY. Y2K mission critical—— Mr. BURTON. No, no. We have got documents that we’ll be glad

to show you that show you were working on Christmas card lists

and preparing new fax cover sheets. Were those more critical than

getting these documents to the Congress?

Mr. LINDSAY. Those projects were completed—may have been

completed, in addition to many, many other critical systems. The

critical systems that are defined in the mission-critical list were

things like the e-mail system, the maintenance of our network system. Those are the kind of mission-critical systems that we—— Mr. BARR. Mr. Chairman, if I can reclaim my time, could we

get—do you have a list that shows where this particular matter fits

on the list of priorities, then?

Mr. LINDSAY. I have a list of the mission-critical systems, which

this project was not included on. I do have that.

Mr. BARR. OK. And who wrote that?

Mr. LINDSAY. It was prepared by the team of people who prepared the Y2K and prepared our Y2K—— Mr. BARR. Is there, like, a team leader?

Mr. LINDSAY [continuing]. Contractor. In addition to—I don’t

have a—I don’t know who specifically were referred to it or did it,

other than the Y2K coordinator, who was the person who I dealt

with. There were other people, including contractor people. There

were Government people.

Mr. BARR. Certainly contractor people——

Mr. LINDSAY. And they would prepare——

Mr. BARR [continuing]. Didn’t determine that this matter was not

important. I would hope that the White House wouldn’t——

Mr. LINDSAY. I could not—I cannot answer the question

more—— Mr. BARR [continuing]. Give that out to contractors.

Mr. LINDSAY [continuing]. Fully than I have already answered,

sir.

Mr. BARR. How about that specific question?

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Mr. LINDSAY. Which specific question?

Mr. BARR. Did contract people determine that this matter was

not important enough to followup on?

Mr. LINDSAY. No, sir.

Mr. BARR. OK. So you can at least answer that.

Mr. Chairman, I have never heard anything like this. Maybe you

have, but I haven’t.

Mr. BURTON. All I can say is I’m tired and we’re adjourned.

[Whereupon, at 7:43 p.m., the committee was adjourned.]

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MISSING WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS—

DAY TWO

THURSDAY, MARCH 30, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, D.C.

The committee met, pursuant to notice, at 11:30 a.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Shays, Horn, Mica, Souder,

Scarborough, LaTourette, Barr, Miller, Hutchinson, Walden, Waxman, Lantos, Norton, Cummings, Kucinich, and Davis.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Mark

Corallo, director of communications; Pablo E. Carrillo and M. Scott

Billingsley, counsels; Jason Foster and Kimberly A. Reed, investigative counsel; Kristi Remington, senior counsel; Robert Briggs,

deputy chief clerk; Robin Butler, office manager; Michael Canty,

staff assistant; Leneal Scott, computer systems manager; Lisa

Smith Arafune, chief clerk; Maria Tamburri, assistant to chief

counsel; Corinne Zaccagnini, systems administrator; Phil Schiliro,

minority staff director; Phil Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Kristin Amerling,

minority deputy chief counsel; Jon Bouker and Paul Weinberger,

minority counsels; Ellen Rayner, minority chief clerk; Earley

Green, minority assistant clerk; Andrew Su, minority research assistant; and Chris Traci, minority staff assistant.

Mr. BURTON. The committee will come to order.

I ask unanimous consent that all Members’ and witnesses’ written opening statements be included in the record and without objection so ordered.

I also ask unanimous consent that all articles, exhibits, extraneous or tabular material referred to be included in the record and

without objection so ordered.

And since this is a continuation of last week’s hearing we will

follow the same rule, starting with a half hour of questions on each

side and then going to the 5-minute rule.

As I said, we are going to continue the hearing we began last

Thursday into the White House e-mail problem. Today, we will

hear from White House Counsel Beth Nolan. And, welcome, we appreciate your patience. Because last week we anticipated having

you. Then we found out additional information about the e-mails.

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We thought it would be better to wait until this week because of

the additional information we were looking into. So we appreciate

your bearing with us.

We will also hear from Assistant Attorney General Robert Raben.

Is that pronounced correctly?

Mr. RABEN. Raben.

Mr. BURTON. Mr. Raben.

I would like to briefly review what we learned last week.

First, we heard from a panel of Northrop Grumman employees.

They operate the White House e-mail system. Two of them discovered the problem. Two and a half years worth of incoming e-mails

weren’t searched to comply with subpoenas from a number of independent counsels, our committee and others.

They were called in to a meeting with two White House officials.

Their testimony about that meeting was pretty vivid.

They all remembered that they were ordered to keep the e-mail

problem secret.

They all remembered being ordered not to tell their bosses about

it.

Several remembered being ordered not to tell their spouses about

it.

One remembered being told there would be a jail cell with his

name on it if he told anyone. Three people remembered the jail cell

comment.

One woman felt threatened enough that she risked being fired

from her job rather than tell her boss about it. She told her boss,

11I would rather be insubordinate than go to jail.’’ We then heard from the two White House officials who conducted

the meeting—Laura Crabtree, now Laura Callahan, who was in the

room; Mark Lindsay was on a speaker telephone. Miss Callahan

testified that she never threatened anyone. She said she never told

anyone they would go to jail.

Mark Lindsay couldn’t remember the phone call or the meeting

at all. He couldn’t remember a followup conversation he held with

a Northrop Grumman supervisor who was angry about the meeting. However, he was absolutely sure that he didn’t threaten or intimidate anyone.

I don’t understand how you can be so sure of what you said in

a conversation that you can’t remember, but that is his testimony.

So we have two very different accounts of the same meeting.

How do we reconcile that? The only thing we can do is look into

who has the motivation to tell the truth and who has the motivation not to.

It is clear that the Northrop Grumman employees were in an uncomfortable situation. Northrop Grumman has a contract with the

White House. They could lose that contract. The contractors have

to work with White House officials every day. If anything, they had

an incentive to soft pedal what happened, not to rock the boat.

They didn’t do that.

On the other hand, Mr. Lindsay and Mrs. Callahan are accused

of doing something that is really wrong. They are accused trying

to intimidate people who work for them. They are accused of telling

people to hide things from their supervisors. The morning of our

hearing, the Justice Department announced that they were going

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to open a criminal investigation. Mr. Lindsay and Mrs. Callahan

are potential targets of that investigation. They had every reason,

if they wanted to, to give misleading testimony or to engage in selective memory loss, which seems to be an epidemic at the White

House.

Given the fact that the Northrop Grumman contractors have no

incentive to make allegations against the people they work for and

every incentive not to make those allegations, I believe greater

weight has to be given to their testimony. I have to come to the

conclusion that their version of events is much closer to the truth.

That is where we left matters last week.

Today, we focus on another facet of this problem. In many, many

respects, it is an even more important facet. That is, when did the

White House counsel’s office find out about this mess and what did

they do about it?

Here is why that is important. Northrop Grumman isn’t responsible for complying with subpoenas to the White House. Laura Callahan and Mark Lindsay are not responsible for complying with

subpoenas. The White House counsel is responsible for complying

with the subpoenas. When the counsel’s office finds out about a

problem like this, they have an obligation. They either have to go

get the information that wasn’t searched and turn it over. Or, if

they can’t, they have an obligation to tell us and others who have

subpoenaed information like the independent counsel that there is

a problem.

The White House did not do either.

As I mentioned last week, the White House has a track record

on subpoena compliance that is not very good:

We fought with the White House for 4 months in 1997 for documents in the illegal fundraising investigation. We had to threaten

to hold the White House counsel, Mr. Ruff, in contempt to get the

documents. White House lawyers ignored their responsibility to the

Congress and to the American people.

Then in October 1997, months after they told us that we had all

of the records, the White House found hundreds of videotapes of

the President and the Vice President at fundraisers. He claimed

that it was an honest mistake.

In the White House data base investigation, they withheld a

staffer’s handwritten notes from the committee for more than a

year. Those notes indicated that the President had expressed an interest in the White House data base being compatible with a DNC

data base.

These are just a few examples of the problems that we have had

to deal with. The track record is pretty clear, complying with subpoenas is something this White House does as a matter of last resort.

The illegal fundraising investigation is just one area where we

have been affected by this problem.

We have been conducting an investigation into the Waco standoff. We subpoenaed documents from the White House. We were

never told that potentially hundreds of thousands of incoming emails were not searched for information on Waco.

We conducted an investigation into the President’s decision to

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poenas to the White House for documents. I want to read you a

paragraph from the response that we received from the White

House, ‘‘we have been in the process of searching archived e-mails

for materials responsive to the committee’s subpoena. Enclosed

please find the responsive documents.’’

That was last October. The White House counsel’s office had

known about the e-mail problem for more than a year when we got

that memo, and they didn’t tell us.

Why wasn’t this committee ever informed that 21⁄2 years of incoming e-mails were never searched? Was the Justice Department

informed? Were the various independent counsels informed? Those

are questions that we want to address at today’s hearing.

We know that high-level White House officials were informed

about the problem almost immediately.

On June 19, 1998, the deputy chief of staff, John Podesta, and

the White House counsel, Charles Ruff, got a memo. It explained

the problem in detail.

The same day, June 19th, Mark Lindsay apparently met with

Mr. Ruff and Cheryl Mills, the President’s top two lawyers, to explain the problem.

Just 1 day before that, one of the Northrop Grumman contractors

prepared an estimate, 246,000 of the more than 1.3 million e-mails

that were on the server had not been archived. That is nearly one

in five.

I have had a chance to review Ms. Nolan’s testimony. She states

that Mr. Ruff was notified of the problem but that he never understood the full extent of the problem.

The President’s counsel never understood the full extent of the

problem? I seriously doubt that explanation. This issue isn’t very

complicated. There is a huge body of information that, to this date,

has never been reviewed. If documents are withheld once, we can

try to understand. If it occurs twice, you have justifiable doubts.

But when it happens over and over again, and not just here but

with the independent counsels and Senator Thompson, you start to

get a little skeptical.

In addition, the selective memory loss that almost every witness

has when they come before this committee from the White House

also causes doubts.

Mr. Ruff had no intention of turning documents over to us in

1997 until we forced him to by starting to move a contempt citation.

Mr. Ruff and his staff told us that they had no idea that there

were hundreds of videotapes of the President at fundraisers—even

though his staff had drafted memos on the subject. They didn’t

know about it, but they had already drafted memos on the subject.

Now we are being told although that Mr. Ruff knew about the

e-mail problem he did not fully understand it. With all those subpoenas coming in for all this information, all this evidence to the

White House counsel and he didn’t understand it? It would be easier to believe that if the White House had a better track record.

Ms. Nolan didn’t become White House counsel until August 1999.

In her statement, she says that she wasn’t informed until January.

She lays out the timeline of when she informed various agencies

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conducting investigations. I want to tell you it bothers me about

this sequence of events.

On March 7th, my staff interviewed the Northrop- Grumman

contractors.

On March 8th, I wrote to Ms. Nolan to ask her why we had

never been informed of this problem. I also wrote to Attorney General Reno to ask her why the Justice Department had not looked

into it.

On March 10th, 2 days later, the Justice Department called the

White House to ask them what was going on with the e-mails.

On March 15th, the White House counsel’s office provided an explanation to the independent counsel’s office.

On March 20th, the White House gave the Justice Department

a written explanation.

The White House first discovered this problem in June 1998. The

Justice Department has known about it for some time. They have

been representing the White House in the Filegate lawsuit. It was

on the front page of the Washington Times in February. Yet nobody seems to do anything around this town until our committee

starts interviewing people and writing letters.

That is just wrong. I shouldn’t have to embarrass people to get

them to do their jobs.

This is almost the same thing that happened with the Justice

Department’s interviews of the President and the Vice President.

We had to force the Justice Department to turn those interviews

over to us. If we had not done that, nobody would have known that

they never asked the President or the Vice President one single

question about their foreign money contacts.

Two years ago, FBI Director Louis Freeh and prosecutor Charles

LaBella tried to get the Attorney General to appoint an independent counsel for the illegal fundraising investigation. They both

wrote long memos to Janet Reno. Those memos practically predict

this e-mail mess that we now have.

Director Freeh and Mr. LaBella both understood that the Attorney General had too many conflicts to investigate her boss and

other top aides and people at the White House. They both understood that the Justice Department would not be aggressive in pursuing evidence from the White House. And that is exactly what has

come to pass.

One of the most amazing things to me is that the Justice Department is on both sides—both sides of this e-mail issue. The Civil Division is representing the White House in the Filegate lawsuit.

They are working with the White House to delay production of the

e-mails. The Campaign Finance Task Force, which has always been

a paper tiger, is now investigating whether obstruction of justice

has occurred.

It is pretty likely that the Justice Department will have to investigate its own conduct in covering up these e-mails.

Today, I sent a criminal referral to the Justice Department about

possible perjury committed by Daniel Barry, a White House staffer

who testified before the committee last week. In July 1999, Mr.

Barry filed an affidavit, sworn affidavit in the Filegate civil suit.

In that affidavit, he stated that the White House e-mails were

archived in the ARMS system. He did not say anything about the

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Mail2 problem, even though he had known about it for over a year.

That is perjury.

The worst part of it is that Mr. Barry’s affidavit was prepared

by lawyers from the Justice Department and the White House.

They were representing him at the time. They may have known

that the affidavit was false and allowed Mr. Barry to sign it and

submit it to the court. That conduct should be investigated as well

so we can find out whether there was a criminal conspiracy to provide false testimony to a Federal court and cover up this problem.

You know, on a personal note, it makes me sick to think how Mr.

Barry was used by the White House and the Justice Department.

I don’t think he is a bad person, but now he is in a lot of trouble.

I wonder if anyone even cares in this White House or the Justice

Department.

The problem is that the Justice Department cannot be expected

to investigate these charges. They would be investigating potential

criminal conduct by their own lawyers. It is just one more example

of why the Attorney General needs to appoint a special counsel who

is truly independent.

It is an intolerable situation. The Attorney General should have

listened to Mr. Freeh and Mr. LaBella 2 years ago. She should

have appointed an independent counsel. If she had, maybe the

President would have been asked at least a few questions about the

finance scandal, the campaign finance scandal, about James Riady,

John Huang or Charlie Trie. Maybe the Vice President would have

been at least asked a few questions about the Hsi Lai Temple.

Well, the independent counsel law has now expired, and the only

alternative is for the Attorney General to appoint a special counsel.

However, the least she can do is appoint this special counsel to get

to the bottom of the e-mail mess. I have called on her to do so.

I ask unanimous consent to place my correspondence with the

Attorney General about this matter into the record at the conclusion of my statement.

The Justice Department can’t be on both sides of this issue. It

is fairly clear that the Department is not going to be aggressive in

pursuing these e-mails from the White House. The only answer is

to appoint a special counsel to do the job. In the next few days, I

am going to introduce a resolution on the House floor calling for

a special counsel. I invite all of my colleagues to be cosponsors.

Mr. Raben is here from the Justice Department. We are going to

be asking Mr. Raben some questions about when the Justice Department first learned about the missing e-mails. We are going to

ask what has been done about it. We are going to ask for an explanation of how the Justice Department can possibly be on both sides

of this conflict.

Mr. Raben, I hope you will be candid with us and give us as

much information as possible. I want to thank you and Ms. Nolan

both for being here.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. BURTON. I now recognize Mr. Waxman for his opening statement.

Mr. WAXMAN. Mr. Chairman, I want to welcome Beth Nolan and

Robert Raben to today’s hearing, and I am looking forward to hearing their testimony.

Last week’s hearing was instructive. We learned that no one in

the White House had any role in developing the message retrieval

system. We also learned that no one in the White House asked that

any e-mail messages be excluded from the system. And that before

June 1998, no senior officials in the White House even knew that

some e-mail messages were being excluded from the retrieval system.

By June 1998, however, senior White House officials were informed that a computer glitch existed. It is important for Ms.

Nolan to provide information on how senior officials reacted to this

information. Did anyone at the White House try to keep any information from investigators or was there simply a misunderstanding

between computer technicians and White House lawyers? Deliberate concealment would seem to be a case of obstruction of justice.

Honest confusion, on the other hand, would be regrettable but understandable. Until we know the facts, we should be careful about

making unsubstantiated allegations.

There is, unfortunately, already a need to clarify several important points. During last week’s hearing, a significant amount of

time was focused on the question of whether Northrop Grumman

employees were threatened with jail. Mrs. Callahan denied ever

making the threat.

But let’s put that denial aside for the moment. Let’s just look at

the testimony of the five employees.

Mr. Haas, who seemed credible to me, clearly believed he had

been threatened with jail by Mrs. Callahan. He told us that, in a

meeting with Mrs. Callahan and his four coworkers, he flippantly

asked what would happen if he discussed the computer glitch with

others. He remembers Mrs. Callahan warning him that, ‘‘there

would be a jail cell with his name on it.’’

Betty Lambuth agreed with Mr. Haas’s recollection and added

that in a second meeting she had with Mark Lindsay and Paulette

Cichon a second threat by Mr. Lindsay was made.

Sandra Golas initially testified that, while she remembered the

word jail being used in the meeting, she couldn’t remember who

said it. But she later said she did feel threatened and thought jail

was a real possibility.

Yiman Salim and John Spriggs, both of whom were in the meeting and both of whom seemed credible, have no memory of jail ever

being discussed. Miss Salim testified that she never felt threatened, and both said they believe Mrs. Callahan acted reasonably

under the circumstances. As I said, I am putting aside Mrs. Callahan’s denial regarding the threat.

In reviewing last week’s testimony of just the five Northrop

Grumman employees, I am not comfortable in reaching any conclusion on whether a threat was made. There is a very real conflict

between credible witnesses—Mr. Haas, Ms. Salim, Mr. Spriggs—

that I think it makes it irresponsible to issue final judgments about

what happened.

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Miss Lambuth also testified that in a second meeting with Mark

Lindsay and Paulette Cichon Mr. Lindsay told her that if she discussed the e-mail problem with anyone, she would lose her job and

be arrested. But I have a signed statement from Ms. Cichon who

was in that meeting, and Ms. Cichon says that never happened.

In fact, Ms. Cichon says that, ‘‘at no time during this meeting did

I perceive Mark threaten Betty or myself. At no time was a threat

of jail mentioned or any other threat. If any threat were made, I

would have certainly remembered it, and I would have taken the

appropriate action in response.’’ I should point out that Ms. Cichon has spent almost all of her

career in the private sector and no longer works in the White

House.

Well, also at last week’s hearing Miss Lambuth testified that the

missing e-mails contained information relating to the FBI files,

Monica Lewinsky and the campaign finance investigation. How did

she know that? Well, she said she was told this by Bob Haas. But

Mr. Haas, who was at the table, was asked whether he said that,

and he said he didn’t. And I want to show a tape about what they

said.

[Videotape played.]

Mr. WAXMAN. Well, I am not finished, Mr. Chairman. I do want

to complete my statement.

I wanted to show that videotape because we had a clear contradiction in testimony. In fact, we had a clear contradiction in testimony with Miss Lambuth on three separate issues where she testified one way and others testified that she was wrong.

She said that she knew the content of these e-mails, and she said

she knew them because of Mr. Haas. Mr. Haas said that he never

told her.

She said that Mr. Hawkins had one version of her employment

status. Mr. Hawkins denied that.

And we also have this contradiction now today with Miss Cichon

making a statement about how she was wrong about saying there

were second threats.

The point I am making is we have a conflict in testimony. And

I was struck by the fact the chairman has asked for a criminal indictment against Mr. Barry for his statements which didn’t go as

far as one would have wanted him to go in describing the 1994 reconstruction status of the ARMS system.

But I looked at his affidavit, and I think if you look at it in context, it seems to me to say that there ought to be a referral of

criminal charges for that affidavit is not a level way to treat witnesses who may have said things that may have been false. Statements are often false. Whether they are intentionally false is another issue.

And I would be shocked if the chairman would say that Miss

Lambuth ought to have a criminal prosecution against her false

statements made to us. If we are going to accuse people of crimes,

do it for everybody who says something false, not just those who

don’t say things that fit in with the theory that we want to advance.

Yesterday, there was a front-page news story that claimed that

the White House withheld the Monica Lewinsky e-mails that were

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discovered in 1998. I believe that story is likely wrong. When Mr.

Haas discovered the missing e-mails in 1998, they were compared

to the e-mails that had already been given to the independent

counsel. It is my understanding that the comparison indicated that

what was discovered had previously been provided to Mr. Starr.

Well, good investigators find the facts first and reach conclusions

later. That should be our standard, and it should be our objective

today.

Mr. Chairman, I want to ask unanimous consent to put the statement by Paulette Cichon in the record.

[The information referred to follows:]

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Mr. BURTON. Without objection, so ordered.

Does that conclude your opening remarks?

Mr. WAXMAN. That concludes my opening comments.

Mr. BURTON. We will now welcome our panel to the witness

table: Beth Nolan and Robert Raben. I got that right.

Please stand and raise your right hands, please.

[Witnesses sworn.]

Mr. BURTON. Be seated. Thank you.

Ms. Nolan, you’re now recognized, if you so desire, to make an

opening statement.

STATEMENTS OF BETH NOLAN, COUNSEL TO THE PRESIDENT;

AND ROBERT RABEN, ASSISTANT ATTORNEY GENERAL FOR

LEGISLATIVE AFFAIRS

Ms. NOLAN. Thank you, Mr. Chairman.

Mr. Chairman, Congressman Waxman, members of the committee, my name is Beth Nolan. I am counsel to the President of the

United States. I have held this position since September 1999. I appear today to address the e-mail system used by the Executive Office of the President.

As you know, last Thursday, I submitted a written statement in

anticipation of my scheduled appearance for that day. I ask that

it be made part of the record.

As I explained in that statement, my staff and I have devoted a

large part of the past several weeks trying to understand these

issues, in gathering information to help us understand the matter

and how to address it. We have been learning additional information about these matters almost every day.

Although the new information assists us in better understanding

the problem, it can alter previous assumptions, determinations and

conclusions. Therefore, although we have learned more about this

matter over the past several weeks, we are still reviewing issues,

exploring certain remedies, and probing some outstanding questions.

For these reasons, I want to emphasize that my testimony today

is based on my current understanding of the information that we

have gathered in the course of our initial review. As our review

progresses to completion, we will likely uncover information that

alters or amends these preliminary conclusions. Indeed, in 1 week

I have learned additional information since I submitted my statement, and I want to update that statement as follows.

First, the Office of Administration has informed me that it has

contracted with a private entity to provide the technical expertise

and resources necessary to restore the back-up tapes to an easily

searchable form. The contractor’s preliminary estimate—and I

want to emphasize preliminary because these estimates are subject

to amendment as the process proceeds and the contractor learns

new information—the preliminary estimate suggests that the requisite equipment and other resources for the project will be in

place, tested, and ready to go in approximately 70 days. We anticipate conducting the restoration in batches so that we can have a

rolling production. The contractor estimates that this part will be

completed in about 170 days from the beginning of the project. In

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other words, if what—if these initial estimates hold up, we could

have the back-up tapes searched within 6 months.

Finally, the contract also calls for independent validation and

verification, which means that a completely different private contractor will come in and certify that this project is proceeding in

a timely and cost-effective manner.

Second, I would like to address media reports yesterday of a socalled zip disk and the suggestion that the disk contains previously

undisclosed e-mail messages. Those reports were confusing and

misleading.

As Northrop Grumman employee Robert Haas told the committee last week, in June 1998, he conducted a search of e-mail accounts for Lewinsky-related materials. Mr. Haas gave the results

of that search to his superiors who ultimately turned them over to

the White House counsel’s office which determined that these emails were duplicative of ones that had already been produced. At

the same time, Mr. Haas saved the results of his search on a file

of the F drive of his computer. The zip disk, which, as I understand

it, is a computer disk and able to hold more information than a regular diskette, referenced in yesterday’s press is simply a copy of the

file maintained on Mr. Haas’s computer. The data on the disk was

neither newly discovered nor previously undisclosed.

Third, last week I stated that I instructed Security Officer

Charles Easley to conduct a review of the allegations of threats. In

light of the Department of Justice’s announcement that the Campaign Finance Task Force will be conducting a criminal investigation of this matter, I have instructed Security Officer Easley to

postpone any review of this matter until further notice so that we

can ensure that we do not interfere with that investigation.

Fourth, I stated last week that there were approximately 550

back-up tapes from the Office of the Vice President. Security Officer Easley has indexed the OVP back-up tapes from IS&T, and I

am informed now that the total number of OVP tapes is approximately 625.

Fifth, I stated last week that 28 other accounts within the Office

of the Vice President have not been managed by ARMS, the Automated Records Management System. We now believe that there

were only 24 such accounts, all but three of which were created before 1997.

Since last week, IS&T has ensured that all 24 accounts, including the Vice President’s, are now being ARMS managed.

Finally, IS&T has not yet been able to correct the problem that

incoming e-mail to the OVP is not being captured by ARMS. So I

want to make clear that the accounts are all being ARMS managed

for e-mail being created in the Office of the Vice President, but incoming e-mail is not being ARMS managed. They are working to

make that happen as quickly as possible. In the meantime, the

counsel to the Vice President has instructed OVP staff to retain incoming e-mails other than purely personal e-mail on their servers,

their individual servers.

I now want to emphasize the following points.I21The computer

glitches that occurred with the Mail2 and letter D problems are the

result of unintentional human error associated with an extraordinary electronic records archiving system. No one attempted to

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hide responsive information from this committee or from any other

investigative body. The EOP has produced or identified to this committee all responsive information that it located, including over

7,700 pages of e-mail records in the campaign finance investigation

alone.

Until recently, the counsel’s office was not aware of the scope

and nature of these errors. In June 1998, the counsel’s office

thought the error was isolated to one search and had subsequently

been fixed. That is, the counsel’s office knew about a possible problem but not the problems that we now are talking about and understand. The counsel’s office had no reason to believe that this

error had any effect on its searches. Had it thought otherwise, it

would have addressed the problem.

The back-up tapes of e-mail records are secure. As I mentioned

earlier, we have already begun the process that will enable us to

search these records, and we will do so as quickly as possible.

Mr. Chairman thank you for the opportunity to address this committee.

Mr. BURTON. Thank you, Ms. Nolan.

[The prepared statement of Ms. Nolan follows:]

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Mr. BURTON. Mr. Raben.

Mr. RABEN. I don’t have an opening statement, sir.

Mr. BURTON. No opening statement. We will get right to the

questions.

First of all, let me make a real quick statement.

I still find it very difficult to understand or believe that after the

Northrop Grumman employees brought to the attention of their supervisors and the people at the White House that there was this

glitch that there wasn’t a very thorough search of the incoming emails. You indicated that they thought they had covered it. But the

fact is there were subpoenas from a number of independent counsels, our committee, and everyone at the White House knew about

the campaign finance investigation, the Lewinsky matter and the

other issues; and it seems to me that there would have been every

effort made to make absolutely sure that a thorough—very thorough search was done. And if it was brought to the attention of

people at the White House by the Northrop Grumman people that

this glitch did occur, then it seems to me that the extent of the

search into the missing e-mails would have been much more thorough than it was.

Now, let me just ask you a few questions.

First of all, 2 days ago, when he was asked about my call for a

special counsel to investigate the e-mail matter, White House

spokesman Joe Lockhart said,

I think the Justice Department will have to make that decision. I will only remind

people that, you know, Dan Burton asking for an outside counsel or a special counsel is like the sun coming up in the morning. It happens, you know, once a week

or once a month. And you all will have to remember all of the pressing issues that

he called for outside counsels on and what came with of them.

Mr. Lockhart seems to be indicating that the President does not

think that this is a very serious matter. Is that the President’s position?

Ms. NOLAN. Mr. Chairman, the President has asked me to make

sure that we can get these searched as quickly as possible. And

that is what we are doing. He takes that very seriously.

Mr. BURTON. Let me ask you a question. Since Mr. Lockhart

made that statement, do you know how many times that I have

called for an independent counsel? He said it is kind of like the sun

coming up every morning. Do you have any idea?

Ms. NOLAN. Mr. Chairman, I did not make that statement. I do

not have any idea.

Mr. BURTON. Just so Mr. Lockhart and the American people have

the facts, I have only called for an independent counsel twice, not

every morning when the sun comes up. And one has not been appointed for campaign financing and the e-mail problem. And I am

in pretty good company because the Director of the FBI and Chuck

LaBella also thought there should be independent counsels for the

campaign finance investigation.

I would like to call up exhibit—well I would like to say one more

thing. He also has said that we issued 700 subpoenas to the White

House, and that is only off by 670. We have issued 30 subpoenas

to the White House, not 700.

Would you put up exhibit No. 56? Is that on the form there? This

is an affidavit. Do you have a copy of that, Ms. Nolan?

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Ms. NOLAN. What is it, sir?

Mr. BURTON. It is an affidavit that was submitted in court in

July 1999 by Daniel Barry, a White House employee.

Ms. NOLAN. I do have a copy.

Mr. BURTON. Did lawyers from the White House counsel’s office

assist in the preparation of that affidavit?

Ms. NOLAN. Mr. Chairman, I know that lawyers from the White

House counsel’s office would have been working with the lawyers

of the Department of Justice on this matter. I don’t know if they

assisted in the preparation of this particular affidavit.

Mr. BURTON. Well, we have been informed that they did. And if

could you check on that, I would appreciate it.

Ms. NOLAN. Certainly.

Mr. BURTON. You don’t have any idea which lawyers from the

White House were involved then.

Ms. NOLAN. Mr. Chairman, I know that a couple of lawyers have

worked on this matter before. As I said, I don’t know the specifics

of this affidavit.

Mr. BURTON. Could you give me the names of the ones that you

think—— Ms. NOLAN. Yes. I believe Sally Paxton worked on this matter at

some point and Michelle Peterson.

Mr. BURTON. Michelle Peterson was one that we had information

that had been involved.

Mr. Raben, did lawyers from the Justice Department assist in

the preparation of that affidavit?

Mr. RABEN. I don’t know, sir.

Mr. BURTON. You don’t know. Could you find out for us?

Mr. RABEN. Absolutely.

Mr. BURTON. We were told that Justice Department Civil Division lawyers were involved, and we have been informed that James

Gilligan was the main DOJ lawyer, and we would like for to you

double-check that.

Mr. RABEN. I will find out, sir.

Mr. BURTON. Ms. Nolan, at the time that this affidavit was prepared in July 1999, the counsel’s office knew about the e-mail problem, didn’t they?

Ms. NOLAN. As I just testified, no. I do not believe that. At least

when you talk about the e-mail problem—if you mean the problem

that we all know about and are talking about today, no.

Mr. BURTON. Well, they knew that the people from Northrop

Grumman had informed Ms. Lindsay and Ms. Crabtree and that

had been kicked up to Mr. Podesta. Did you not know that?

Ms. NOLAN. It is my understanding, Mr. Burton—and, of course,

I wasn’t there, so this is my understanding—that Charles Ruff,

then counsel to the President, knew or had been informed that

there had been some kind of problem with an e-mail search, that

a subsequent search was conducted in order to see if the e-mails

had been missed, that that production was provided to the counsel’s office which compared it against e-mails it had already produced and determined that there had not, in fact, been any missing

e-mails.

Mr. BURTON. Well, but the point is, they did know there was an

e-mail problem.

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Ms. NOLAN. They knew that there had been a glitch which apparently had been fixed. They did not know that there was any ongoing or larger e-mail problem, as far as I understand, sir.

Mr. BURTON. Mr. Raben, at this time, in July 1999, the Justice

Department Civil Division lawyers knew there was an e-mail problem, didn’t they?

Mr. RABEN. I don’t know, sir. I don’t know precisely when the

Department or Civil Division attorneys learned about it.

Mr. BURTON. Were you briefed about any of the questions that

we might be asking or any of the information we might be seeking

before you came up here? Because the first few questions we have

asked you don’t have any idea what we are talking—or don’t have

any answers.

Mr. RABEN. I read your—I read the statement that you delivered

last week where you indicated what you would be asking me, and

I read a news account, and I saw what you would be asking me.

Mr. BURTON. This was one of the questions that—I mean, it was

pretty apparent that we would be asking you if the Justice Department knew about the e-mail problem in July 1999. And you say

you don’t know?

Mr. RABEN. July 1999?

Mr. BURTON. Yes.

Mr. RABEN. Yes, I said I didn’t know. You asked about July 1998.

But I don’t have the facts, and I know that that is the subject of

an inquiry right now at the Department of Justice, about exactly

what we knew when.

Mr. BURTON. I am disappointed that, you know, that the Justice

Department, since this is a very serious matter, didn’t work with

you and prepare you more for the testimony that you’re giving

today. It is inconceivable that you would come up here when you’re

asking these questions that are extremely important and not have

any of the answers.

Ms. Nolan, paragraph 4 of the affidavit states, and you have that

in front of you, since July 14, 1994, e-mail within the EOP system

administered by the Office of Administration has been archived

into the EOP Automated Records Management System, the ARMS

system. This statement is not true, is it? It is false.

Ms. NOLAN. Mr. Chairman, could you explain to me why you

think it is false?

Mr. BURTON. Well, I think the question pretty much speaks for

itself. I’ll read it to you again. Since July 14th, 1994, e-mail within

the EOP system administered by the Office of Administration has

been archived in the EOP Automated Records Management System. Now, it hasn’t been, has it?

Ms. NOLAN. Mr. Chairman——

Mr. BURTON. Has it been archived in that system?

Ms. NOLAN [continuing]. E-mail was archived. It turned out that

some e-mail was not captured, but e-mail was archived, yes.

Mr. Chairman, may I say something about this affidavit, please,

if we are going to talk about it?

Mr. BURTON. Sure.

Ms. NOLAN. It is my understanding that this affidavit was filed

to explain what would be done, what the time and cost would be

involved for searching records regarding this case, which was with

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respect to the FBI files matter. The important or relevant information was how the system was set up, how long it would take and,

as I understand it, they were particularly thinking about the reconstructed e-mail because the activity that had occurred with respect

to the FBI files was in 1993 and 1994. So, I just want to make that

clear what this was about. This was not an affidavit saying—from

Tony Barry saying we have produced all the e-mail or all e-mail is

captured. It was describing the system for a potential e-mail

search.

Mr. BURTON. You know, you can give that explanation. But that

is not what the affidavit says, is it? I mean, you’ve got the affidavit

in front of you. You know what it says. It doesn’t say that.

Mr. BARR. Mr. Chairman, could I indulge you just a moment? I

want to make absolutely certain. Because, as the witness was offering this explanation for—— Mr. BURTON. I yield to the gentleman.

Mr. BARR [continuing]. The false statements in the affidavit, citing a legal theory that is unfamiliar to me as an attorney and a

former U.S. Attorney, that the context in which an affidavit is providing—is provided can override that it might be perjurious—I

want to make sure we are talking about the same affidavit.

We are talking, I believe, about the affidavit signed by Dave A.

Barry on July 9, 1999, in which just above the date and his signature the statement appears, ‘‘I declare under penalty of perjury

that the foregoing is true and correct.’’ Is the witness talking about

another affidavit that has some sort of limiting language in it?

Mr. BURTON. No, she’s talking about the same affidavit. That is

the same affidavit, isn’t it?

Ms. NOLAN. I asked if I could give you some context. I never said

I was providing a legal theory. I asked if I could give you some context to explain the affidavit. That is what I just did.

Mr. BURTON. Yes, ma’am. We will get back to you—I’ll get back

to you with further questions.

I’ll yield to Mr. Shays.

Mr. SHAYS. Good morning. I would like to make reference to your

closing.

You said, Ms. Nolan, in closing, I want to emphasize the following points: ‘‘the computer glitch is the result of unintentional

human error associated with an extraordinary electronic records

archiving system.’’ Even if we agreed with that, you then said, ‘‘No one attempted

to hide responsive information from this committee or any other investigative body.’’ What gives you the capability to make that claim?

Ms. NOLAN. I have tried to make clear that I am saying, based

on what I have learned and the people that my office has talked

to, I have found no indication that the counsel’s office was aware

that there was an ongoing problem or that anyone sought to provide such—to hide any such information. And, in fact, I believe

that several of the contractors said that last week as well.

Mr. SHAYS. Bottom line is, before you were there these events

took place, and then you make an assumption and tell the committee that no one attempted to hide responsive information as far as

you know.

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Ms. NOLAN. It is not an assumption. It is based on the information I have gathered. And, as I said, I am only able to report what

I have gathered and what I have learned up to date.

Mr. SHAYS. Would you put exhibits 3 and 4 up, please?

I just want to ask what the second-to-last paragraph means,

where it says, ‘‘For all of the categories of e-mail, including ongoing

Internet e-mail and e-mail between the EOP users, the system appears to have functioned as intended. Thus, e-mails in these categories’’—and then the parenthesis—‘‘other than those that were

specifically identified by EOP centers as nonrecords.’’

What does that mean?

Ms. NOLAN. What part of it, sir? I am sorry.

Mr. SHAYS. Just the parentheses. What are nonrecords?

Ms. NOLAN. When an EOP user sends an e-mail, he or she may

indicate that it is a nonrecord e-mail. It is not a Presidential record

or a Federal record. If I were to send an e-mail to my mother saying I’ll see you next week, that is not a Presidential record. I can

indicate it is a nonrecord.

Mr. SHAYS. If you bring the letter down, just read up in the top,

it is from Ginnie, I guess, Virginia Apuzzo wrote this memo. It was

to John Podesta who was then deputy chief of staff. And it was informing—it was informing him of this problem. And would you just

tell me who the signature—that is Ginnie. Who is Chuck? Is that

Charles Ruff?

Ms. NOLAN. I believe so, sir.

Mr. SHAYS. What was the response? Do I make the assumption—

what was the response to the White House counsel’s office once it

was informed of the problem?

Ms. NOLAN. My understanding is that Mr. Ruff discussed the

matter with Mr. Lindsay, that he understood that it was a problem

with a particular e-mail search, that OA through IS&T ran a

search which it turned out was a duplicate search of the server,

produced those documents, turned out that if there had been a

problem it was fixed. In any event, there were no documents that

hadn’t already been found and produced.

Mr. SHAYS. Now we are talking about the Mail2 configuration

issue. That is a 2 year and 3 month gap. I call it just a bottomless

pit in which e-mails got relatively lost or couldn’t identify. And

then letter D configuration I shall use. What is GRS information

technology operations and management records? What are you implying there? Was there a third problem?

Ms. NOLAN. What am I implying where, sir?

Mr. SHAYS. We have a Mail2. We have a problem with letter D.

Do we have another problem in addition?

Ms. NOLAN. Are you referring to the memo or——

Mr. SHAYS. I am referring to this document right here that accompanied your presentation.

Ms. NOLAN. That is something that a briefing that the Office of

Administration——

Mr. SHAYS. Were there three problems or two?

Ms. NOLAN. I don’t believe—that was a reference to how e-mail

records are going to be stored generally throughout government

and archives.

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Mr. SHAYS. The Mail2 configuration is 2 years and 3 months, and

the letter D configuration problem was 7 months. Do I make an assumption that we are talking about over 246,000 e-mails?

Ms. NOLAN. I don’t know how many e-mails there are. We know

what they are incoming e-mails from the—from outside the complex into the EOP.

Mr. SHAYS. Is it at least 246,000?

Ms. NOLAN. I don’t know, sir.

Mr. SHAYS. Would you look at page 6 in your testimony? You provided us this document here.

Ms. NOLAN. I am sorry, what is that?

Mr. SHAYS. Exhibit 62. OK. It was provided by Northrop Grumman, and the number—this is Northrop Grumman’s document, and

it is 246,000 e-mails.

Let me just go on. I want to know if you or anyone else discussed

this issue with Mr. Ruff and what did he say?

[Exhibit 62 follows:]

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Ms. NOLAN. I did discuss it with Mr. Ruff. I also believe other

attorneys in my office discussed it with him.

Mr. SHAYS. And when did you do that?

Ms. NOLAN. Pardon?

Mr. SHAYS. When?

Ms. NOLAN. Attorneys in my office discussed it with Mr. Ruff, I

would guess, about a month ago. I discussed it with him last week

or the week before.

Mr. SHAYS. Since learning of the e-mail problem in the summer

of 1998, has the White House informed the Justice Department of

the problem?

Ms. NOLAN. As far as I am aware, the White House—the White

House counsel’s office informed the Justice Department when we

provided information to the Justice Department Campaign Finance

Task Force.

Mr. SHAYS. And when was that?

Ms. NOLAN. In March of this year.

Mr. SHAYS. Has the White House informed any of the independent counsels of the problem.

Ms. NOLAN. We’ve had discussions with several independent

counsel offices, yes, sir.

Mr. SHAYS. And who are they?

Ms. NOLAN. Mr. Ray and Mr. Lancaster.

Mr. SHAYS. And when did you have discussions with them?

Ms. NOLAN. February or March of this year.

Mr. SHAYS. You can’t be more precise than that?

Ms. NOLAN. I spoke with Mr. Ray’s deputy the first week that

I was aware of this problem. I think lawyers in my office spoke

with Mr. Lancaster’s office a couple of weeks later. I don’t—I don’t

have the exact date.

We provided a written explanation to Mr. Ray’s office on March

15th.

Mr. SHAYS. The e-mail problem was discovered in the summer of

1998 at the height of the independent counsel’s investigation of the

President. The problem was kept from the independent counsel

during his investigation. Similarly, it was kept from the Congress

during the impeachment debate.

Did anyone in the White House think that the e-mail problem

could have real relevance to either the independent counsel’s investigation or the impeachment investigation?

Ms. NOLAN. I want to make clear that as far as I know no one

kept the information from anyone in the counsel’s office. The independent counsel’s office did not understand that there was a problem that needed to be reported. The one possible problem the counsel’s office understood, they got a second search from the Office of

Administration, which showed that everything had been produced,

and therefore, Mr. Ruff did not believe there was anything he needed to notify any investigative body of.

Mr. SHAYS. In your statement, you draw conclusions that everything is all right, and it seems to me that you give yourself the

benefit of the doubt in every instance. So when you say, when the

counsel to the President, Charles Ruff, was told by OA in 1998 that

there were e-mails that may not have been captured in a previous

search because of technical glitches, he understood that OA would

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be collecting these e-mails so that any responsive e-mail that had

not been produced could be produced.

And then you say, thus, as Mr. Ruff understood the technical

problem at the time, he did not think that the error had any effect

on previous searches or that it might affect future searches of email records. As a result, Mr. Ruff had no reason to believe there

was any need to notify investigative bodies of this error.

What would have given him the reason to believe that?

Ms. NOLAN. I am reporting what Mr. Ruff has told me, and I

think that he did not understand, I believe, what was communicated to him or what he understood. Whether it was a disconnect

between the technical people, who understood a much more complex problem, and the lawyers, I cannot tell you exactly why.

What I can tell you is, what he understood was that there was

a small—there may have been a problem, that it was fixed, there

was no ongoing problem, there had been no documents not produced.

Mr. BURTON. Let me interrupt. We’ll get back to you.

I want to give the balance of my time to Mr. LaTourette, and

we’ll get back to you, Mr. Shays, in a little bit.

Mr. LATOURETTE. Thank you, Mr. Chairman.

Good morning, Ms. Nolan, I have a series of questions that I’ll

attempt to ask without getting on Mr. Waxman’s highlight reel

today.

We had the opportunity to have the hearing last week, and a

number on our first panel told us about the e-mail difficulty, and

also, although there were some conflicts between witnesses and

their recollections, they did pretty universally indicate that they

had been told to keep this in house, quiet, not spread it around,

the problem that there was a mail through the server, and eventually then the D-mail server.

Did the Office of Administration ever consult, to your knowledge,

with the White House counsel’s office about these instructions, this

wasn’t something to be discussed with others?

Ms. NOLAN. I have never heard anything that would suggest that

was the case.

Mr. LATOURETTE. Second, something of the contractors from NG last week talked about the threats of going to jail, losing their

jobs, losing their security clearances, all things that were of obvious

concern to them.

From your position at the White House as the White House counsel, would White House personnel have any basis for making those

statements if, in fact, they were made?

Ms. NOLAN. Would White House counsel have——

Mr. LATOURETTE. No, would White House personnel. In other

words, we are talking about Ms. Callahan in particular.

The allegation was, she said there’s a jail cell with your name

waiting on it. Is there any basis in law for that type of threat if—

and I understand that she denied it—but is there any basis that

you’re aware of to send someone to jail for, for instance, talking to

their wife about this problem? Is it a breach of some sort of national security?

Ms. NOLAN. I am not aware of any.

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Mr. LATOURETTE. And I’m wondering now, as I understand the

explanation that you’ve received from Mr. Ruff, I guess he had a

meeting with Mr. Lindsay, and you’re saying that Mr. Lindsay did

not adequately explain it to Mr. Ruff, or explain it to Mr. Ruff in

a way that he understood that this was a two-part process—one,

that the stuff wasn’t being captured and once you fix that problem

you had to restore the stuff that hadn’t been captured for over 2

years.

Is that what Mr. Ruff is telling you and, hence, us?

Ms. NOLAN. What Mr. Ruff told me was that he understood there

was a problem, but it was a problem with one search, a search. He

did not understand that there was a more systemic problem.

Mr. LATOURETTE. Last week Mr. Lindsay was here. He pretty

clearly understands it. He knows that it was a two-part thing, one,

that e-mails coming into the White House weren’t captured. He worked real hard, and I think spent $600,000 to fix that problem.

He also knew and continues to know that there is this whole body

of e-mails, 100,000, 200-—it doesn’t matter how many there are— that haven’t been loaded onto the ARMs system.

Are you saying Mr. Ruff of the White House counsel’s office had

no comprehension that there’s a series of e-mails out there somewhere that haven’t been reconstructed to this day?

Ms. NOLAN. I know it now.

Mr. LATOURETTE. But what about Mr. Ruff, during the time we

were asking him for documents? He’s saying he just doesn’t know?

Ms. NOLAN. That’s right.

Mr. LATOURETTE. My historical recollection is that Mr. Ruff, I

think was a prosecutor during Watergate, and I think he knew a

lot about tape records and 181⁄2-minute gaps, but maybe hasn’t sort

of fast-forwarded to the computer age. And that brings me to the

Vice President of the United States.

Your statement also talks about the fact that the Office of the

Vice President wasn’t typed into the ARMS system. Is that right?

Ms. NOLAN. That’s right. The Office of the Vice President was

not fully tied into the ARMS system.

Mr. LATOURETTE. I’m hard to provoke. I’m one of the more mildmannered guys on my side of the aisle, but there was an article

the other day in the Washington Times about the Vice President

was interviewed about this, and his quote was that, at first it

says—the AP report, it says he almost dared the Republicans to

continue their investigations. ‘‘I hope they spend a lot of time and

energy on this,’’ Mr. Gore said to the AP, with a confident grin as

he leaned back in his armchair. That’s, I think, a bad way for the

guy that wants to be the President of the United States to sort of

further the cause of campaign finance reform and get information

before the public.

But you mentioned in your statement that you gave us last week,

when you didn’t come, you thought there were 28 users; now you

know that there are only 24 in all, but three were created before

1997.

Who were the three created before 1997 that aren’t being captured by the ARMS system today?

Ms. NOLAN. They are being captured now. As of this week they

are being captured.

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Mr. LATOURETTE. Including incoming e-mail?

Ms. NOLAN. No, the incoming e-mails are not being captured for

the OVP.

Mr. LATOURETTE. Who are three?

Ms. NOLAN. I don’t know the three accounts. I’m sorry.

Mr. LATOURETTE. So you were able to identify that there are

three people that were created before 1997, but you don’t—— Ms. NOLAN. There were—I think it is 21 created before 1997 and

3 after 1997.

Mr. LATOURETTE. OK. And still today—you know when you’re

talking about the testament, maybe we can get this thing fixed in

6 months, does that include the Office of the Vice President, or

does that just include the MAIL2 and D servers?

Ms. NOLAN. I think it includes the Office of the Vice President,

but I’ll have to check to make sure.

Mr. LATOURETTE. And is it your understanding from the information that you have collected that the problem with the Vice

President’s server just came to somebody’s attention last week?

Ms. NOLAN. I think it was the week before last week. I think my

statement said last week.

Mr. LATOURETTE. But a couple of weeks ago?

Ms. NOLAN. A couple of weeks ago, yes.

Mr. LATOURETTE. So it’s the White House counsel’s testimony

through you. And I know you’re new at it, so we’re talking about

a whole range of White House counsels, but the institutional

knowledge within the White House counsel’s office is that the Vice

President’s Office was not then tied up to the ARMS system, since

it was instituted at the Armstrong case, I guess is how that came

about, the ARMS system. Is that right?

Ms. NOLAN. The ARMS system was developed after the Armstrong case. Of course, the Armstrong case dealt only with Federal

records. These are Presidential records we are talking about now,

but they were meant to be made part of the ARMS system, right.

Mr. LATOURETTE. But nobody noticed—and I understand in your

testimony that Senator Thompson apparently got a couple of emails from the Vice President’s Office——

Ms. NOLAN. He got some. I don’t know how many.

Mr. LATOURETTE. But nobody said, hey, you know what, the guy

that invented the Internet and his staff don’t seem to be doing a

lot of e-mailing; so when we get these records production requests

from, be it our committee or Senator Thompson’s committee, there

aren’t any e-mails from the Vice President of the United States?

Nobody picked up on that?

Ms. NOLAN. You know, I don’t know how many there were. I

don’t know how many were produced. So I don’t know the answer

to that, whether somebody would have noticed the numbers. And

I do want to make clear here that it seems certainly from the testimony I’m aware of from last week that the technical people, the

Northrop Grumman people, knew who was and was not on the

ARMS system, but the lawyers doing the searches did not.

Mr. LATOURETTE. Maybe the explanation for why nobody noticed

the fact that there weren’t any e-mails from the Vice President

during this time period, in that same interview with the AP, he

was asked how much he used his e-mail during the 1996 reelection

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campaign, and he said, ‘‘Didn’t.’’ He was pressed to go on, and he

said just, ‘‘Didn’t.’’ So maybe we’re looking for stuff that isn’t there,

because again the Vice President of the United States indicated

that he didn’t send any e-mails in 1996. So when we reconstruct

his office, we are not going to find them anyway.

Just as the yellow light goes on, the White House counsel’s position is that, as far as you’re concerned, or Mr. Ruff was concerned,

there was no delay in reconstructing these tapes because you didn’t

think there was any need to because you thought the problem was

fixed, the White House counsel thought the problem was fixed, and

if not fixed, everything that came up in this manual search by Mr.

Haas was duplicative of stuff you had sent us before.

So no big deal was the position at that time; it wasn’t a problem?

Ms. NOLAN. Yeah. I don’t think ‘‘no big deal’’ is the right characterization. I don’t think that the counsel’s office understood there

was any problem, not that it minimized it.

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

Mr. BURTON. My time has expired.

Mr. Waxman.

Mr. WAXMAN. Thank you. Just to followup on a point Mr.

LaTourette asked you about, and that was how many e-mails were

produced from the White House regarding Senator Gore’s—Vice

President Gore—excuse me, how many e-mails were produced from

the White House to Senator Thompson’s investigation about Vice

President Gore. I think you should be able to get that information,

and I wonder if you can ask somebody to get that information to

us perhaps before the end of today’s hearing?

Ms. NOLAN. I will certainly try to do that.

May I say something about that, too?

Mr. WAXMAN. Yes.

Ms. NOLAN. Which is that there are a number of ways that OVP

e-mail can be produced or could have been produced by searches of

individual servers, because they had been forwarded to an ARMSmanaged account, because someone had retained a hard copy. So

I just wanted to make that clear in response to Mr. LaTourette’s

question about the Vice President e-mail—Office of Vice President

e-mail.

Mr. WAXMAN. Well, I appreciate what you are saying, but it is

something within your control, and I think you can certainly

produce it for us.

Ms. NOLAN. Certainly. We will try to get the number for you so

that we know what it is.

Mr. WAXMAN. Now, I appreciate both of you being here, and I

think that you can help to clear up one of the central questions

that has been raised today, which is, what did the White House

know about these e-mails and what did they do about them? The

panel from Northrop, computer experts who testified last week,

told us that the technical problems that prevented e-mails from

being properly stored were the result of accidental mistakes made

by government contractors, and I’d like to ask you about this.

Ms. Nolan, were the problems with the White House e-mail system the result of technical computer glitches or were they intentional problems?

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Ms. NOLAN. It is my understanding that everyone agrees they

were technical glitches.

Mr. WAXMAN. Do you have any knowledge that the problems

were the result of a deliberate effort to hide e-mail from Congress

or from other investigative bodies?

Ms. NOLAN. I have no such knowledge.

Mr. WAXMAN. I know that this committee has made numerous

requests to the White House for documents relating to the campaign finance investigation. The White House has produced over

90,000 pages of documents concerning campaign finance inquiries

from this committee alone.

What resources has the White House devoted to responding to requests from this committee?

Ms. NOLAN. The White House, to respond to requests from this

committee, has used a number of lawyers, the resources of lawyers,

the resources of paralegals, the IS&T resources in doing the ARMS

searches. The Office of Records and Management does searches for

us. We really call in a number of components of the Executive Office of the President. Of course, we send a directive to people within the complex to search their own files.

So I don’t have a number, but it’s an extensive amount of resources in order to produce documents, videotapes, audiotapes, provide witnesses.

Mr. WAXMAN. Well, let me point out to you that I was curious

about how much money might have been spent on this whole inquiry. You’ve given us 90,000 pages of documents, just to this committee, and there are other committees and other investigators. So

in 1998 I asked the General Accounting Office to examine the cost

to Federal agencies of congressional campaign finance inquiries.

GAO asked executive agencies to provide information on campaign

finance inquiries received from October 1, 1996, to March 31, 1998,

and according to the responses to this GAO survey, White House

employees had spent over 55,000 hours responding to congressional

campaign finance inquiries at a personnel cost of over $2 million.

That’s the equivalent of 25 White House employees doing nothing

for a year except responding to campaign finance inquiries, and I’d

like to enter this GAO report that I have had prepared into the

record, and a related minority staff report on the cost of congressional campaign finance investigations as well.

Mr. Chairman, I ask unanimous consent to place this in the

record.

Mr. BARR [presiding]. And what is that?

Mr. WAXMAN. This is a minority staff report as well as the General Accounting Office report on the amount of money spent in responding to these investigatory inquiries.

Mr. BARR. Without objection.

[The information referred to follows:]

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Mr. WAXMAN. Did the Executive Office of the President produce

e-mail records to this committee during that campaign finance investigation?

Ms. NOLAN. Yes, sir, they did.

Mr. WAXMAN. How many total pages of e-mails did the Executive

Office of the President produce to this committee in response to the

campaign finance inquiries?

Ms. NOLAN. My understanding is that it was 7,700 e-mails, pages

of e-mails.

Mr. WAXMAN. Did the White House ever intentionally withhold

any e-mails?

Ms. NOLAN. I am not aware that the White House ever intentionally withheld any responsive e-mails.

Mr. WAXMAN. I understand that in responding to the request for

documents, the White House typically searches this ARMS computer archive for responsive material. Is that the only kind of

search that’s done?

Ms. NOLAN. No. The directive that goes out to EOP employees

asks them to search their own records, whether in paper form,

computer form or any other form. So individuals should be searching their own servers on their PCs.

Mr. WAXMAN. So even if a document is not on the ARMS system,

it still could be found by searching an individual computer account;

is that right?

Ms. NOLAN. Yes, and that is apparently what happened. When

the second search was done in June 1998 and the White House

compared the documents from the server, it turned out that people

who had searched their own records had already produced those

documents.

Mr. WAXMAN. Is it possible that some of the e-mails that have

supposedly gone missing because of the technical problems with the

ARMS retrieval system were nonetheless produced to this committee and others requesting documents from the White House?

Ms. NOLAN. Yes, yes.

Mr. WAXMAN. In fact, Ms. Nolan, if I understand you correctly,

all this talk about missing e-mails is a little misleading because it

overlooks the fact that while certain e-mails may not have been

properly archived in the ARMS backup system, they’re not necessarily missing; is that right?

Ms. NOLAN. They’re not necessarily missing. They may have already been produced. They may be on the backup tapes.

Mr. WAXMAN. I’d like to now turn to the chain of events that followed the discovery of a problem with the MAIL2 server in 1998.

Mr. Lindsay testified that after he was told about the MAIL2

problem, he notified the White House counsel’s office, your office.

I know that you weren’t there at that time, but based on what you

have learned, can you tell me what the White House counsel’s office was told about the MAIL2 problem?

Ms. NOLAN. What I understand is that a problem was described

to Charles Ruff, then counsel to the President; that his understanding of the problem was that there had been a problem with a

search, a possible problem with a search. He informs me that he

did not understand the—that a larger problem, such as the MAIL2

problem, or its nature or its scope, existed; and it appears that eiVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00396 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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ther that was not fully communicated or there was some disconnect. I don’t know precisely what was said.

Mr. WAXMAN. At last week’s hearing, Mr. Lindsay told us about

a test search that was then conducted to figure out the extent of

the MAIL2 problem.

Can you tell us why that search was requested?

Ms. NOLAN. I believe, sir, that that refers to the second search

that was done for the documents that might have been missing

from the particular search that Mr. Ruff understood was problematic.

Mr. WAXMAN. And what were the results of that search?

Ms. NOLAN. The result of that search was that all the e-mails

found in the second search had already been provided to the counsel’s office and produced.

Mr. WAXMAN. In other words, it’s your testimony that the documents that were turned up in that test were turned over or were

they not turned over?

Ms. NOLAN. It is my testimony, from my understanding, that

they were produced, sir; they were turned over. They already had

been.

Mr. WAXMAN. Now, just to have a further understanding, these

are e-mails that related to Monica Lewinsky; is that correct?

Ms. NOLAN. That is right. That is my understanding.

Mr. WAXMAN. So if I understand you correctly then, the e-mail

documents that were found in the test search were duplicative of

the e-mails that had been previously turned over; so when they did

the test search, they found the e-mails about Monica Lewinsky,

and they found that these e-mails had already been turned over?

Ms. NOLAN. That’s correct, sir.

Mr. WAXMAN. So, in your view, did it appear that there was not

a problem?

Ms. NOLAN. My understanding is that’s exactly what—how Mr.

Ruff understood it, that either there had been a problem and it was

fixed, or there had not been a problem; but there had not in fact

been—there were no new documents found that indicated that the

production had not been fully done.

Mr. WAXMAN. Yesterday’s Washington Times ran an article that

stated that the White House possesses a, ‘‘previously undisclosed

computer disk containing e-mails by Monica Lewinsky that were

sought under subpoena by a Federal grand jury and three congressional committees,’’ but never turned over. The article stated that

this disk, known as a zip disk, was given to Northrop Grumman’s

counsel, who passed it on to the Executive Office of the President.

Are you aware of a zip disk that was recently provided to the Executive Office of the President by Northrop Grumman’s counsel?

Ms. NOLAN. Yes. This is the—as I understand it, this is the

record of Mr. Haas’ F drive, and he apparently was the one who

did this search, this second search that we were referring to. Mr.

Haas kept that, the record of that search on his F drive, and that

is—that’s the same search. No previously undisclosed, no nonproduced e-mails at all.

Mr. WAXMAN. So these are the same. This zip disk contains the

same e-mails that resulted from that search in June 1998 that the

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White House had previously turned over to the various investigators; is that correct?

Ms. NOLAN. The reference to these previously undisclosed e-mails

is wrong. They are, as far as I know, they are the same ones that

were—had already been produced.

Mr. WAXMAN. Before this zip disk was handed over to the Executive Office of the President, did you know that it even existed?

Ms. NOLAN. No, sir.

Mr. WAXMAN. And what do you know about the origin of this

disk, just to have that on the record?

Ms. NOLAN. My understanding is that a couple of weeks ago, I

am not sure of the exact date, that Mr. Haas made a copy of what

was on his F drive; and he then provided it to Northrop Grumman

counsel, and Northrop Grumman counsel provided it to us.

Mr. WAXMAN. I’m smiling because it looked like we had different

versions of some of the questions, but I think you’ve made the

point. And the essential point, as I understand it, is that what was

on this zip disk was nothing more than the e-mails you had already

turned over and therefore the statement in the Washington Times

that the disk, zip disk, had e-mails that had not been turned over

is not an accurate statement?

Ms. NOLAN. I am not aware of any cache of previously undisclosed e-mails on any disk.

Mr. WAXMAN. At last Thursday’s hearing we heard differing testimony about the content of the e-mails that were not captured by

the ARMS as a result of this MAIL2 glitch. As you saw in that

video clip I showed during my opening statement, Betty Lambuth,

who was former manager of Northrop Grumman Lotus notes team,

stated that the e-mails concerned a number of different investigations. She said she learned this from Robert Haas, who was a

member of Ms. Lambuth’s Lotus notes team. On the other hand,

Mr. Haas testified he did not know the content of these e-mails except for two relating to Monica Lewinsky.

Ms. Nolan, based on your understanding of the e-mail problem,

who do you believe is right, if you have an opinion on this, between

Ms. Lambuth and Mr. Haas?

Ms. NOLAN. Mr. Haas’ testimony is consistent with what I understand about what the previous search was, which is that it was for

e-mails related to the Monica Lewinsky investigation.

Mr. WAXMAN. Ms. Nolan, why wasn’t Congress notified in 1998

when the White House e-mail problems were discovered?

Ms. NOLAN. Mr. Waxman, the e-mail problem that Mr. Ruff understood might have occurred, he did not understand to have any

effect on document productions; and I think that anyone who

knows Charles Ruff knows that if he thought that there were a

large number of documents that he had said had been produced

had not been produced, he would have done something about it.

Mr. WAXMAN. Why didn’t you, when you were already in the

White House counsel’s office in January of this year and you were

briefed on this issue, why didn’t you notify Congress yourself?

Ms. NOLAN. When I was briefed on the issue, it was part of a

larger prebriefing for a post-transition Presidential records meeting. I had no understanding at that time that there were ongoing

391

problems or effects on searches. As soon as I learned of the allegations that there were, you know, we started to look at it.

Mr. WAXMAN. I want to yield some of my time to Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

Ms. Nolan, and Mr. Raben—thank you for being here. Government service is not always easy, and I just want to ask you just

a few questions and just kind of pick up where Mr. Waxman left

off.

In November 1998, a decision was made to fix the MAIL2 problem prospectively so that all incoming external e-mails would be

properly sent to ARMS. When this fix was made in November

1998, what happened to all of those unrecorded e-mail records that

were on the server at the time?

Ms. NOLAN. It’s my understanding that a backup tape was made

of the server on the day that they restored the ARMS system on

a going-forward basis, and those backup tapes are with—in our security office now.

Mr. CUMMINGS. Now, a second problem was discovered in April

1999 that prevented incoming e-mails to users of the first name beginning with the letter D from being properly archived. This problem was apparently caused by programming errors made by contractors in October 1998.

When this second glitch was fixed in May 1999, what happened

to all of those unrecorded e-mail records that were on the server

at that time?

Ms. NOLAN. Again, a backup tape was made, snapshot of the system on the day that the ARMS system was fixed on a going-forward basis, and those tapes are also with our security office.

Mr. CUMMINGS. So to the best of your knowledge today, has the

Office of Administration taken steps to protect those tapes?

Ms. NOLAN. Yes, sir.

Mr. CUMMINGS. How so?

Ms. NOLAN. The Office of Administration has placed the backup

tapes with Charles Easley, who is the Executive Office of the President’s security officer, and he has—has those tapes, I believe, in a

safe in his office.

Mr. CUMMINGS. Now, Ms. Nolan, can you tell me about what the

White House is doing to reconstruct the nonarchived e-mails?

Ms. NOLAN. The Office of Administration has been working to get

a contractor which—and it signed a contract yesterday with an outside contractor to restore the backup tapes, and we particularly—

I particularly asked that we make sure when we were doing this

that—that we go in two paths so that we get the backup tapes

searchable as quickly as possible and we get the backup tapes restored to ARMS, but that we not delay being able to search the

backup tapes by getting them on ARMS first.

So we’re working on two paths to try to get the backup tapes

searchable as quickly as possible.

Mr. CUMMINGS. Now, where are the backup tapes that are going

to be needed to reconstruct the nonarchived e-mails?

Ms. NOLAN. Those are also with Security Officer Easley.

Mr. CUMMINGS. Now when these backup tapes are put in an easily searchable format, does EOP intend to perform keyword

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searches of these records to comply with this committee’s subpoenas?

Ms. NOLAN. Yes. Yes, sir.

Mr. CUMMINGS. Can you explain the problem that prevented email in the Office of the Vice President from being archived?

Ms. NOLAN. I don’t know yet exactly how it happened that e-mail

from the Vice President’s Office was not fully put on ARMS. What

I do know is that the Vice President’s Office was on a different email system from the White House Office and other components of

the Executive Office of the President apparently at the time that

ARMS was started in 1994, and that those accounts were not set

up to be managed by ARMS at that time.

Mr. CUMMINGS. Now, you stated that the Executive Office of the

President had produced 7,700 pages of e-mails, is that correct, to

this committee?

Ms. NOLAN. To this committee in the campaign finance investigation alone.

Mr. CUMMINGS. Did those records include e-mails from the Office

of the Vice President?

Ms. NOLAN. Yes, I believe they did.

Mr. CUMMINGS. Does the fact that the Vice President’s e-mails

have not been archived represent a deliberate effort to hide those

documents from Congress and other investigative bodies?

Ms. NOLAN. I have seen no indication that anyone was trying to

hide these documents from congressional investigative bodies or

any other investigative bodies.

Mr. CUMMINGS. Now, when you made your statement early on,

just the early part of your presentation here, you made it clear that

you are discovering information as you go along; is that right?

Ms. NOLAN. Yes, sir.

Mr. CUMMINGS. Do you have any anticipation as to many

changes taking place with regard to statements you have already

made to us or things you think you may find out?

Ms. NOLAN. I don’t know.

I want to be clear. I don’t know what I may find out later, but

I think that what’s important to know now is, we—we have the

backup tapes. We have—are secured with our security officer. We

have an outside contractor on board to try to get these restored and

searchable as quickly as possible. Until we do that, I can’t say any

more.

Mr. CUMMINGS. Thank you, and I want to thank the gentleman

for yielding.

I yield back.

Mr. WAXMAN. Thank you very much, Mr. Cummings.

Mr. Raben, I want to ask you about the criticism the Attorney

General has been receiving from Chairman Burton. When he originally called this hearing on March 8th, he wrote a letter to the Attorney General, and was pretty harsh in his criticism because he

criticized the Attorney General for not investigating this e-mail

problem. And, in fact, he was pretty strong about it. He said the

appearance created by this failure to investigate seems to indicate

that there’s no interest, no intention of pursuing a vigorous investigation of the White House. And so the Attorney General was

being criticized for not investigating.

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Now the Justice Department, headed by the Attorney General,

has announced an investigation, and the criticism by our chairman

is that instead of applauding this investigation, he wrote an even

stronger letter to the Attorney General on March 27 in which he

said that, ‘‘Because you and your staff are in charge, the proposed

investigation is fatally flawed.’’ So the chairman is saying on the one hand, you didn’t investigate; when you do, it’s flawed, and he wants an independent

counsel to take over. But it doesn’t end there, because yesterday,

March 29th, the chairman, in a letter to Judge Royce Lamberth,

wrote, ‘‘Recent efforts by the Attorney General to control this investigation appear to be nothing more than a ploy to retain control

over matters that will ultimately focus on how the Justice Department helped the White House in its efforts to refrain from producing documents to Congress and various independent counsels.’’ So to summarize what I understand has happened, on March

8th, the Justice Department is criticized for not investigating the

e-mails; on March 27th, the chairman decides that the Justice Department investigation that he requested is fatally flawed; and now

on March 29th, we learn that the Justice Department’s investigation is not only flawed, it’s part of some huge attempt at cover-up.

So, Mr. Raben, it seems to me that the Attorney General is

damned if she does and damned if she doesn’t; whatever action she

takes, the chairman finds grounds for criticism.

Ms. Nolan, let me just see if I can summarize where I understand some people are taking this investigation.

Some people have a theory. They acknowledge that this problem

with the ARMS retrieval system was flawed, and they recognize

that the mistake was not because the White House caused it to be

flawed, but when the White House found out that it was flawed

and not capturing all the various e-mails, they tried to cover it up

and threatened people who might make it public, particularly personnel who knew about the failure of the ARMS system to retrieve

the e-mails.

Now, of course, if this theory is true, this amounts to obstruction

of justice.

As I understand it, the White House counsel, Charles Ruff, when

he heard about this problem, asked that a test be done to see what

was happening with these e-mails that were not on the centralized

ARMS system, and used Monica Lewinsky as an example topic—

obviously a pertinent one at the time—for the investigation; and

when this test was done, he found out that the e-mails that were

not on the ARMS system apparently were picked up because they

were retrieved from the individual computers. And when they were

retrieved from the individual computers and he found that they

were duplicative of those that were already turned over to the investigators, it seems like he concluded there was no real-world

problem; that while the centralized system wasn’t getting the emails, the search of the individual computers seemed to be picking

up these e-mails.

So we’re talking about Mr. Ruff. I mean, he’s the only one; if

there’s this cover-up, if there’s this conspiracy, if there’s a threat

to witnesses that might make this public, he would be the one in

charge of this whole thing. But he went out and tried to make sure

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that they were getting all the e-mails to the appropriate investigative agencies, and he did this test to be sure that that was the

truth, or at least, as he understood it, that they weren’t leaving

anything out.

We had testimony last week from Mr. Spriggs and others that it

was their understanding the White House wasn’t trying to coverup the problem. They were trying to correct the problem. There

seems to be some concern that Northrop Grumman might say, well,

they’re going to need more money to correct the problem, but the

White House wanted the problem corrected.

Is this a summary of what you understand to be the facts in this

case?

Ms. NOLAN. Let me clarify one thing where I—my understanding

differs from what you just summarized, which is that—my understanding is that Mr. Ruff understood the problem to be related to

this particular search. So he wasn’t doing a test to see if the system worked generally, but rather was doing a second search for the

particular search that there may have been a problem for. And

when the files came back, which showed that, in fact, everything

had been captured, it’s my understanding that Mr. Ruff believed

there had been no problem, there was no ongoing problem.

Mr. WAXMAN. Well, let me just say that I’ve worked with many

people in the course of the time I’ve been in public office, and beforehand, and I am very careful to say—to vouch for anybody, but

I’ve worked with Mr. Ruff, and I know him to be a man of integrity

and principle; and in my mind, there’s never been any question

about his honesty and integrity, and I cannot believe this theory

that would hold him responsible for some kind of cover-up and

threatening people and all the other—other facts that would have

to fit in, be shoe-horned into this theory that would amount to a

scandal.

And if this is all there is, if this is what this whole scandal is

all about, I must say I am not very impressed that we have found

a new scandal to wave our arms about and to carry on as if there’s

been something intentionally done to frustrate justice.

I thank both of you very much for your testimony and yield back

the balance of my time.

Mr. BURTON. Thank you, Mr. Waxman. I understand Mr. Raben

needs a brief break, and Ms. Nolan, I think we will allow both of

you to have 10 minutes, if that’s all right with you for a break; and

then we’ll get back to the questioning.

So we stand in recess for 10 minutes.

[Recess.]

Mr. BURTON. The committee will reconvene.

I apologize for the length of our tour to the floor, but, unfortunately, there were a number of votes.

I will recognize the gentleman from Florida, Mr. Mica, for 5 minutes.

Mr. MICA. I thank the chairman, and I do have a question for

Ms. Nolan.

First of all, you have talked about the suddenly reappearing

Haas disk, zip disk I guess it’s referred to, tapes in your testimony

to us, your statement to us. And that contains—was it 500 records

or e-mails?

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Ms. NOLAN. Sir, I don’t know how many it contains.

Mr. MICA. You also sort of indicated for the other side that those

had matched what was given to the—had been possibly given to

the independent counsel or to investigators. Was that correct or

were you told that?

Ms. NOLAN. I was told that what—what Mr. Haas did was a second search in June or July, I am not sure, summer of 1998, that

that search produced—he did a second search of the server—and

that search produced e-mails which were provided to the counsel’s

office, which checked and found they were duplicative of e-mails already provided.

Mr. MICA. But you’re not aware—you’ve not seen those 500

records?

Ms. NOLAN. I have not yet, sir.

Mr. MICA. So you don’t know whether they match? You don’t

know whether, in fact, that that information was the same that has

been provided to the investigative body that required it?

Ms. NOLAN. I know that Mr. Haas has described what—what he

saved as the search that we looked at.

Mr. MICA. You also indicated that now there are an additional

number of back-up tapes, is that correct? Is it 620 some back-up

tapes.

Ms. NOLAN. I think, sir, I’m not sure of the exact number. There

are about 3,400 for the EOP all together. There are about 625 for

the Vice President’s Office.

Mr. MICA. As opposed to a lower number that had previously

been disclosed?

Ms. NOLAN. Last week I had been told that there were about 550

Vice President’s back-up tapes.

Mr. MICA. Now, it’s 625. So there’s two bodies of information, one

is the White House and one is the Vice President?

Ms. NOLAN. One is the Executive Office of the President, but

some of those—some of the Vice President’s ones were with the

EOP ones.

Mr. MICA. We had heard from various witnesses or sources that

there was information on the impeachment, campaign finance, foreign campaign contributions, Filegate. I heard also selling of trade

mission seats and other things that were under investigation by

various panels or special counsels. You’re not aware then what’s on

any of these tapes? There may, in fact, be a large number of files

or records that have not been turned over; is that correct?

Ms. NOLAN. I don’t know what’s on the tapes. What I do know

is that we know that it’s incoming e-mail during those certain periods for the EOP and the e-mail for the OVP that we’re going to

have to reconstruct and then we’ll search for the e-mails.

Mr. MICA. And, really, all you know about Mr. Ruff has said of

his involvement—you said he knew that there was a technical

problem, right?

Ms. NOLAN. That’s my understanding, yes.

Mr. MICA. You never got into the point that Mr. Ruff might have

been told by Mr. Lindsay that not only was there a technical problem but there was the problem that we had described to us that

people were talking in the hallways about what was on the tapes

and that needed to be hushed up?

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Ms. NOLAN. No. I asked Mr. Ruff if he had heard anything like

that. He had not.

Mr. MICA. You asked him specifically that question?

Ms. NOLAN. Yes, I did.

Mr. MICA. And he told you he was only aware of the technical

problem?

Ms. NOLAN. That’s right.

Mr. MICA. What is DOJ doing as far as investigation? Have they

requested any files or information? Does—will DOJ have access before anyone else in their investigation of the materials that you

have?

Ms. NOLAN. We have received a letter from the Campaign Finance Task Force, as we did from other investigative bodies, asking

us to explain the problem. We have not made any arrangements

with any investigative body about access or priority of access.

Mr. MICA. Has DOJ met with anyone, with you or others, regarding this investigation?

Ms. NOLAN. No, sir.

Mr. MICA. They haven’t to date?

Ms. NOLAN. No, that’s correct.

Mr. MICA. DOJ, who’s in charge of your investigation?

Mr. RABEN. Who’s in charge of the investigation? The Campaign

Finance Task Force initiated the investigation.

Mr. MICA. And even though this may go beyond that, they’re still

charged with that?

Mr. RABEN. They initiated the inquiry.

Mr. MICA. Do you know what steps they have taken? Have they

requested access to any of the material that’s in the possession of

the White House at this time?

Mr. RABEN. I don’t have personal knowledge of all the steps that

they have taken, sir.

Mr. BURTON. Does the gentleman have any more real quick questions? I know he has to catch a plane.

Mr. MICA. Well, what—just—could you provide just, finally, some

background about the head of security that’s now in charge of the

tapes, Ms. Nolan?

Ms. NOLAN. Charles Easley is the EOP security officer. I know

that he’s a long-time government officer who has responsibility for

reviewing background investigations and making determinations,

security determinations within the complex.

Mr. MICA. Finally, has your office notified the congressional committees or the independent counsel or any of the other bodies who

had requested information under subpoena that there may be existing files or information that has now been uncovered? Has that

been done?

Ms. NOLAN. We’ve had a communication with a number of independent counsels and congressional committees. I am still trying to

make sure that we gather information about every request that

came in during that period.

Mr. MICA. Would you provide the committee just for the record

a copy of those communications so we that can see who has been

noticed that you have now uncovered some of this material that

may have been subpoenaed some 3, 4 years ago?

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Mr. MICA. Thank you, Mr. Chairman.

Mr. BURTON. Thank you and have a safe trip home.

Before I yield to Mr. Barr let me just real quickly ask one question.

Ms. Sheryl Hall has indicated that she was told by Mr. Haas,

and Mr. Haas denied this at our hearing, but she was told that he

had information on his zip disk that there were trips on these

trade missions that were offered for campaign contributions and

also that there was information on these zip disks dealing with the

Vice President’s soliciting campaign funds. Now, Mr. Haas said before the committee that he had no zip disk, that there was nothing

at his home, and now we find that he does—did have a zip disk,

and so I wonder if you have taken—I mean, you indicated that

there was some information that you had knowledge of on the zip

disks. Do you have knowledge of everything that was on the zip

disk?

Ms. NOLAN. Sir, Mr. Haas, as I understand it, made a copy of

his F drive, of his server drive on the computer—— Mr. BURTON. Right, right.

Ms. NOLAN [continuing]. Within the past couple of weeks.

Mr. BURTON. Right.

Ms. NOLAN. That that information he has said was what he did

when he did the search for Lewinsky e-mails, and he has said there

is no other information.

Mr. BURTON. But do you have knowledge of what was on it?

Ms. NOLAN. I don’t.

Mr. BURTON. What has happened to that zip disk?

Ms. NOLAN. The zip disk, sir, was given to Mr. Easley. My understanding is that when they opened the zip disk or tried to read

some of the zip disk material they couldn’t read all of it. They went

back to Mr. Haas’s F drive, made another zip disk. Mr. Easley has

that. They’re going to try to open it and find the files.

Mr. BURTON. I think we’ll issue a subpoena for both the original

zip disk and the one that was remade off of his hard drive. I think

it’s extremely important that we have that.

One other question. You said that the e-mail system had something in it that would block out e-mails from a mother or a father

or something like that. Did you say that?

Ms. NOLAN. What I said, sir, is that when a user sends an email, you can—I can indicate if I’m sending an e-mail that it’s nonrecord, that it’s not a record, not a Presidential record.

Mr. BURTON. Can a person from the outside?

Ms. NOLAN. A person from the outside cannot do that.

Mr. BURTON. But a person from the inside can.

Ms. NOLAN. A person from the inside can.

Mr. BURTON. Could somebody from the inside, if they had gotten

an e-mail from a friend like John Huang or Charlie Trie or Mark

Middleton or Maria Hsia, could they have blocked that out?

Ms. NOLAN. Well, they can’t block out. It still gets sent to ARMS.

My understanding is that there is some kind of regular review to

see that things indicated as nonrecords are in fact nonrecords.

Mr. BURTON. What does that mean?

Ms. NOLAN. Well, this is what I understand, sir. That everything—the way that ARMS works is that when an EOP user who

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has an ARMS-managed e-mail account sends an e-mail, it is always

blind-copied, BCC’d, to ARMS, to records management.

Mr. BURTON. We’re talking about an e-mail from the outside

coming in.

Ms. NOLAN. An e-mail from the outside. The e-mails from the

outside. Because they can’t be BCC’d to ARMS when they’re written, they’re scanned as the server is scanned about every—I think

it’s several times a minute.

Mr. BURTON. I know. But the point is, you said they can

block—— Ms. NOLAN. You can’t block out any incoming e-mails.

Mr. BURTON. So it would automatically go to the ARMS?

Ms. NOLAN. They would go to ARMS, and you don’t block out

ones you write. You simply indicate that they’re nonrecords.

Mr. BURTON. I’m only interested in the ones coming in.

Ms. NOLAN. The ones coming in, no.

Mr. BURTON. All of those would be on the ARMS system—— Ms. NOLAN. If they were captured.

Mr. BURTON. Why would they not be captured?

Ms. NOLAN. Well, during the MAIL2 and letter D problem, that

is exactly the problem. That incoming e-mail to the complex for certain accounts that were coded as MAIL2 all caps, instead of MAIL2

upper and lower case, or those whose, the recipient, the user, first

letter of their account began with D were not properly scanned by

ARMS so they were not put in ARMS. That’s what we’ll be searching for on the back-up tapes.

Mr. BURTON. I am not sure I understand. Is there some way— any way that an incoming e-mail could be blocked by the receiver

of the e-mail so that it would not be recorded on any other system,

any other system?

Ms. NOLAN. Not that I’m aware of, sir.

Mr. BURTON. You can’t make a categorical statement? You’re just

saying not that you’re aware of?

Ms. NOLAN. I am not aware of any way.

Mr. BURTON. I guess when you were talking earlier you said that

there was some way that if somebody got an e-mail from a relative

or something—— Ms. NOLAN. No. I’m sorry, sir, if I was at all confusing about this.

What I was saying was if I write an e-mail—— Mr. BURTON. Outgoing.

Ms. NOLAN. Outgoing, I can indicate that it’s a nonrecord.

Mr. BURTON. I see. But if it’s an incoming?

Ms. NOLAN. I can’t do anything with it.

Mr. BURTON. It’s definitely going to be recorded?

Ms. NOLAN. Unless of course you have the scanning problems

that occurred in the MAIL2 and letter D problem.

Mr. BURTON. Well, if you find any additional information on that,

I’d like to have that.

Ms. NOLAN. Certainly.

Mr. BURTON. Mr. Barr.

Mr. BARR. Yes. Thank you.

Ms. Nolan, the ARMS system, that is not just some program that

somebody decided they wanted to have. It’s a very important program, is it not?

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Ms. NOLAN. Sir, it is an important program.

Mr. BARR. And it provides capability, does it not, for the White

House to comply with various Federal laws that require the retention and retrievability of e-mails, does it not?

Ms. NOLAN. ARMS was set up in order for the Executive Office

of the President to comply with the Federal Records Act. It also is

an effective tool for complying with the Presidential Records Act,

but the Presidential Records Act doesn’t require that e-mail be

saved in any particular form, as far as I know.

Mr. BARR. But it does require them to be saved and be in a form

that is retrievable, is that not correct, pursuant, for example, to the

Armstrong decision in 1993?

Ms. NOLAN. Well, of course, the Armstrong decision explicitly— the court explicitly said that it was not applying that decision to

Presidential records, only to Federal records.

Mr. BARR. Are Presidential records not Federal records?

Ms. NOLAN. The law provides for two kinds of records, Federal

records, which are most agency records, and Presidential records,

which are those who assist and advise the President, the White

House Office. Vice Presidential records are treated like Presidential

records. Some of the other units in the EOP, like the Office of Management and Budget, are mostly Federal records, not Presidential

records.

Mr. BARR. But records such as those that are the subject of this

hearing and the hearing last week and future hearings are subject

to retention and retrievability, are they not?

Ms. NOLAN. Sir, I want to be clear on the—the Armstrong decision compelled certain records management and retrievability for

Federal records. It did not address Presidential records. So I am

not aware that there’s a decision that says that Presidential

records—— Mr. BARR. Is your position then that Presidential records—and

maybe you ought to define those for us—are not subject to the

Armstrong decision?

Ms. NOLAN. That’s correct.

Mr. BARR. Is your position also that the Privacy Act does not

apply to those records?

Ms. NOLAN. Yes, sir. It is a long-standing interpretation of the

Privacy Act from the Justice Department, starting with its initiation, that it does not apply to the White House Office and essentially to Presidential records.

Mr. BARR. In other words, you take strong exception to Judge

Lamberth’s decision yesterday.

Ms. NOLAN. I disagree with Judge Lamberth’s decision yesterday,

yes, sir.

Mr. BARR. Because you believe that e-mails such as those which

we’re considering here which are subject to subpoenas, for example,

by the Office of Independent Counsel, this committee and the impeachment committee or the Judiciary Committee do not apply to

e-mails generated by or from the White House?

Ms. NOLAN. No, sir. I’m sorry. Could you repeat that question?

I’m not sure I understood it.

Mr. BARR. What we’re talking about here are a large number of

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fice of the President and other offices within or connected with the

White House, is that correct?

Ms. NOLAN. Yes, the problems, with the exception of the OVP,

apply to the incoming, not the e-mail generated by the EOP user.

I want to make sure that I’m clear about that.

Mr. BARR. So your position, then, is that the subpoenas—for example, those issued by the Office of Independent Counsel, subpoenas for these documents by this committee or by the impeachment

committee, that you do not even have to comply with those because

they relate to outgoing e-mails?

Ms. NOLAN. Absolutely not, sir. I hope I didn’t say anything close

to—I believe I did not say that.

Mr. BARR. That’s why I wanted to clarify. Because it struck me

far reaching even for this administration.

Ms. NOLAN. I understood your question to be whether the Presidential Records Act or the Armstrong case require White House Office records to be retrievable in an electronic form. I am not aware

that there is any such legal obligation. Armstrong did not apply to

Presidential records, and the Presidential records—— Mr. BARR. They did not say they weren’t covered, though.

Ms. NOLAN. No. The court actually considered that question, yes,

sir.

Mr. BARR. Your position is that the Armstrong decision expressly

provided that e-mails going to the White House or going out of the

White House are not subject to retrieval in an electronic format.

Ms. NOLAN. No, I’m saying that the Armstrong case specifically

excluded discussion of Presidential records, which includes White

House Office records. It addressed Federal records. And that was

a specific part of the case, the plaintiffs—my understanding is that

the plaintiffs actually wanted the court to address both. And it did

not.

Mr. BARR. So what you’re saying there’s a loophole here——

Ms. NOLAN. No loophole, sir.

Mr. BARR [continuing]. Through which you want to drive a Mack

truck. But those same e-mails are properly subject, are they not,

to subpoena by the independent counsel and by committees of Congress. Is that correct?

Ms. NOLAN. We’ve supplied thousands and thousands of e-mails

pursuant to subpoena requests.

Mr. BARR. Yes, they are subject to subpoena, but if they happen

to be in an electronic format, and you all just happen to lose them

or not know where they are, that you’re under no obligation to

search the records for them because they’re not covered by the various statutes of the Armstrong decision.

Ms. NOLAN. I didn’t say anything like that, Mr. Barr.

Mr. BARR. Does the White House recognize an obligation to have

e-mails sent from or to employees in the Executive Office of the

President stored in such a way so that they can be retrieved and

be responsive to subpoenas issued by the Office of Independent

Counsel or a congressional committee?

Ms. NOLAN. Mr. Barr, the White House included White House

Office and Presidential records e-mails in the ARMS system, which

is an automated retrieval system, even though it was under no

legal obligation at the time to do so. It has used the ARMS system

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to try to—to respond to subpoena requests. I don’t think there’s

any suggestion——

If I haven’t been clear about this, let me be clear. There is no

contention here that we were under no obligation to search and

produce. What happened was that the search did not produce certain e-mails because they weren’t in the ARMS system or may not

have produced certain e-mails because they were not properly captured in the ARMS system. The lawyers who were doing the productions were not aware that the ARMS system did not contain

those e-mails.

Mr. BARR. On what basis do you make the statement that they

weren’t aware of it? Because it’s my impression that they were

through several means.

Mr. BURTON. Let me—Mr. Shays, do you intend to yield to Mr.

Barr?

Mr. SHAYS. I’ll be glad to yield.

Mr. BARR. There were various articles written in the public domain back in 1998 that this problem did exist. Judicial Watch furnished letters to Judge Lamberth indicating on the record that this

problem did exist. We had testimony just a week ago that there

was a—in July 1998 that Mr. Haas did a search of several users’

files for e-mails regarding Ms. Lewinsky. And that there were a

fairly significant quantity that were retrieved and they were delivered to the White House counsel’s office.

He could not—or at least testified that he could not remember

to whom they were delivered or precisely when, and he professed

to have no knowledge or record of when they were delivered.

So, it mystifies me, to some extent, one, to hear you say that nobody in the White House counsel’s office was aware that there was

this problem or that these e-mails were not retrievable. There was

testimony that they were retrievable.

Ms. NOLAN. Sir——

Mr. BARR. Specifically with regard to—and I’m sure you’re aware

of the testimony last week by Mr. Lindsay, the other Mr. Lindsay,

that he did in fact deliver this large set of e-mails that he had retrieved at the direction of Miss Lambuth to the White House counsel’s office—where are those e-mails?

Ms. NOLAN. He—the e-mails were produced to the counsel’s office. The counsel’s office checked them against e-mails it had already been provided and produced and discovered that they were

duplicative. So there were no new e-mails. That is my understanding of——

Mr. BARR. But where are they?

Ms. NOLAN. The F drive—Mr. Haas’s F drive, which has the results of that search, is in the EOP; and a zip disk of that has been

made; and that’s where Mr. Easley——

Mr. BARR. But where are the e-mails? They were hard documents

delivered. Where are they?

Ms. NOLAN. The hard documents? Mr. Barr, I will find out.

Mr. BARR. Well, is there any record of them having been delivered to the White House counsel’s office in approximately July

1998?

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Ms. NOLAN. A lawyer in the counsel’s office remembers checking

e-mails against another—a set that we had produced and determining that they were duplicative.

Mr. BARR. Who is that lawyer from the White House counsel’s office?

Ms. NOLAN. Michelle Peterson, sir.

Mr. BARR. Might I suggest we subpoena Ms. Peterson? Maybe

she remembers.

Mr. BURTON. I think that’s a good idea.

Would the gentleman yield for just a moment?

Mr. BARR. Certainly.

Mr. BURTON. Now, Ms. Peterson according to your testimony, you

said that they were duplicates of what had already been given to

various individuals, i.e., the independent counsel and then Mr.

Hyde’s investigation and so forth. Why didn’t you just go ahead

and send those over there instead of checking to see if they were

duplicates? Because you know there’s some question among some

people about whether or not everybody has been getting the

straight scoop on what was going on over there and what was in

these e-mails. For somebody at the White House who works for the

President to say that they’re duplicates still doesn’t erase all doubt.

I mean, why didn’t they just go ahead and send the hard copies

over to the independent counsel and to the investigative committees that wanted them?

Ms. NOLAN. Mr. Burton, my understanding is that the counsel’s

office was informed that there was or might have been a problem

in conducting a search, that the second search was done. And I

want to be clear that the search, as I understand it, was of the

server, which is what Mr. Haas testified he did. That second search

showed that there had not been a problem because those documents had already been found, apparently, when people—— Mr. BURTON. I know, but that’s not the question I’m asking.

Ms. NOLAN [continuing]. When people conducted their own

searches of their own servers. And so there was no——

Mr. BURTON. I understand.

Ms. NOLAN [continuing]. No question.

Mr. BURTON. But the question is you had hard copies of the email. They were sent to the President’s chief counsel’s office, Mr.

Ruff’s office. Ms. Peterson went through those, and she said they

were duplicates. But, you see, those of us who are investigating

don’t want somebody at the White House to say they’re duplicates.

We want the hard copy so we can look at them and see if they’re

duplicates. Why weren’t those forwarded on so that determination

could be made by the relevant committees that had subpoenaed the

documents?

Ms. NOLAN. Sir, I’m not sure how to explain it any better than

I have. If somebody came to me and said, here are some documents; did we produce these? And somebody looks at them and

says, yes, we produced them. I wouldn’t say let’s produce those, too.

That was the question that was being asked. Have we produced

them?

Mr. BURTON. I think the problem here is they were from a different source. They went through Mr. Lindsay’s office to the chief

counsel’s office. And they made the determination they were dupliVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00412 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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cates. I think we ought to see those—see all of those documents.

So we’ll send a relevant subpoena up for those as well as the zip

disk as well.

Mr. Shays. It’s my time. Now I yield to Mr. Shays.

Are you finished, Mr. Barr?

Mr. BARR. No, I could use some more time if it’s available.

Mr. BURTON. Excuse me. Mr. LaTourette, are you prepared to go

forward?

Mr. LATOURETTE. I’ll yield to Mr. Barr. I would be happy to yield

to Mr. Barr.

Mr. BURTON. Mr. Barr.

Mr. BARR. Thank you.

The search that that you were talking about, Ms. Nolan, I think

you described it as the second search earlier?

Ms. NOLAN. The search that Mr. Haas did?

Mr. BARR. Is that the search that you’re talking about when you

say the second search?

Ms. NOLAN. I’m sorry. You would have to point me to exactly

where I said the second search. I assume that’s what I was talking

about.

Mr. BARR. I think it was pursuant to some of your answers to

questions by Mr. Waxman you used the term second search.

Ms. NOLAN. You know, unless I see exactly where I said it I can’t

assure you, but my best guess, Mr. Barr, is that, yes, I was referring to the search that Mr. Haas did of the server after the Mail2

problem had been identified.

Mr. BARR. What was the scope of that search?

Ms. NOLAN. I don’t know exactly, sir.

Mr. BARR. OK. When was it conducted?

Ms. NOLAN. Some time in the summer of 1998. I’m not sure.

Mr. BARR. Is the one that you say was conducted by Mr. Haas?

Ms. NOLAN. That’s correct, sir.

Mr. BARR. OK. Mr. Raben, last week the Department of Justice

indicated I think that it was launching a criminal investigation of

this matter. What was it in particular that gave rise to that decision at that particular time last week?

Mr. RABEN. I don’t know all of the facts that prompted the Campaign Finance Task Force—— Mr. BARR. How about some of them? Share some of them with

us.

Mr. RABEN. I know there’s a filing that was submitted in the civil

case that reflects some of the concerns that the Campaign Finance

Task Force perceived that prompted them to initiate their inquiry.

Mr. BARR. Are you talking about Mr. James Gilligan?

Mr. RABEN. No, sir. There’s a——

Mr. BARR. Who is James Gilligan? Could you tell us how he fits

into the equation?

Mr. RABEN. I believe that he’s an attorney in the Civil Division,

but I don’t know.

Mr. BARR. OK. But he is involved, is he not, with these probes?

Mr. RABEN. I’m not sure what you mean by probes. Do you mean

the criminal inquiry that’s been initiated?

Mr. BARR. Not only that one but the various investigations that

have been ongoing, both civil and by the independent counsel.

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Mr. RABEN. I’m not sure exactly what he does. I can find out and

get back to you. But I believe he’s a Civil Division attorney that’s

been involved in the civil action.

Mr. BARR. And he was aware at least as far back as December

1998 about this problem, is that correct?

Mr. RABEN. I have no idea what he was aware of, sir.

Mr. BARR. Do we a copy of—I have a letter here from Judicial

Watch dated December 8, 1998, referencing articles from an edition

of Insight Magazine. And if we could ask—if I could ask unanimous

consent to have that made a part of the record, please, Mr. Chairman.

Mr. BURTON. Without objection, so ordered.

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Mr. BARR. That letter is dated December 8, 1998 to Mr. Gilligan

at the Civil Division of the Department of Justice. Now, does Mr.

Gilligan work with Michelle Peterson?

Mr. RABEN. Mr. Gilligan, I believe, is the Department of Justice

attorney. I believe—I don’t think I know Ms. Peterson, but I think

I learned today that she works at the White House.

Mr. BARR. It’s a fact that Mr. Gilligan works with Michelle Peterson and Sally Paxton. They are both at the White House counsel’s

office, are they not?

Ms. NOLAN. Sally Paxton is not, sir. She was at the White House

counsel’s office. Michelle Peterson is, yes.

Mr. BARR. When did Ms. Paxton leave?

Ms. NOLAN. It was before I got there, sir. I’m not exactly sure.

Mr. BARR. How about approximately?

Ms. NOLAN. I don’t know. I could get the answer to you, but I

don’t know.

Mr. BARR. You went there most recently—— Ms. NOLAN. In September of this year. September of—last year,

rather—September 1999.

Mr. BARR. But she had been there in 1998?

Ms. NOLAN. I couldn’t testify to that. I just don’t know. I will try

to find out.

Mr. BARR. Maybe Mr. Lindsay is helping us out here. Is he? Is

Mr. Lindsay helping us out here?

Ms. NOLAN. Not that I can figure out.

Mr. BARR. Mr. Bruce Lindsay is here. Would you like to testify

Mr. Lindsay?

Mr. LINDSAY. I’m not sure when she left. We can find out for you.

Mr. BARR. OK. You do have a copy of the December 8th, 1998,

letter there, I believe.

Ms. NOLAN. Oh, that’s what I have. Yes, sir. I haven’t read it yet.

Mr. BARR. It’s a fairly short letter from Judicial Watch, and I

don’t know if you have the attachments, but there were some attachments there. The point is that, at least in December 1998, Mr.

James Gilligan was on notice that there was this problem with the

e-mails. Do you need to go to another member?

Mr. BURTON. Yes, the gentleman’s time has expired. We’ll come

back. I think we’re starting our second round.

Let me just go back to the document that—I’ll take my 5 minutes

now—that Mr. Barry signed. Mr. Raben.

Mr. RABEN. Raben.

Mr. BURTON. Raben. I’ll get it right.

Mr. RABEN. It’s close to the building.

Mr. BURTON. Do you agree that paragraph 4 of the affidavit is

false?

Mr. RABEN. I haven’t seen the affidavit.

Mr. BURTON. Well, stop the clock.

Mr. RABEN. I mean——

Mr. BURTON. Give Mr. Raben the document—56. Would somebody give him a copy of the document? It’s on the table in front of

you, I guess. They tell me it is.

Mr. RABEN. Oh, I’m sorry. Yes there is a 56 here.

Mr. BURTON. Would you look at paragraph 4 of the affidavit?

Would you agree——

413

Mr. RABEN. Since July 14th, that one?

Mr. BURTON. Yes. Would you agree that that’s false?

Mr. RABEN. I just want to be clear. So this is the declaration that

we’re talking about, paragraph 4? Since July 14th, 1994, e-mail

within the EOP, that paragraph?

Mr. BURTON. That’s it.

Mr. RABEN. I have no knowledge. I have no ability to determine

whether it’s true or false.

Mr. BURTON. You know, I think I’ve asked you four or five questions, Mr. Raben, and every one of those questions you said you

have no knowledge or you can’t—what are you doing here?

Mr. RABEN. Well, you subpoenaed me, sir.

Mr. BURTON. Well, I subpoenaed—well, I’ll tell you what I’ll do

the next time. I’ll just have to subpoena the whole doggone Justice

Department. Because somebody has the answer up there. You’re

the man that was supposed to be the one that could answer the

questions. You have no knowledge. Did you talk to anybody at the

Justice Department about the questioning that was going to go on

this week?

Mr. RABEN. Yes, I did.

Mr. BURTON. Did you go over any of the documents or any of the

information that we discussed last week or any of the testimony of

last week?

Mr. RABEN. I looked through some of the public documents that

I know to have been disseminated in this case, some of the transcripts.

Mr. BURTON. Last week, we talked to Mr. Barry, and it was a

significant part of the discussion. Do you recall us talking to Mr.

Barry? Did you review any of those documents that we talked to

Mr. Barry about?

Mr. RABEN. I did not.

Mr. BURTON. You did not. Did you review any of the testimony

from last week?

Mr. RABEN. I read some of it, yes.

Mr. BURTON. You read some of it.

Mr. RABEN. Yes.

Mr. BURTON. So you came to testify and you hadn’t reviewed the

documents or the information.

Ms. Nolan, did Mr. Barry express any hesitation about signing

that affidavit, do you know?

Ms. NOLAN. I don’t know sir. I wasn’t there, and I don’t know.

Mr. BURTON. We’ve been informed that Barry was told not to

worry about it by Justice Department lawyers, but you have no

knowledge of that.

Ms. NOLAN. I have no knowledge of that.

Mr. BURTON. Neither does Mr. Raben.

Mr. Raben, do you know if Barry expressed any hesitation to

Justice Department lawyers that the affidavit that they help him

prepare was accurate, was not accurate?

Mr. RABEN. No.

Mr. BURTON. You have no knowledge.

Mr. RABEN. No knowledge.

Mr. BURTON. Who at the Justice Department would have knowledge?

414

Mr. RABEN. Knowledge of what? Of Mr.—— Mr. BURTON. Of this affidavit and whether or not they told Mr.

Barry that there was no problem with him signing it.

Mr. RABEN. I don’t know. I will try to find out for you, sir. I presume that we’re talking about people within the Civil Division.

Mr. BURTON. Do you know who helped him prepare the affidavit?

Mr. RABEN. Do not.

Mr. BURTON. You don’t know that either.

Mr. RABEN. I do not.

Mr. BURTON. So you don’t know if Mr. Barry was told not to

worry about any problems in the affidavit. You don’t know that either.

Mr. RABEN. No. I have failed to say and should make it clear,

I presume, but you will not be surprised to hear that I don’t know

that many of the facts that you’re talking about are now going to

be encompassed or are encompassed within an initiated criminal

inquiry.

Mr. BURTON. Within your investigation that you will control at

the Justice Department, correct.

Mr. RABEN. There will be a Justice Department criminal investigation of—— Mr. BURTON. And usually when we asked for information, when

the Justice Department involves itself in a criminal investigation,

they say that’s pending before the Justice Department, and a congressional committee has no jurisdiction until it has been resolved.

That’s the kind of answer we’ve been getting time after time. It’s

before the grand jury, it’s 6-C material, and we can’t get anything

out of the Justice Department.

Let me just say I want to know—I’m asking you to find out who

helped draft that affidavit. I want to know exactly who at the Justice Department helped prepare that affidavit.

And, Ms. Nolan, I would like to know at the White House who

exactly help participate in drafting that affidavit. Because I’m

going to subpoena those people and have them come before the

committee and ask them whether or not they gave him that kind

of information, that there was no risk in him signing that.

Mr. BARR. Would the chairman yield for a moment?

Mr. BURTON. I would like to find out, if you have somebody that’s

an assistant here, if you can get that information by the end of the

hearing. We’re going to be here until 5:30 or 6 probably. So would

you instruct your counterparts from the Justice Department and

the White House to give us the names of the people who worked

on those affidavits? We want to talk to them. OK. Would you do

that?

Ms. NOLAN. Yes, sir.

Mr. BURTON. Thank you.

Mr. BARR. If the chairman would yield for a moment.

Mr. BURTON. My time has expired. Who’s next on the list here?

Mr. Barr, you’re next, because Mr. Waxman is not yet here.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Chairman, following on your question with regard to the timing of the latest so-called criminal probe, the record that you’ve established, Mr. Chairman, clearly establishes that the White House

knew there was a problem with these e-mails, their retention and

415

retrieval as early as January, late January, early February 1998.

Even if they maintained that somehow they did not know then,

clearly by the summer of 1998 they knew there was a serious problem.

We also know that the Justice Department had conversations

with Mark Lindsay in 1998. We also know now that the Justice Department knew directly from the civil proceedings that Judicial

Watch is handling—we’ll give them the benefit of the doubt—as

late as December 1998 that there was a serious problem here. Yet

the Department of Justice, for reasons professed to be unknown by

the Department of Justice witnesses today, cannot tell us any reasoning as to why the timing of their so-called criminal probe didn’t

occur until last week.

In the absence of some explanation as to why they sat on this

for month after month after month after month, Mr. Chairman, I’m

left, unfortunately, with the same conclusion that you have, that

the timing of the so-called criminal probe announced last week is

simply to thwart the discovery in the civil case or cases as well as

this committee’s legitimate probe.

And I agree with you, Mr. Chairman, that is something that we

ought to look into. Because if, in fact, the system whereby legitimate investigations are used legitimately to limit outside investigations while a legitimate criminal probe is going on in order to protect that information normally within the breast of a grand jury is

being abused simply to deny materials to a plaintiff or—and/or to

deny materials to a congressional investigation, Mr. Chairman,

that goes beyond simply incompetence to obstruction of justice and

obstruction of Congress. And that doesn’t even get to the obstruction that we went into last week with regard to witnesses testifying

under oath that they were intimidated into not disclosing evidence

that they had about this particular problem. So I consider the hearing last week and this followup hearing, Mr. Chairman, very, very

serious.

And again, the position, Ms. Nolan, that you’ve taken that Mr.

Ruff either didn’t know there was a real problem here or thought

it had just gone away or been resolved just does not make any

sense. White House lawyers knew there was a problem. The Office

of Administration knew there was a problem. The Department of

Justice knew there was a problem. It just strains credibility for you

to say that, in your view, Mr. Ruff thought this problem had been

resolved. It clearly had not been resolved, and that’s what’s particularly bothersome to us.

And yet you seem to be saying that the problem, as you all saw

it, had no effect on the subpoenas until you read about it I think

you said in the Washington Times in February of this year. Are

you having us believe that nobody within the White House communicates with people in the Office of Administration or nobody in the

White House counsel’s office communicates with people at the Department of Justice? Because each one of the offices knew there

was a problem.

Ms. NOLAN. Mr. Barr, I can’t affect what you believe. I can tell

you——

Mr. BARR. Yes, you can.

416

Ms. NOLAN. I can tell you that it is my testimony, it has been

my testimony through several hours here, that Mr. Ruff has informed me that he was aware that there might have been or was

a problem with a search, that it turned out there was not a problem with that search because the retrieved e-mails were duplicative, that he was not aware that there was an ongoing problem. I

can’t speak to what the Department of Justice knew or——

Mr. BARR. At what point did Mr. Ruff, in your opinion or your

view, realize that there was still a problem?

Mr. BURTON. The gentleman’s time has expired. We’ll let her answer.

Ms. NOLAN. We’ve talked to him in the past month, yes, sir.

Mr. BARR. He realized there’s a problem.

Ms. NOLAN. He realizes now that the Mail2 and letter D problems, computer problems, could have affected searches that were

conducted.

Ms. NOLAN. Yes, sir.

Mr. BURTON. Mr. Barr, we’ll get back to you. Mr. Waxman would

like to have his 5 minutes now.

Mr. WAXMAN. Thank you, Mr. Chairman.

I want to clarify for the record there’s been some question about

Mr. Haas’s testimony. And this is from the record from last week.

Robert Haas, with regard to the zip disk,

Mr. BURTON. OK, did you ever save any search responses or records on another

electronic media such as a zip drive? Question.

Mr. HAAS. Just the stuff I saved for the people with the subpoena right now last

week. I’ve never saved it on a zip drive for anybody.

Mr. BURTON. Never saved it on a zip drive or any kind of electronic device that

you might have had at home or something?

Mr. HAAS. No, sir. I don’t have a zip drive. I have a zip drive at home that is

currently broke, but I don’t have any—I just recently got a zip drive at work to

record these documents last week, but I don’t——

Mr. BURTON. The one at home though doesn’t have any information on it?

Mr. HAAS. No, sir.

So the central point was what he was asked about he said that

he had—the stuff he saved for the people with the subpoena right

now last week.

Now, I want to also make a point for the record about Tony

Barry or Daniel Tony Barry. The chairman made a perjury allegation regarding his affidavit which was submitted in July 1999.

Now, this affidavit was part of a civil suit brought by plaintiffs represented by Larry Klayman of Judicial Watch. Mr. Barry is a career civil servant with expertise in technical computer matters. I

understand that the affidavit was filed in response to complaints

by Larry Klayman regarding the efforts of the Office of Administration to reconstruct e-mails that existed before the establishment of

the Automated Records Management System, or the ARMS, in

1994. This reconstruction effort is separate from reconstruction related to the Mail2 e-mail problem that this committee has recently

been examining.

Mr. Barry’s affidavit that describes the 1994 reconstruction status should be taken in the proper context. It addressed questions

such as the status of the restoration and reconstruction process for

pre-July 14th, 1994 e-mail, the time and cost associated with conVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00424 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
417

ducting the e-mail search proposed by the plaintiffs in the civil lawsuit and the steps involved with such a search.

Now it’s true that the affidavit did not disclose the Mail2 computer glitch that occurred several years later. But, given the context of the affidavit, it’s hard to see how that omission would be

perjury.

It appears that the main point of the affidavit was to describe

the status of the pre-ARMS e-mail reconstruction and how searches

requested by the plaintiff would be conducted. In hindsight it

would have been a good idea to include information in the affidavit

regarding the status of the Mail2 problem. However, the omission

of that information is a far cry from perjury.

Then I understand an issue has come up with the Armstrong

case and what was the requirement placed on the White House.

And in that case—and I was able to read this from the case—

whereas Federal records are subject to strict document management regime, supervised by the Archivist, the Presidential Records

Act accords the President virtually complete control over his

records during his term of office. That’s from the Armstrong case.

Neither the Archivist nor an agency head can initiate any action

through the Attorney General to effect recovery or ensure preservation of Presidential records. So, it would appear that, even though

the case didn’t apply to the Presidential records, the White House

was still trying to create a system where they would treat the Presidential records the same as they would any other Federal records.

And then just on this point about the Justice Department

launching an investigation in order to keep a real investigation

from taking place, I think we all ought to remember that there’s

still an independent counsel, Mr. Ray; and he’s investigating

whether he got all the information to which he was entitled.

So even if you accept this theory that Justice is not doing the

job—and I don’t accept that theory that’s a huge leap—but if you

accept that theory, the fact of the matter is there is an independent

investigator out there looking to see whether the e-mails were

properly turned over and whether there’s information that the

independent counsel didn’t receive pursuant to its investigation.

I see my time has expired, Mr. Chairman. I’ll come back later

with another round.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman.

Ms. Nolan, I have low expectations; and if I do, I don’t get frustrated. I still don’t know who hired Craig Livingstone. And I’m

dealing with a White House that would send a President a memo

from Phil Caplan entitled, DNC Finances. And he said, ‘‘Of this

amount, $2 million will be used for campaign, $1.5 million for campaign winddown and compliance/audit, and $1 million for potential

fines.’’ So we had a White House that knew they were going to

break the law. I certainly knew a campaign that would have to pay

fines to do it.

So my expectations are pretty low. But I would like to try to get

some basic information. One of them is, I want to identify this document. You make reference to it. We sent a letter on March 21st

to James Wilson, the chief counsel.

418

Ms. NOLAN. Can you tell me what document you’re referring to,

Mr. Shays?

Mr. SHAYS. It’s NG–1.

Why don’t we put it up on the board? Just that first page is good

enough.

Tell me what this document is. This was sent to us by the associate counsel to the President, Dimitri Nionakis.

Ms. NOLAN. Nionakis.

Mr. SHAYS. Nionakis, thank you. So Mr. Nionakis sent this to us.

You made reference to it in your testimony. Tell me what this document is.

Ms. NOLAN. I’m sorry, sir. I don’t remember making reference to

it myself other than in response to a question, but I can.

Mr. SHAYS. Turn to the bottom of page 6.

Ms. NOLAN. Page 6 of my testimony.

Mr. SHAYS. Your testimony. I would like you to read it, read all

of 2.

Ms. NOLAN. Oh, yes, sir. I do remember this now.

Mr. SHAYS. Would you read it, please?

Ms. NOLAN. ‘‘Absent a search of back-up tapes, we cannot currently estimate how many e-mails were affected. Late Friday,

March 17, N-G counsel provided OA with a document that appears

to reflect that on June 18, 1998, an N-G employee reviewed the affected ARMS managed account on the server and counted the number of affected e-mails on the server at that time. I have been informed that OA and IS&T personnel were previously unaware that

that document existed or that anyone had estimated the number

of unrecorded e-mails. Although we cannot attest to the accuracy

of this document, we provided it to you yesterday.’’ Mr. SHAYS. Now, do you have any reason to doubt the accuracy?

Ms. NOLAN. No, sir.

Mr. SHAYS. OK. It says, ‘‘I have been informed that OA and

IS&T personnel were previously unaware that that document existed or that anyone had estimated the number of unrecorded

records.’’ That same language, ‘‘I have been informed that OA and

IS&T personnel were previously unaware that that document existed or that anyone had estimated the number of unrecorded emails,’’ we have two different ‘‘I’s’’ with the same sentence—that’s

6. Now, let’s just deal with—— [Exhibit 61 follows:]

419

420

421

Ms. NOLAN. I’m sorry, 61 is?

Mr. SHAYS. It’s just the same sentence. It’s just from Nionakis.

He said the same thing. That was in his letter of transmittal. It’s

interesting you both use the same sentence but ‘‘I’’ is you and ‘‘I’’ is him. So I want to know who you spoke with, who informed you.

Ms. NOLAN. Mr. Nionakis, sir.

Mr. SHAYS. So Mr. Nionakis informed you that OA and IS&T

personnel were previously unaware that that document existed or

that anyone had estimated the number of unrecorded e-mails.

That’s—— Ms. NOLAN. Previously unaware that anyone had.

Mr. SHAYS. Who told you?

Ms. NOLAN. Mr. Nionakis, sir.

Mr. SHAYS. So Mr. Nionakis says, I have been informed that OA

and IS&T personnel were previously unaware that this document

existed or that anyone had estimated the number of unrecorded emails. Would he tell me that you told him that?

Ms. NOLAN. No, sir, I don’t believe he would.

Mr. SHAYS. What do you think he would say?

Ms. NOLAN. I believe that he spoke with the general counsel of

the Office of Administration.

Mr. SHAYS. Now, this document has a lot of names in it. Why

don’t you just tell me what it means, that first page?

Ms. NOLAN. Let me make clear this is a document that a Northrop Grumman employee provided. It’s not something we produced.

Mr. SHAYS. You have no interest in this document?

Ms. NOLAN. I did not say that, sir. I just said I want to make

clear, if I’m going to answer questions, that it’s not something that

I produced or that I’m going to be telling you what I know from

the document.

Mr. SHAYS. Fair enough. I think that’s fair to point out.

My interest is just knowing if you have enough interest to know

about this document. Because really what the White House has

consistently done is it has simply chosen not to know information.

Then they don’t have to share information. So I’m interested

that——

Mr. Chairman, my time has run out. I wonder if my colleague

would yield me his 5 minutes.

Mr. LATOURETTE. I would be happy to yield it Mr. Shays.

Mr. BURTON. Mr. LaTourette will yield.

Mr. SHAYS. Let’s just take Dorian Weaver. It has 441, the number of 441.

Ms. NOLAN. I’m sorry, sir, where are you on it?

Mr. SHAYS. Third name down. What does that mean?

Ms. NOLAN. What does 441 mean?

Mr. SHAYS. Yes.

Ms. NOLAN. I believe that the 441 refers to the e-mails that were

not captured by ARMS.

Mr. SHAYS. So now if I turn to page 304 of that document—— Ms. NOLAN. Pardon, sir?

Mr. SHAYS. If I turn to page 304 of that document, I see on the

document Phillip Caplan, the same one I believe who wrote that

memo. I call it the ugh memo because alongside of it is the PresiVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00429 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
422

dent’s handwritten ugh when he learned that they would have to pay set aside $1 million for potential fines. So—but turn to this

document here. Do you see the name Phillip Caplan at the bottom?

Ms. NOLAN. Yes, sir.

Mr. SHAYS. What’s the number you see there?

Ms. NOLAN. I see 944 and 5559.

Mr. SHAYS. And may I make an assumption that that’s potentially 944 e-mails that he sent the White House that we haven’t yet

seen?

Ms. NOLAN. Again, you know, I’m not the creator of this document. I am not the best person to answer these questions.

Mr. SHAYS. No, you are the best person to answer this question.

Ms. NOLAN. The assumption is wrong. Because sir, it—my understanding is that the 944 reflects e-mails that came in to him, not

e-mails that he created.

Mr. SHAYS. E-mails that came in.

Ms. NOLAN. From outside the complex.

Mr. SHAYS. So we got some e-mails. We just didn’t get these emails.

Ms. NOLAN. We don’t know if we got these e-mails or not.

Mr. SHAYS. You probably don’t care to ever find out.

Ms. NOLAN. Sir, we have hired a contractor to restore the backup tapes and make them searchable so we can do that. I certainly

do care that we find—— Mr. SHAYS. Why should I feel moved by what you said when we

had Insight Magazine that a year ago talked about this and then

we had Washington Times that had a story—but this time, unlike

Insight, they have a name, Sheryl Hall. She broke the story, and

then you people tell us the problem. You didn’t come first. We had

to read about it in the newspaper, didn’t we?

Ms. NOLAN. Sir, that’s when I learned of the problem.

Mr. SHAYS. But isn’t it true——

Ms. NOLAN. No, I don’t understand what you’re saying is true.

Mr. SHAYS. Isn’t it true that this was a problem that existed for

a long period of time? The White House knew for a fairly extensive

period of time. We have testimony I believe from last week that

two personnel from the White House were told of this document—

you don’t have the document. OK.

The question I have is that the first time we learned about it was

through a newspaper story. And it’s your story that the first time

you learned about it was through the newspaper?

Ms. NOLAN. It is my testimony that the first time I learned of

it was with respect to the litigation. I don’t know if it was in the

newspaper.

Mr. SHAYS. When was the first time that John Podesta learned

of it?

Ms. NOLAN. As I testified earlier, John Podesta——

Mr. SHAYS. June 19th, 1998. That’s when he learned of it.

Ms. NOLAN. He learned of some problem, sir. I don’t know—I can

tell you this: In the past month, my understanding of the problem

has grown quite a bit.

Mr. SHAYS. What is the date on the front page of this document?

Ms. NOLAN. This document was provided to us less than 2 weeks

ago, sir. Less than 2 weeks ago.

423

Mr. SHAYS. What is the date of it? At the top of it?

Ms. NOLAN. I don’t see a date. Oh, 6/18/98.

Mr. SHAYS. Right. Now, I had made reference to you of 246,000

e-mails. And you said, well, you didn’t know how many. Why

wouldn’t you have counted these up?

Ms. NOLAN. Sir, this reflects the count that was done by Northrop Grumman employee on a particular day. There are 3,400

back-up tapes. There may well be e-mails on those that aren’t reflected here.

Mr. SHAYS. I understand. But I’m just curious why you wouldn’t

have wanted to know how many we were talking about. Are we

talking about 50? Are we talking about a few thousand? Why don’t

you have any curiosity to find out these—I would have wanted to

know, if I were you. I would have wanted to know how big the potential universe is.

Ms. NOLAN. Mr. Shays, I want to know, too. That’s why we have

a contractor, to look at those 3,400 or more back-up tapes and find

out. That’s the way we’ll know.

Mr. SHAYS. This document includes 247, give or take, 46,000 potential e-mails. Correct?

Ms. NOLAN. I don’t know that, sir.

Mr. SHAYS. Because you didn’t count them. Their numbers are

right here. You haven’t asked anyone to just add them up.

Ms. NOLAN. I have not added them up, sir.

Mr. SHAYS. You did not ask anyone else to.

Ms. NOLAN. I did not ask anyone.

Mr. SHAYS. How come?

Ms. NOLAN. Sir, I thought—you know, what I wanted to do is see

that we get those back-up tapes restored and searched, and that’s

what I’m doing. If you want to count e-mails on a particular day,

you can do that. But that is not going to answer the question.

Mr. SHAYS. Bruce Lindsay——

Mr. BURTON. Excuse me. I have the next round, and I’ll yield to

my colleague.

Mr. SHAYS. I mean, just going through them, my curiosity—— Ms. NOLAN. Can I answer two questions?

Mr. BURTON. If the gentlemen would yield, I understand that the

witnesses need to take a quick break, and if that be the case—— Mr. SHAYS. Let’s do that.

Mr. BURTON [continuing]. We’ll allow them, if we could, 5 to 10

minutes for that. And whatever questions you have of the Chair

we’ll answer when you come back.

Ms. NOLAN. Thank you very much, Mr. Chairman.

[Recess.]

Mr. BURTON. The committee will reconvene.

Mr. Shays, you have my time.

Ms. NOLAN. Mr. Chairman, can I make the——

Mr. BURTON. Yes, hold it just a second. Yes, ma’am.

Ms. NOLAN. You had asked or the committee had asked two

questions. I said I would try to get back to you today.

Mr. BURTON. You have the answers.

Ms. NOLAN. Sandy Paxton left the White House on January 4,

1999.

Mr. BURTON. OK.

424

Ms. NOLAN. And Michelle Peterson was the counsel’s office lawyer working on the case at the time that the Barry affidavit was

done.

Mr. BURTON. So she—— Ms. NOLAN. She worked on the case. I don’t know yet whether

she worked on the affidavit. But she was—she was the counsel’s office lawyer who was responsible for that case.

Mr. BURTON. Well, the thing is—— Ms. NOLAN. So if it was somebody in the counsel’s office it would

have been Michelle Peterson.

Mr. BURTON. The reason I would like to have a definitive answer

from both of you today is because we’re going to have more hearings, but I want to minimize those. If we bring more people in, we

say, it wasn’t me, it was somebody else. We have to go through this

again and again. I mean, we’re going to be consistent and follow

through to get as many of these answers as possible. So, Mr.

Raben, have you found out anything?

Mr. RABEN. No, I sent a gentleman to check, and we’re waiting

on an answer, sir.

Mr. BURTON. You’ll inform us as soon as you’re ready.

Mr. Shays.

Mr. SHAYS. Thank you.

Ms. Nolan, you may have misspoke, and I don’t want to try to

trap you into misspeaking. You said the first time you learned

about the problem was reading it in the newspaper on March—on

February 15th. Is that your testimony?

Ms. NOLAN. No, sir. You said that, sir. I don’t believe I said that.

I said that the first time I learned about the scope of the problem

was following the filing in the case. I was briefed in February. I’m

not sure—— Mr. SHAYS. Weren’t you briefed in January?

Ms. NOLAN. I was briefed in January, as I testified this morning,

about a post-presidency transition.

Mr. SHAYS. You were briefed that there was a problem with the

Mail2 issue.

Ms. NOLAN. I was briefed on the Mail2 and letter D problem but

not, sir—— Mr. SHAYS. So we found out after the story. You found out before

the story.

Ms. NOLAN. I did not find out the scope or nature of the problem,

no, sir.

Mr. SHAYS. So you said there were—the scope is 526 total users

affected. That’s a pretty large scope.

Ms. NOLAN. Earlier, sir, you thought that the scope was how

many e-mails——

Mr. SHAYS. No, but that’s the users. So your noninquisitive mind

is really demonstrated here.

Did you find——

Ms. NOLAN. That’s the first person who has accused me of that,

sir.

Mr. SHAYS. Well, I’m accusing you of it.

Ms. NOLAN. I hear it. I hear the accusation, sir.

Mr. SHAYS. And the accusation is very clear. You were given a

document ultimately that had thousands, hundreds of thousands of

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names. Let’s just go through some of these names. I would think

you would have wanted to go through it. Phillip Caplan, who wrote

the ugh memo, he had 944; Bruce Lindsay, 17; Betty Curry, 811.

Boy, I would love to see some of these e-mails.

Ms. NOLAN. I am informed, sir, that these e-mails—— Mr. SHAYS. I’m not finished. Erskine Bowles, 161; Ira Magaziner,

3,693; Bill Clinton, 2.

Now, see, the reason I’m speaking this way is it is only, you

know, that one memo from Mr. Caplan I’m sure people didn’t want

us to get when they acknowledged that they knew they were going

to break the law and be fined a million dollars potentially. So you

know, even one out of 246,000 might be very interesting for us to

see, might be pertinent to all these investigations.

What did you want to say?

Ms. NOLAN. Mr. Shays, I wanted to say, first of all, memos by

Mr. Caplan would have been captured because it’s only e-mail coming into the system that was affected by the Mail2 and letter D

problem.

Mr. SHAYS. Is it your testimony that he never sent e-mails from

outside the White House to the White House? He sent e-mails back

and forth from outside and inside? I mean, clearly you’re not saying

that to us.

Ms. NOLAN. It’s not my testimony. I have no idea what his practice was.

Mr. SHAYS. So do you want to withdraw the statement you just

made implying—— Ms. NOLAN. I wouldn’t like to withdraw it, sir, but I’m certainly

happy to be more specific. E-mail written by Mr. Caplan in the

EOP would have been captured by an ARMS search, as I understand the ARMS system.

The second thing I would like to say—— Mr. SHAYS. If he sent them outside, they wouldn’t be captured.

Ms. NOLAN. No sir, they would. It’s only e-mail that came into

the complex. That’s exactly what I mean about how difficult it is

to understand this problem.

Mr. SHAYS. If he sent them from outside to in.

Ms. NOLAN. If he sent them from outside to in during the relevant periods, they would not have been captured by ARMS. Unless—but they may have been left on the server, they may have

been captured because they were forwarded or because they were

replied to with history.

The other thing I wanted to say about these numbers is that I

understand that the numbers refer to how many incoming e-mails

there were on somebody’s server, not necessarily how many incoming e-mails had not been captured by ARMS.

Mr. SHAYS. So your point is that the number is going to be less,

and I agree with that. I mean, you may find that this number of

246 will be reduced because you have an e-mails found in individual PCs. You may find it’s reduced because you have e-mails found

attached to sent e-mails with history. You find it reduced because

e-mails found in printed files. You may find it reduced because emails retrieved from back-up tapes. All of that may be true, but

given the extraordinary number of e-mails they’re probably going

to be thousands and thousands and thousands that aren’t.

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Mr. BURTON. Mr. Shays, we’ll get back to you. We are now going

to the long-suffering Mr. LaTourette.

Ms. NOLAN. May I make something clear, sir?

Mr. BURTON. Sure.

Ms. NOLAN. The left column, as I understand it, is total e-mail;

and the column under the name on the record we’re looking at, as

I understand it, is unrecorded e-mail.

Mr. BURTON. Before we go to Mr. LaTourette, I just want to clarify one point that you made. You said that a contract had been

signed and that it was going to take approximately 6 months and

that they were going to be going through these e-mails in batches,

starting with the most current and going backward, is that correct?

Ms. NOLAN. The timing of what e-mails will go through or what

back-up tapes has not been determined yet, sir. It is correct that

a contract was signed this week and that—— Mr. BURTON. Who will make that determination?

Ms. NOLAN. We will—the counsel’s office will work with the various investigative bodies and the Office of Administration who’s administering the contract.

The first thing they have to do is get the back-up tapes on a system, as I understand it, and figure out what dates they reflect and

that kind of thing. We just don’t have that information yet.

Mr. BURTON. We’ll need to talk to you about that later.

Mr. LaTourette.

Mr. LATOURETTE. Thank you, Mr. Chairman.

Ms. Nolan, I was out of the room after the votes. Did you find

the information that Mr. Waxman’s question—that is, how many emails from the Office of the Vice President have been turned over?

Ms. NOLAN. I haven’t gotten that answer yet, Mr. LaTourette.

Mr. LATOURETTE. When you do do that, could I add a couple of

additional requests, that is, that in—that sort of you can tell us

how many were from the Vice President himself, Mr. Gore. And,

two, if you could supply to the committee in writing the names of

the three e-mail users who have accounts created after 1997 but

who are not being captured by the ARMS system from the Office

of the Vice President—if you could supply that to the committee,

I would appreciate it.

Here as I have been listening that the problem that I continue

to have and I think some of my colleagues continue to have is

that—over this assertion that when Mr. Haas does this manual

search that everything that he finds is duplicative. Here’s why I

have trouble with it.

Mr. LATOURETTE. The reason that this problem became—people

became aware of it at all was Mr. Barry finds two—one side of a

conversation that Monica Lewinsky is having with someone in the

White House. And so not within the White House complex is this

missing e-mail, that is, the one that’s come in, that’s how this problem came about. So for someone then to go on to the server and

say that you dredged up, with the name of Lewinsky or Betty

Curry or whatever, you dredged up this entire body of information,

that can’t be right because the problem is the stuff that was coming in isn’t there any more.

And the reason is, just to go one step further, when we were

talking to Mr. Haas, he said that when the White House got a docVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00434 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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ument request they would ask for people—for instance, if there was

something relative to your computer, could you please check your

hard drive and see what’s located there. But if you deleted it before

the end of the business day, when the server kicks in to run the

back-up tape, it’s gone. I mean, it’s nowhere unless it’s been captured by ARMS, and these things weren’t captured by ARMS. So

they are just gone.

And that’s the difficulty that I think that we’re having when you

say that it is duplicative. And I just want to turn your attention

to——

Ms. NOLAN. Mr. LaTourette, may I just mention that it is gone,

unless, as I said, it was forwarded or replied to with history and

that kind of thing.

Mr. LATOURETTE. Again, I’m sort of computer stupid, but I know

that at the end of every day when I shut down my Microsoft exchange or whatever it is, it deletes everything in my deleted section, they’re gone, and then the server in my office backs things up

at five o’clock every night. So anything that I’ve deleted from my

computer during the course of the day isn’t backed up anywhere,

it’s gone, you’re right, unless I’ve maintained it or forwarded it or

done something else.

But to suggest that that happened to all of them I think is not— doesn’t comport with what the reality of the user system is.

If you could look at an exhibit that we’ve marked WH–3—— Ms. NOLAN. Let me find it.

Mr. LATOURETTE. Sure.

Ms. NOLAN. I have it.

Mr. LATOURETTE. Do you know who the author of that document

is, WH–3?

Ms. NOLAN. They were drafted by Dimitri Nionakis, an associate

counsel.

Mr. LATOURETTE. All right. And, specifically, if I could turn your

attention to the beginning and something on page two called the

Affect on Searches to Respond to Subpoena Requests. About the,

oh, the second question under that: ‘‘but if you didn’t search these

e-mail, you haven’t really complied with all the subpoena requests.’’ The answer is: ‘‘that isn’t really accurate. When we search for responsive materials, in addition to the ARMS search, all individual

users are told to search their own computer records. So a search

should have covered everything on the server at that time, including any undeleted incoming e-mails.’’ Which is what we’ve been

talking about, any undeleted incoming e-mails.

The next question is: ‘‘what if they were deleted before the search

of the server?’’ And then the answer is: ‘‘then it would be the same as someone

tossing out a piece of paper that they didn’t need anymore.’’ ‘‘did you search the server to see if they were still there?’’ And then this question is the one I want to—the answer is: ‘‘as

we’ve told congressional committees and independent counsel, the

server could only be searched manually, and we don’t have the

time or the funds to perform manual searches for every subpoena

request.’’

And this document was prepared for what, the White House

counsel’s office?

428

Ms. NOLAN. It was prepared as talking points, I believe, for press

discussions. It only stayed in draft. We didn’t use it. So we never

finished it.

Mr. LATOURETTE. But the fact of the matter is, in response to

subpoenas or requests, be it from a court or a congressional committee, as I understood it, a memo would go out and say, hey, we’ve

gotten a subpoena, please search your hard drives. And people

would look at their hard drives. But if they weren’t there, we

wouldn’t find them. But there was no obligation then, nor was anything done to search the servers because of the time and expense.

Ms. NOLAN. Yeah. It seem like that there was some confusion

about that.

I’d like to try to clarify it if I can. I am not sure my computer

expertise is any different from the one you said you have.

When an EOP user turns on his or her computer, there are email accounts, there are word processing accounts. The e-mail accounts—my e-mail, when I open my computer and turn it on and

go to my e-mail, all that e-mail actually resides on the server. It

doesn’t reside in my hard disk on my PC. But if I’m told to search

my e-mail, I go to my e-mail account and search that e-mail. It

physically resides on the server, but to me and to any average, normal person, I think, it looks like that is the e-mail on my computer.

So there’s a technical difference between what’s on your PC and

what’s on your server but not a real-life difference to people who

are doing the searches of their own computers.

Mr. LATOURETTE. If I could just ask one more question, Mr.

Chairman.

This is the point. I think you’re exactly right, and you do appear

to have as much knowledge as I do about computers, but that stuff

is on the server. It’s not on your computer after you’ve gotten rid

of it.

In other words, if you sent me an e-mail, I open it, I write back

to you, but then I delete that string, that correspondence, it may

be on your server and my server—not mine if you have sent the

e-mail—but it’s no longer on my computer, and there’s no way I

can retrieve that from my computer.

Ms. NOLAN. If I delete an e-mail, I’m deleting it from the server

as well as from my computer. There’s no difference.

Mr. LATOURETTE. Unless—OK, unless—I would say this. Unless

you left it at the end of the business day, the system backs up.

Ms. NOLAN. Then it’s on a back-up tape, sir, but it would not be

on the server anymore.

Mr. LATOURETTE. OK. My time’s up. I’ll come back later.

Mr. BURTON. OK. Mr. Barr.

Mr. BARR. I’d like to yield time to the gentleman from—where is

it? Somewhere in the Midwest, Ohio?

Mr. LATOURETTE. It’s Ohio, Mr. Barr. It is right on top of Georgia almost. And I thank the gentleman for yielding.

I want to talk a little bit about something we were talking to Mr.

Mark Lindsay about when we was here last week, and that is, he

talked about a prioritization list. In other words, although what

was the matter with the system didn’t apparently come to Mr.

Ruff’s attention, according to what he’s told you, Mr. Mark Lindsay

had a very good understanding of, that this was a two part probVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00436 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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lem. One is, and they called it stopping the bleeding, that is, to

make sure that all incoming e-mail was captured by the ARMS system, and that’s what cost $600,000, and they worked real hard on

them, and some people said they called it project X after the X files

and all that other business.

But the second part was the reconstruction of all of the stuff that

hadn’t been captured in over 2 years, and Mark Lindsay understood that, and he indicated that he had a series of meetings with

people, and this was sort of like when one of those honey-do lists

that, OK, we have to do this with our computers, we have to reconstruct the e-mails that we didn’t do to put them into the ARMS

system, we have to do that. And I think he used the word missioncritical. He said that there was a list established that identified

mission-critical things that needed to be done.

One thing that he recalled was there was a Cabinet meeting, apparently, and the Vice President said, you know what, there’s going

to be a poster child for Y2K non-compliance, and I’m going to tell

you right now, it’s not going to be the White House, and so you

guys get your act together and make sure we’re all squared away.

So Mr. Lindsay spent a lot of time getting Y2K compliant. He did

a lot of other things, but he told us last week that he knew that

this was a problem, but he didn’t do anything to reconstruct this

MAIL2 server problem because it wasn’t mission-critical. Do you

have any knowledge of that whatsoever?

Ms. NOLAN. I have knowledge of something around that, Mr.

LaTourette.

Mr. LATOURETTE. Why don’t you tell us what you know?

Ms. NOLAN. That—it is my understanding that the Office of Administration made a determination that it would first do all necessary Y2K compliance and then begin the reconstruction of the email. It’s my understanding that they thought of it as a historical

matter, a Presidential records historical matter and Federal

records, and they were really thinking of Federal records, I think,

and that the Office of Administration, therefore, did not see this as

something that had to be done immediately.

Mr. LATOURETTE. All right. Knowing what we know today as we

all sit here and the knowledge that you’ve gained, that probably

wasn’t the smartest decision in the world in terms of it was something that needed to be done to adequately respond to subpoenas

and other requests for documents from the White House, didn’t it?

I mean, we’re not unclear on that?

Ms. NOLAN. I think there was a disconnect between those who

were doing the searching for subpoenas and those who were handling the computer issues, yes, sir.

Mr. LATOURETTE. I think that’s right. And one of the things that

came up in the hearing that—it’s not comical because it’s—again,

there was a lot going on with this administration in terms of people

wanted documents and were entitled to documents relative to investigations, legitimate investigations.

One of the things that—there’s a document, I think it’s labeled

exhibit 80, that at the time that people were being told that this

wasn’t mission-critical and we were going to do other stuff, Northrop Grumman was directed to get the White House Christmas

430

card list in order rather than reconstruct the problem with the

MAIL2 server. That’s right, right?

Ms. NOLAN. I’m sorry, sir. I hadn’t seen that document before.

Mr. LATOURETTE. OK. Well let me—maybe if the fellow who is

helping you can get out exhibit 80.

[Exhibit 80 follows:]

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432

433

434

435

436

437

438

439

440

441

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Ms. NOLAN. Yes.

Mr. LATOURETTE. And if we can go to—it’s a multipage document, and I think I’d like you to go to page 4, and that indicates

that the Lotus Notes team continued the development of the holiday card application, and they made a couple of presentations on

August 24th they developed to EOP management. And who is the

Executive Office of the President’s management team that the holiday card package would have been presented to?

Ms. NOLAN. The management of the Executive Office of the

President is the Office of Administration. I don’t know what team.

Mr. LATOURETTE. OK. Then on August 26th they made a second

presentation of how swift these Christmas cards were going to be

to Ada Posey, who was the director of the Office of Administration,

is that right, or at least according to exhibit 80?

Ms. NOLAN. That’s what it says there.

Mr. LATOURETTE. Did you have any knowledge as to how much

money the Christmas card package cost the White House to get

that up to speed but we couldn’t reconstruct the missing e-mails?

Do you have any idea what it cost?

Ms. NOLAN. I don’t know anything about that.

Mr. LATOURETTE. Is that something you could find out for us and

perhaps get back us to about?

And at the same time, sadly, the President has been quoted in

the press saying that, you know, this is going to cost a lot of money

to do this. And if people knew how much time and money—and I

just find it to be a little odd that we’re being told that there wasn’t

enough money, there wasn’t enough time, some people didn’t even

know there was a problem, but apparently we did have time to

make sure that our Christmas cards got out that particular year

rather than responding to subpoenas from relevant courts of jurisdiction and no less than three committees of the U.S. Congress.

And I thank you, Mr. Chairman.

Mr. BURTON. The next gentleman that we’re going to hear from

is Mr. Horn, but before we go to Mr. Horn I want to clarify one

thing regarding Mr. LaTourette’s questioning. You said they

thought of it as historical. Who is they?

Ms. NOLAN. The Office of Administration, sir.

Mr. BURTON. The Office of Administration. What was the name

of the person?

Ms. NOLAN. Sir, I think we were talking about Mr. Lindsay.

What I meant was that they were thinking of the reconstruction

issue as one that had to be done for historical purposes.

Mr. BURTON. But not of an immediate nature or anything like

that?

Ms. NOLAN. I believe, sir, this is where the disconnect or

miscommunication was, that he—he believed that the counsel’s office understood the nature of the problem and was handling anything with subpoenas. The counsel’s office did not. I think that’s

what happened, sir.

Mr. BURTON. Well, Mr. Lindsay and Ms. Crabtree, according to

the people from Northrop Grumman, were very concerned. The people from Northrop Grumman said that they felt like they were in

jeopardy of their jobs, and some even jail, if they said anything

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even to their spouses, some of them said. So for you to say that

they only thought of it as historical really kind of boggles my mind.

Ms. NOLAN. I’m sorry, sir. I wasn’t talking about the entire problem. I was talking about doing the reconstruction—when the reconstruction needed to be done by.

Mr. BURTON. Mr. Horn.

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

Let me ask you a series of questions that maybe can clarify in

some of our minds the problem of the server and the e-mail and

the complexity of it. As I understand it, the White House e-mail

users delete their own e-mail, don’t they, when they are tired of it?

Ms. NOLAN. Yes, sir, they can delete their own e-mail.

Mr. HORN. And that doesn’t go through a server, does it?

Ms. NOLAN. It resides on the server until they delete it.

Mr. HORN. OK. But they have the control of bringing that message back and getting rid of it?

Ms. NOLAN. They have control of deleting it. They don’t—once it’s

deleted, they don’t have control of getting it back, no, sir.

Mr. HORN. In fact, they’re encouraged because of the computer

space restraints, isn’t that it, the old problem of not enough memory?

Ms. NOLAN. Yes, I think that’s right, not to retain too much email on the server.

Mr. HORN. So when individual computer users search their computers in response to a subpoena they aren’t necessarily going to

find all the responsive e-mails on either the computer or the server.

Where are they? Let’s assume something was there, where is it

likely to be found? On the server or on that computer or both?

Ms. NOLAN. Sir, they’re the same thing for purposes of an EOP

user. The user turns on his or her computer. To get to your e-mail

all you’re really seeing is what’s on the server, your account on the

server. So what you see on your computer—unless you actually

save it to the hard drive, what you see on your computer is what’s

on the server.

Mr. HORN. Are there other areas that they can park messages

besides that server that relates to—— Ms. NOLAN. You could save it to the hard drive, as I understand

it, sir.

Mr. HORN. OK. The hard drive that’s related to that computer

directly?

Ms. NOLAN. That computer.

Mr. HORN. All right. But are there other places in the White

House where they can put some of these messages? Say they didn’t

want to delete them because they might use them sometime and

want them and yet they could delete some from the server, let’s

say, is there another server around? Is there another system

around where they can plant that message? What’s your experience?

Ms. NOLAN. I don’t think so, sir. I’m not sure I understand the

question, but if I do—— Mr. HORN. The question is very simple.

Ms. NOLAN. If I do, you could print out the e-mail, you could save

it in paper file. The ARMS system, when it operates as we understood it to operate, would have captured it, and it would always

444

stay in the ARMS system, but if the ARMS system isn’t working,

then other than sending it electronically somewhere else, just forwarding it or printing it out, I’m not aware of any other place to

keep it.

Mr. HORN. Well, a lot of people would do, as you say, a printout

because they might want to say this is there and it’s under my

nose, in my desk and that kind of thing.

To your knowledge, when the request for the subpoenas came in

and we needed some of that and other investigations needed some

of that by either keyword name or whatever or a date period when

something happened—and we’re talking here really back certainly

to 1996–1998 and when you go into Waco, it gets back to 1993, but

it might have been something said between 1996 and 1998—so how

did the counsel’s office deal with that? Did they say, look, here are

some of the keywords and let’s print them out if they’re on your

disk? How did it work with most people?

Ms. NOLAN. The counsel’s office would send a directive to the affected entities in the EOP complex directing that people search

their files, whether in paper form, computer form or any other

form, and then in addition—so each individual would be responsible for looking for those requests, and we would generally just indicate what it is that the subpoena has requested, what the document request is. And then, in addition, a White House lawyer

would work with IS&T to develop a keyword search to search electronically on the ARMS system.

Mr. HORN. Now, did that happen for what period, where you say

ran a tape and then you searched the tape with a keyword index?

Ms. NOLAN. As far as I know, there was no searching of tapes.

The ARMS system is an on-line retrieval system, and so that would

be searched, and people would look at their individual paper files

or computer files.

Mr. HORN. I would think that one of the problems here is that

the counsel’s office or the Office of Administration, working with

the counsel, because they would know how the computer system

works, that they would be able to lay out a pattern as to how you

get that information, and I would think they would say to everybody, if you’re on the system and you’re involved with this name

or that name, print it out, and they didn’t do that, did they?

Ms. NOLAN. When there was a document request, people were directed to search their—for computer records, if they found them,

they would print them out and provide them to the counsel’s office

for production.

Mr. HORN. Does the counsel send them back and say, this isn’t

what is subpoenable? Or what was the counsel’s role in all this?

Ms. NOLAN. The counsel’s office then looks through material to

determine if it’s responsive to the subpoena and either produces or

notifies the committee if there are privilege questions of what

records it has. But when people do searches, they often come up

with things that would have the right keyword or the right name

but aren’t related at all to the subpoena request, especially when

you get into some of the broader ones, and so the counsel’s office

role is to determine if documents are responsive.

Mr. HORN. It sort of comes to mind that it seems to me the counsel is at the point of where they can take evidence and just get rid

445

of it because they have got the print, they say, oh, well, that isn’t

what they want, bang, good-bye to it. So did they send it back to

some of the people with the servers and the computers so—and

who was to take it off the particular drums, if you will, for want

of another word? Who would take that message off the server when

they’d done the printout? And what was the pressure to sort of get

sudden memory by sort of moving in on the disk and getting more

space and with it goes a lot of messages? How much did that occur?

Any occurrence of that, that you know of? Did people just get a big

laugh out of it?

Ms. NOLAN. Mr. Horn, I am not aware of anything that would

suggest that the counsel’s office gets rid of documents. It produces

thousands and thousands and thousands of them. It is true that

the EOP like, as far as I’m aware, any organization I’ve ever been

a part of routinely encourages people when server space gets low

to delete unnecessary e-mail, to save e-mail that they still need,

but that’s routine. There’s nothing the least bit nefarious about

that, sir. That happens in every organization.

Mr. HORN. Does that happen on a 6-month routing there where

they say loosen up the thing?

Ms. NOLAN. I have been there I think almost 7 months. I don’t

know if we’ve gotten such a notice in the time I have been there.

I could check and see when the last one was.

Mr. HORN. Do you know from 1996 up did they do that or did

they increase the amount that they wanted wiped off the computer

or the server?

Ms. NOLAN. It did happen at some period, but I don’t know how

often, sir. I just don’t know.

Mr. HORN. Can you sort of find out and let us see some of those

memos that say for the sake of more memory we’d like you to get

rid of messages you don’t need to have there?

Ms. NOLAN. I know we have produced samples of those. I’ll try

to make sure that we have all of them, sir.

Mr. BURTON. The gentleman’s time has expired.

Mr. Shays.

Mr. SHAYS. Ms. Nolan, I want to just clarify a little bit better

why you didn’t come and tell this committee when you had a briefing in January about the problem. What did you learn from the

Washington Times story of February 15th? What did you learn

about then that you didn’t know before? It seems to me the only

thing you really learned was that there was someone who had gone

public. What did you learn?

Ms. NOLAN. Sir, what I learned when the filing was made in the

case was that there might—that there was—I then learned from

OA staff that there was a continuing situation in which incoming

e-mail was still not on ARMS.

Mr. SHAYS. Let’s forget the continuing. The bottom line was,

there was still e-mails that may be pertinent to some independent

counsel, special counsel, investigative committee. You knew that

before, so that would be relevant.

Ms. NOLAN. No, sir, I did not.

Mr. SHAYS. You did not know what?

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Ms. NOLAN. I did not know that there were e-mails that would

have been pertinent that had not been produced or could not be

produced.

Mr. SHAYS. It is your testimony before this committee that this

problem of a MAIL2 configuration that, when you were briefed,

that there were—it was in that briefing you were told there were

no outstanding e-mails that hadn’t been forwarded to the committee?

Ms. NOLAN. I was briefed——

Mr. SHAYS. It’s a stretch.

Ms. NOLAN. I was briefed, sir, about an issue that they were

going to do reconstruction for the Presidential or the Federal

Records Act. I did not understand at the time it was a very——

Mr. SHAYS. What didn’t you understand? I don’t understand why

you wouldn’t understand. The bottom line was, there was this bottomless pit of e-mails that simply weren’t being recovered.

Ms. NOLAN. I was not told that there was a bottomless pit of emails that weren’t being recovered.

Mr. SHAYS. So let’s just say some e-mails.

Ms. NOLAN. I was told that there had been a problem. They were

reconstructing or going to reconstruct——

Mr. SHAYS. Reconstruct means that they needed to capture these

e-mails that were still outstanding. Why wouldn’t the committee

have been told that you were trying to reconstruct——

Ms. NOLAN. I did not understand that, sir.

Mr. SHAYS [continuing]. So you could find the e-mails? I don’t get

it.

Ms. NOLAN. I understand you don’t get it. I don’t know how to

say this a different way or to say it uninterrupted, but what I have

said, and it is my testimony, that I was given a briefing, it was in

a meeting for a post-presidency transition issue. It was very brief,

and it was that there was a problem. They were—they did discuss

reconstruction. I did not understand——

Mr. SHAYS. I understand what reconstruction means. What is reconstruction? I just want to know what reconstruction means.

Ms. NOLAN. Can I be permitted to finish what I’m saying first,

sir?

Mr. SHAYS. Sure. But then tell me what reconstruction means.

Ms. NOLAN. I will finish what I’m saying, and then I will answer

your question, sir, but I don’t find that I can answer your question

if halfway through it you ask me another question. I feel like I’m

not able to tell you what I know. You obviously choose not to believe me. I can only testify what happened and what I know.

Mr. SHAYS. Don’t lecture me. Just tell your story. What’s your

story?

Ms. NOLAN. Sir, this is my testimony.

Mr. SHAYS. What is your testimony?

Ms. NOLAN. My testimony is that I was given a briefing by several people from the Office of Administration on January 19th, I

believe is the date. It was regarding a number of post-presidency

transition issues. At that time, they informed me about a MAIL2

and letter D anomaly or problem, I believe is what they called it.

I believe I was told that they were reconstructing, and my underVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00454 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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standing of reconstructing was that they had tapes somewhere that

they were going to put on a different system.

I did not understand at that time and I am confident that other

people in that meeting did not understand at that time that there

had been or was an ongoing problem with regard to ARMS

searches for subpoenas. It seems very clear now that those were

the same problems. It was not clear to me in that very brief meeting on January 19th that that was the case.

Mr. SHAYS. But reconstruct sounds like they’ve got a problem. It

means something to the effect that they don’t have certain e-mails

and they have got to reconstruct them. It’s your testimony that you

did not realize that there were e-mails that were not being made

available? Is that your testimony?

Ms. NOLAN. Mr. Shays, that’s what I’ve testified, yes, sir.

Mr. SHAYS. OK. So now tell me tell me what you learned afterwards.

Ms. NOLAN. They were telling me about a Federal records issue,

about Armstrong compliance, which, as I’ve testified, is not—does

not—Armstrong itself does not apply to the White House and Presidential records. I did not understand this to be a problem affecting

White House searches of documents.

Mr. SHAYS. And your testimony is that everyone else in the committee—in that briefing had the same impression you had?

Ms. NOLAN. No, sir. I think the people who did the briefing from

the Office of Administration understood—— Mr. SHAYS. So is the Office of Administration the White House?

Ms. NOLAN. It’s part of the Executive Office of the President, sir,

yes.

Mr. SHAYS. I’m being a little facetious. So the White House knew,

correct?

Ms. NOLAN. Sir, you asked me what I knew. That’s what I can

testify to, and it’s not—it is my understanding that I and no one

else in the counsel’s office who were responsible for producing documents knew.

Mr. BURTON. The gentleman’s time has expired, and I will yield

my time or part of my time to the gentleman.

Mr. SHAYS. Just a minute. You are testifying that people in the

White House knew, you just didn’t know?

Ms. NOLAN. People in the Executive Office of the President, sir,

knew. I don’t know that anyone in the White House office knew.

Mr. SHAYS. The Executive Office of the President, I make that

as an assumption that that is part of the White House. You’re not

in the White House building.

Ms. NOLAN. The White House is part of the Executive Office of

the President.

Mr. SHAYS. So are we going to get into a semantics argument

that the White House didn’t know because it was just the administrative part of the White House?

Ms. NOLAN. Sir, you asked me who I knew knew. I’m telling

you—you can characterize that as the White House. I am telling

you that the White House counsel’s office and, as far as I know,

no one in the White House office knew. People in the Office of Administration and the technical people clearly did know. That’s the

disconnect I’ve testified to.

448

Mr. SHAYS. OK. And I just will make this last question. It is your

testimony that the people in the Office of Administration knew but

that no one in the counsel’s office knew; and, therefore, because

you all didn’t know, you had no obligation—the White House had

no obligation to notify the various committees that there were documents that they said had been given that hadn’t been given.

Ms. NOLAN. It’s my testimony, sir, that the people producing documents did not know that there was a problem, and I believe, but

I don’t know, you had the people from the Office of Administration

here last week, that they did not understand that the counsel’s office and the people producing documents did not know.

Mr. SHAYS. Since I’m on the chairman’s time I want to yield

back, but just let me ask you this. The people who are producing

documents, define to me who they are.

Ms. NOLAN. The people in the counsel’s office, sir.

Mr. SHAYS. Why did you say the people producing the documents

instead of just saying the counsel’s office?

Ms. NOLAN. I had said that before, sir. I wasn’t sure you had accepted that as a description, so I was trying to give another.

Mr. SHAYS. OK. Thank you very much.

Mr. BURTON. I’ll just take a few minutes here.

You know, I think, with all of the discussion, people lose track

of where we are. We had a hearing last week. Five people from

Northrop Grumman said that they felt intimidated when they

started talking to Ms. Crabtree and Mr. Lindsay about the problem

with the missing e-mails. Three of them said they thought might

even be threatened with jail. One of them very directly felt that.

Another said she’d rather be insubordinate than go to jail. So there

was a definite fear.

Mr. Lindsay took this information to Mr. Podesta. They wrote a

memo. Mr. Podesta explained the situation to Mr. Ruff. I believe

Mr. Lindsay—there was apparently a meeting, and it just seems

inconceivable that the chief counsel to the President would not

know the severity of the problem. It just doesn’t—it boggles my

mind that he wouldn’t know.

Now when Mr. Ruff left, and we’re going to have Mr. Ruff before

the committee, I feel confident, because you can’t recall—I mean,

he evidently hasn’t given you all the information. But it seems to

me that when Mr. Ruff left office he would have passed on to his

counterpart who was taking over, you, Ms. Nolan, some of the

problems that the chief counsel’s office had to deal with, and it

seems like he would have given you a fairly comprehensive analysis of this problem with the e-mails.

And, yet, when we’ve talked to you today, it feels like—I feel like

you really didn’t know all that much about it. You had a cursory

knowledge. Is that correct?

Ms. NOLAN. Sir, I had no knowledge until the January 19th

briefing.

Mr. BURTON. So Mr. Ruff never even talked to you about it?

Ms. NOLAN. Mr. Ruff, as I’ve testified, I don’t believe understood

there was a problem. I think he would have told me—had he realized there was such a problem, I am confident Mr. Ruff would have

told me.

449

Mr. BURTON. Unless perhaps he thought that the problem wasn’t

going to raise itself. You know, the thing is, Mr. Lindsay knew

there was a problem; Ms. Crabtree knew there was a problem, very

serious problem; the people from Northrop Grumman knew there

was a problem because they felt threatened. Mr. Lindsay talked to

Mr. Podesta and we believe with Mr. Ruff. I cannot believe—— You know, Mr. Lindsay said he didn’t remember the phone conversation, and yet 2 days later he participated in writing a very

comprehensive letter to Mr. Podesta, a memo, going into all the details. I just can’t believe that there’s this big disconnect over something as significant as hundred of thousands of e-mails, especially

in view of the fact that a whole host of committees, independent

counsel and even the Justice Department had subpoenaed all of the

documents pertaining to a whole host of different investigations.

And for everybody to say, we didn’t know, we didn’t think it was

that severe, and the chief counsel of the President who is supposed

to be watching out for him and advising him on legal matters

wouldn’t be well aware of this. It doesn’t wash. There’s something

there that’s not washing, and I guess that’s the problem that I feel.

And I see my time has expired.

Mr. Barr.

Mr. BARR. Ms. Nolan, let me try and get very specific here, if you

would, with me, please. On what day did you realize that you were

going to have to do something to make sure that in responding to

subpoenas from the Congress information had not been withheld?

Ms. NOLAN. I don’t know what day it was, Mr. Barr. What I

know is that at some point last month I realized that document

productions that the counsel’s office had done would have included

searches of ARMS in which incoming e-mail could not have been

searched and that we would need to review what document productions we did and figure out what we were going to do and could

do about it.

Mr. BARR. It was not until last month?

Ms. NOLAN. In February, sir.

Mr. BARR. OK. After the newspaper articles came out?

Ms. NOLAN. After the filing was made, yes, sir.

Mr. BARR. After what?

Ms. NOLAN. The filing was made in the case, sir, yes.

Mr. BARR. In the civil case?

Ms. NOLAN. That’s right.

Mr. BARR. OK. Are you familiar with the various civil cases that

have been filed against the White House or Executive Office, whatever, by Judicial Watch, including my case against the administration?

Ms. NOLAN. I’m aware there is a case, sir, your case, and I’m

aware there are other cases. I don’t know that I could list all of

them.

Mr. BARR. One of the theories on which my case was filed and

is still an active case is violation of the Privacy Act. Pursuant to

discovery requests, a great number of documents, files as it were,

on me, about me that have been accumulated by various folks at

the White House were submitted pursuant to discovery. That case

was one that was filed under the Privacy Act. If in fact your position prevails that the Privacy Act does not cover files that the

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White House maintains on various individuals, why then would the

discovery have gone forward and those files furnished pursuant to

discovery?

Ms. NOLAN. As I understand it, sir, that is the legal issue in the

case. The White House and Executive Office of the President have

an obligation to provide documents in a case so that the courts can

decide the issue.

Mr. BARR. Are you all essentially then trying to have it both

ways? I’m not quite sure. If you all felt secure in your legal interpretation, and it’s one that I disagree with because it flies in the

plain language of the Privacy Act which does not carve out any exemption for the White House or the Executive Office of the President for e-mails or for hard paper files, why would you all have actually furnished—pursuant to a Privacy Act case, why would you

all have furnished discovery instead of just relying on the position

you’ve enunciated, that the Privacy Act doesn’t even apply to us?

Ms. NOLAN. Mr. Barr, that case was filed in a court of law. We

were requested to make production of documents, and we did so.

That I think is exactly what we do when we get subpoena requests

and document productions. We assert and continue to assert that

we do not believe that the White House is subject to the Privacy

Act, but we have never asserted that that enables us to ignore a

lawful subpoena. We do searches, and we make a good-faith effort

to comply with those subpoenas, and we did so in that case.

Mr. BARR. Now, though, the White House, since the case has

been reassigned from Judge Lamberth, a judge that takes a somewhat different view of the Privacy Act and various other laws as

they relate to the President, now that that case has been assigned

to a different judge, the White House has taken a very different position and is resisting. Do you see any inconsistency there? In other

words, it seems to fall—the White House response to Privacy Act

cases and discovery therein seems to fall not so much on principled

grounds as it does on whether the case is before a judge that will

hold y’all’s feet to the fire.

Ms. NOLAN. Mr. Barr, I don’t think that’s right. I think that— I just don’t know the particulars of this case or the other litigations. Obviously, other lawyers in the office deal with those on a

day-to-day basis, but I think that it’s very important to understand

that, as this committee knows, there are times when the documents are produced, there are times when there are privileges,

there are times when we discuss different timing for productions.

There are various reasons why productions are made when they

are and, depending on what the legal argument is, whether the

legal argument is an assertion that documents don’t have to be produced or the legal argument is on the merits itself. So I can’t speak

to that particular case, but I just wanted to make that clear.

Mr. BARR. You mentioned there are White House attorneys that

follow these cases, that work them. The attorneys—I think we established this earlier. I just want to make absolutely certain. The

attorneys at the White House counsel’s office that are handling, for

example, the Filegate case—cases are Michelle Peterson and, previously, Sally Paxton; is that correct?

Ms. NOLAN. That’s correct, sir.

Mr. BURTON. The gentleman’s time has expired.

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Mr. Shays is next.

Mr. Raben, have you obtained the names of the lawyers we were

talking about?

Mr. RABEN. I have current information. I don’t have the name of

the line attorney that probably worked directly with Mr. Barry, but

the director then and now of the Federal programs branch, which

he apparently came from, is a gentleman named David Anderson.

I’ll continue to work or I’m waiting for if we can determine that.

Mr. BURTON. David Anderson would deal with that area?

Mr. RABEN. Yes.

Mr. BURTON. He was one of the line attorneys, was probably

working with Mr. Barry, and you will have that name for us?

Mr. RABEN. I will try to get you that name. I don’t exactly know

what the holdup is. We would obviously—I will get you that name

as soon as I know it. We will have line attorney and pending criminal investigation matters to talk about.

Mr. BURTON. If it’s possible, we’d like to have that today.

Mr. RABEN. I’ll try my best, sir.

Mr. SHAYS. I’m going to yield in 1 second to Mr. Barr; and, Ms.

Nolan, I should always give you an opportunity to answer questions. So I think your rebuke of me was a fair one on that side.

I want to ask you a question, though. It is a hypothetical, and

we both may agree on this, and I’m going to read it slowly.

If you were a White House counsel on June 19th, 1998, and if

you were informed of a potential omission in subpoena compliance

and if you were told at the time the admission might involve hundreds of thousands of e-mails, would you feel obligated to inform

investigative authorities?

I’d be happy to read it over again if you’d like.

Ms. NOLAN. I would certainly want to know more about the problem and make sure that there was a problem, yes, sir. I don’t know

that from that meeting.

Mr. SHAYS. No, and I don’t either. Nothing’s been established.

But if you were a White House counsel on June 19th and if you

were informed of a potential omission in subpoena compliance and

if you were told at that time the admission might involve hundreds

of thousands of e-mails, would you feel obligated to inform investigative authorities?

Ms. NOLAN. I would feel obligated to look into the matter, sir.

Mr. SHAYS. And then what?

Ms. NOLAN. Well, if I were informed that there was a potential

problem, I looked into the matter and was told, no, the problem’s

fixed and there apparently wasn’t a problem, I would not feel obligated.

Mr. SHAYS. And if you found there was a problem?

Ms. NOLAN. If I found that there was a problem involving hundreds of thousands of e-mails——

Mr. SHAYS. Right.

Ms. NOLAN [continuing]. Then I would do what we’re doing now,

which is trying to work with the investigative bodies and figure out

how to get those e-mails restored, sir.

Mr. SHAYS. Let me ask you one last point as it relates to this,

though. If you thought it was a potential problem and you looked

at it, how many weeks or months do you think it would make sense

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for you to look at it before you stepped forward? In other words,

should it go on for months if you thought there was a problem?

Wouldn’t you feel obligated to say we think there may be a problem

and we’re looking at it and we don’t have an answer yet? You

wouldn’t feel obligated?

Ms. NOLAN. Sir, I would want to know there’s a problem and

know the general scope of it. I don’t know how long that would

take.

Mr. SHAYS. If it took 6 months you wouldn’t necessarily even feel

an obligation?

Ms. NOLAN. That—in the absence of sort of knowing what the

facts are of those 6 months, I don’t feel like I can answer that.

Mr. SHAYS. OK. I would yield my time to Mr. Barr.

Mr. BARR. Thank you.

Mr. Chairman, earlier the ranking member had expressed some

rather large degree of concern over the cost of the various investigations. I’d like to ask unanimous consent that the following article dated March 24th of this year from the Copley News Service regarding the fact that the President’s latest trip to India and Ban- gladesh and other exotic locales cost in excess of $50 million. His

trip last—couple of years ago to the African subcontinent cost close to $43 million. His 10-day trip to China cost close to $20 million;

and a 4-day trip to Chile, the bargain of the group, was $10.8 million. Knowing that Mr. Waxman pays very close attention to the

record in this case and is constantly trying to reconstruct it, I’d like

that placed in the record.

Mr. BURTON. Without objection.

[The information referred to follows:]

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454

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Mr. BARR. I’d also like to ask unanimous consent that William

Safire’s column in the New York Times today, entitled ‘‘The

100,000 E-mail Gap,’’ and the Washington Times article by Jerry

Seper today, also, entitled, ‘‘Judge Says Clinton Violated Privacy

Act,’’ be placed in the record.

Mr. BURTON. Without objection, so ordered.

[The information referred to follows:]

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Mr. BARR. Thank you.

Mr. Raben, I think we’ve established that David Anderson is an

attorney at the Department of Justice handling these matters; is

that correct?

Ms. NOLAN. I understand him to be the director of the Federal

programs branch.

Mr. BARR. Does James Gilligan, who I believe is a trial attorney

over in the Civil Division, work with him, for him or is he a superior of his?

Mr. RABEN. I believe that he is a subordinate of his. I’ll check

that and let you know.

Mr. BARR. OK. And whose responsibility is it—it’s my understanding that James Gilligan coordinates and communicates on a

fairly regular basis involving these cases to the—to Ms. Peterson;

is that correct?

Mr. RABEN. To Ms. Peterson?

Mr. BARR. Ms. Peterson, Michelle Peterson at the White House

counsel’s office.

Mr. RABEN. That I have no idea.

Mr. BARR. Maybe I should direct that to Ms. Nolan. Do they communicate with each other?

Ms. NOLAN. That’s my understanding, sir, yes.

Mr. BURTON. The gentleman’s time has expired.

I want to get back to the questions that we were talking about

regarding Mr. Barry.

Mr. Raben, you said that you don’t know anything about anything that a line attorney may have said to him relevant to saying

you don’t have to worry about signing this—so you don’t know that.

Ms. Nolan, how did the White House counsel’s office let this affidavit be filed if there was any question about it being false? This

is the affidavit we talked about regarding Mr. Barry. Do you have

any knowledge about that?

Ms. NOLAN. I don’t, sir, except to say that, based on my other

testimony, I don’t believe the White House counsel’s office would

have thought that it was false; and, as I said earlier, I don’t believe

it is false.

Mr. BURTON. Well, that’s your opinion, and I honor that. We’ll

talk to Mr. Ruff and others about that later.

I prepared a criminal referral regarding this affidavit asking the

Justice Department to investigate Mr. Barry for perjury. Do you

agree, Mr. Raben, that any charges against Mr. Barry should also

include an investigation of the role of the Justice Department and

White House lawyers in drafting the affidavit?

Mr. RABEN. Do I agree that any investigation of Mr. Barry

should include——

Mr. BURTON. Since they helped prepare the document.

Mr. RABEN. I can’t agree or disagree with that assertion. I hope

this is helpful. I understand that—I know that a criminal investigation has begun, and I don’t know that any fact which has or

will be asserted is off the table in that investigation.

Mr. BURTON. Well, if the Justice Department did help him prepare the document and did knowingly help him perjure himself by

signing an affidavit that was incorrect, which we believe it is, how

can they investigate themselves? I mean, the Justice Department

460

has taken this under advisement and they’re conducting a criminal

investigation. Part of that will involve, I presume, Mr. Barry since

he was one of the principals.

Mr. RABEN. Answering the broader of the very important question that you’re raising now and I have heard you raise in your

opening statement and in press accounts, how can the Justice Department investigate itself, I think you raise a very good question

about how we deal with overlapping inquiries or civil matters and

what is now a criminal matter. And I understand that it is not uncommon, in fact, it is somewhat frequent, where a representation

of a client agency, which is done under statutory authority requirement, not simply authority, is proceeding and information comes

forward which necessitates the initiation of a criminal inquiry.

When that criminal inquiry is initiated, the common procedure, I

have learned, is to seek a stay of those aspects of the civil representation that may be implicated by the criminal investigation,

and that is what has gone on here.

Mr. BURTON. So they’re asking for a stay in the civil case while

they conduct their criminal investigation?

Mr. RABEN. I think that would be an overstatement. My understanding of the pleading which was filed is staying some aspects

of the civil litigation. I don’t believe that all aspects of the civil litigation have been requested to be stayed.

Mr. BURTON. When did the Campaign Finance Task Force learn

about the White House e-mail problem?

Mr. RABEN. I don’t know. I know that that will be—I presume

that will be one of the subject matters of the inquiry itself which

has been initiated, but I simply don’t know. I do know I saw——

Mr. BURTON. So you wouldn’t know also how the Campaign Finance Task Force found out about the problem either?

Mr. RABEN. I don’t know.

Mr. BURTON. Well, if you could get answers to these questions,

it would be helpful.

Mr. RABEN. You have submitted—I know that you have sent to

the Department a series of letters, one of which enumerates these

and other similar questions, and we will answer those questions.

Mr. BURTON. I hope it’s expeditiously.

Mr. RABEN. I hope so, too, sir.

Mr. BURTON. Would you know if the task force ever attempted

to interview any of the Northrop Grumman contractors about the

problem?

Mr. RABEN. I wouldn’t know.

Mr. BURTON. We have learned that task force attempted to contact Betty Lamberth 2 weeks ago, but we don’t know about any of

others.

I guess the next question is superfluous, because we need to

know why the task force waited until now to contact the Northrop

Grumman contractors. So I guess we’ll have to find out who the attorneys were that were involved in this and ask them.

In a recent court filing, Justice Department lawyers said that

they knew about the problem for over a year. If that’s true, why

did the Campaign Finance Task Force do nothing for over a year?

I mean, if they have known about it for a year, I wonder why they

461

haven’t done anything. They didn’t do anything until I sent a letter

to the Attorney General. Do you have any answer to that?

Mr. RABEN. I know that you posed that question in the letter,

and we will respond to it.

Mr. BURTON. Mr. Horn.

Mr. HORN. I was curious in the last dialog between us as to were

there other places in the White House where messages could go off

one’s e-mail or one’s server; and, to your knowledge, do you know

of any other part of the White House where there might be messages parked from that period, 1993 through 1996 through 1998?

Ms. NOLAN. I know of no messages parked, sir. I do know that

back-up tapes were made of the server at various times and that

those back-up tapes are going to be reconstructed and searched.

Mr. HORN. OK. So, in other words, they had back-up tapes I take

it when the subpoena went down there, and you’re saying now that

the system is up and running, that there will be back-up tapes?

Ms. NOLAN. No, sir. There have been back-up tapes made. Those

back-up tapes are of the server. They’re a picture of the server at

a particular time. They’re not searchable. They are being reconstructed so that they can be searched and so that they can be

placed on ARMS.

Mr. HORN. Now, what do you have to do to reconstruct them in

order to get a search?

Ms. NOLAN. Sir, I could not tell you that. The Office of Administration has retained an outside contractor who will do that work.

I don’t understand the details of how it has to be done.

Mr. HORN. Well, I think the FBI is one that can do the work if

anything was done on the mainframe, and then the question would

be—is, can you tell if there are erasures or not? Practically every

company, university in the country takes a back-up tape every day,

just in case you have got a surge, an earthquake, a power failure

or whatever it is; and so I’m just curious why it took so long to get

to this. What motivated them? Was it the President’s library and

they wanted to check things to be on deposit or what was the motive of this?

Ms. NOLAN. Sir, Mark Lindsay from the Office of Administration

at the time and the Assistant to the President for Management and

Administration was here last week, and I understand he testified

that the Office of Administration made a determination to make

sure they were Y2K compliant. Y2K compliance went through February 29th, and then they were to begin the reconstruction.

Mr. HORN. And that’s when you really became aware of it?

Ms. NOLAN. I became aware of it somewhat earlier in February,

except for the briefing I was given in January in which I did not

fully become aware of it but where I was told about a MAIL2 and

letter D problem.

Mr. HORN. Now, with reference to prior questions you had on

this, it seems to me an outgoing counsel of the President would

have a list on a memorandum of either finished, partially finished

or unfinished business. Now, did Mr. Ruff ever pass that on to you

and tell you about the subpoenas that—and the impact they would

have?

Ms. NOLAN. It’s my understanding, sir, that Mr. Ruff did not understand there was a problem with any subpoenas. He did not tell

462

me that there was a problem, which is consistent with my understanding that he didn’t understand there was a problem.

Mr. HORN. Well, usually, a new person in a job would start going

down the line with your associate or your deputy or your assistant

counsels and say, you know, what do you do and etc. Did you do

that when you entered on that job?

Ms. NOLAN. I did that, Mr. Horn.

Mr. HORN. And did you learn anything about the tapes in that

experience?

Ms. NOLAN. It’s my understanding that no one in the counsel’s

office knew that there was a problem with subpoena compliance.

Mr. HORN. What you’re telling us is if we ever have to ask to

redo what goes on at the White House under subpoena, that the

counsel’s office is not the one to go to. It seems to me, I guess, the

Office of Administration, which is a statutory office within the Executive Office of the President, and they’re the ones that know

where you can find something on a computer, and I take it the

counsel can’t find it.

Ms. NOLAN. Sir, we found what was on the ARMS system, I believe. There were things that were not on the ARMS system, and

we were not aware of that.

Mr. HORN. Well, let me read you this quote yesterday at the

press conference. The President stated that the White House had,

‘‘turned over everything that had been found,’’ and that subpoenaed

e-mails were not surrendered because they were located, ‘‘in a different system.’’ To what system was the President referring?

Ms. NOLAN. I think the President meant that those e-mails were

not on the ARMS system, not that they were in a different system.

Mr. HORN. Now, has that system been searched or is it a new

system and not an old one or what?

Ms. NOLAN. The ARMS system is the automated, retrieval system, that’s the system in which certain e-mails were not captured

or recorded. Those are—we have the back-up tapes which are not—

were not designed, as I understand it, for record retrieval, but

we’re going to have a contractor come in and enable us to retrieve

those records on the back-up tapes.

Mr. HORN. Now, is the President hooked up to that e-mail system so he—you’ve got what, how many accounts, 500 or so accounts?

Ms. NOLAN. I don’t know the number of accounts in the White

House office. It would probably be about that, but I’m not sure.

Mr. HORN. Well, I would think the President would have a very

secure e-mail with some of his people in terms of, let’s say, national

security. Is there such a tape operation, server operation that’s separate from what you have described?

Ms. NOLAN. Except for a couple of occasions with staff to learn

particular computer things, I don’t think the President uses e-mail,

sir.

Mr. HORN. Well, that’s probably a smart idea, and I don’t use

them either, but the fact is that there’s probably another system

around there for security reasons, and the question would be, were

anything under these subpoenas that could be classified in a security operation and has that system been looked at?

463

Ms. NOLAN. I don’t know the answer, sir, to, in particular, requests whether that system would have been looked at with respect

to classified documents. Is that what you mean, sir?

Mr. HORN. Yes. I would like to know how many systems are

there.

Mr. BURTON. The gentleman’s time has expired.

Ms. NOLAN. The NSC does do a search, sir, I’m told, of its system.

Mr. HORN. Then there are any others besides NSC? That makes

sense to me. And what you’ve got here basically is to——

Ms. NOLAN. I’m told, sir, there is no other classified system, that

that’s——

Mr. HORN. No other classified system or no other system?

Ms. NOLAN. The other systems—the only automated record systems are the NSC and the EOP-wide one called ARMS.

Mr. HORN. OK. So everything that you or your staff in the counsel’s office know you’re telling us now in response to these questions, is that true?

Ms. NOLAN. I’m sorry, sir?

Mr. HORN. Well, do any of your staff know something beyond this

because you weren’t here?

Ms. NOLAN. We’ve—I’ve talked to many people on my staff, and

I’ve had my staff talk to many people who were here who are no

longer in the counsel’s office. We have not found anybody who

knew—had this information, which I am saying I don’t believe the

counsel’s office had.

Mr. BURTON. Mr. Barr. The gentleman’s time has expired.

Mr. BARR. Was the President ever informed about the problem

with e-mail system?

Ms. NOLAN. Mr. Barr, yes, the President was informed, I believe,

within the past month, yes.

Mr. BARR. That was the first time that the President was informed about this problem?

Ms. NOLAN. As far as I know, yes, sir.

Mr. BARR. Would anybody have any different knowledge?

Ms. NOLAN. I don’t think so.

Mr. BARR. Was the Vice President ever informed about the problem with the e-mail system——

Ms. NOLAN. I think also within the past month, sir.

Mr. BARR [continuing]. After the news stories broke.

What was the response of the President when he was informed

about this problem?

Ms. NOLAN. Umm, sir, the President wanted to make sure that

we had produced everything we could produce and that we were

looking into what to do.

Mr. BARR. What was the response of the Vice President?

Ms. NOLAN. I don’t know, sir.

Mr. BARR. Who briefed the Vice President on this?

Ms. NOLAN. Somebody on his staff, sir, but I’m not sure if it was

his counsel or not.

Mr. BARR. Was Mrs. Clinton ever informed about the problem

with the e-mail system?

464

Ms. NOLAN. I don’t know, sir. I did not inform her. I’m not aware

that anyone did other than there have been news accounts about

it.

Mr. BARR. Would that have been Ms. Posey? Would she have informed her about that?

Ms. NOLAN. All of this would have occurred only in the past

month. Any—I’m not aware that anyone in 1998 informed the

President, the Vice President or the First lady.

Mr. BARR. On January 28th of this year, a letter was sent to

committee counsel, our committee counsel, Mr. Wilson—actually to

Mr. Hollis, but our counsel, regarding the Waco matter. And that

letter says, quote, the scope of our recent search for Waco-related

materials encompassed all items or documents in any way relevant

to the events occurring at the Branch Davidian compound in Mount

Carmel outside of Waco, Texas, in February to April, 1993.

Ms. NOLAN. Do I have a copy of that, sir?

Mr. BARR. You’re asking me if I have a copy of it?

Ms. NOLAN. The committee provided me with copies of documents. I don’t know if—— Mr. BARR. Mr. Lindsay seems to have a pretty full library. I can

make a copy here but do you have one? Exhibit 60.

[Exhibit 60 follows:]

465

466

467

Ms. NOLAN. Exhibit 60. Thank you.

Mr. BURTON. Exhibit 60.

Mr. BARR. It shows a carbon copy to you.

Mr. BURTON. Would you see if you can get another copy for Ms.

Nolan?

Mr. BARR. I’m having a copy made right now. We should have

another copy up here, I would think.

Ms. NOLAN. Mr. Raben has it, sir.

Mr. BURTON. You found it. OK.

Mr. BARR. The question is, how can that assertion be true when

y’all’s testimony is that you don’t know whether any relevant emails came into the White House during the August 1996, November 1998, timeframe?

Ms. NOLAN. At that time, Mr. Barr, I did not know and I do not

believe anyone in my office knew that there was a problem with

retrieval of certain e-mails in ARMS searches.

Mr. BARR. So that may or may not be a complete, full and accurate statement——

Ms. NOLAN. Which statement is it that you’re referring to specifically, now that I have the document, sir?

Mr. BARR. The one that I read.

Ms. NOLAN. I’m sorry. I didn’t have the document at the time so

I would just like some help finding it.

Mr. BARR. I was going to. I was in the middle of a sentence. And

it appears on page 2, the third paragraph, the scope of our recent

search for Waco-related materials encompassed all items or documents in any way relevant to the events occurring at the Branch

Davidian compound in Mount Carmel outside of Waco, TX in February to April, 1993.

Ms. NOLAN. Yes, sir. That was the scope of our search at that

time, yes, sir.

Mr. BARR. OK. And the question is, how can you all make that

statement—that assertion? It seems to me that it’s not true because you don’t know whether or not during this timeframe here,

August 1996 to November 1998, whether any relevant e-mails

came into the White House.

Ms. NOLAN. Sir, the statement is what the scope of our search

was. I don’t believe we’ve ever been able to say that we have found

every possibly relevant document. We make a good-faith effort to

search.

Mr. BARR. That’s what it says: All items or documents in any

way relevant to the events occurring at the Branch Davidian compound.

Ms. NOLAN. The scope of our search encompassed all items or

documents. That’s what we searched for.

Mr. BARR. It’s a circular argument.

Ms. NOLAN. We can never be sure, Mr. Barr, that we found everything. We make a good-faith effort and a very vigorous effort to

find things. But we can’t be sure that we’ve ever—I don’t think

anyone can ever say that I’m absolutely sure I found everything.

And that letter doesn’t say that.

Mr. BARR. Do you all do this with courts also?

Ms. NOLAN. Sir?

468

Mr. BARR. Do you all do this with courts, add a footnote to everything that you all say?

Ms. NOLAN. There is no footnote, sir.

Mr. BARR. There is. You just told me that, despite the plain language of this, that you have sent us all items or documents in any

way relevant to the events occurring.

Ms. NOLAN. Sir, that is the not the plain language. I don’t see

the words ‘‘sent you’’ in there. What I want to make clear, because

I don’t want this to be about a little, you know, sort of word game.

That’s not what it’s meant to be. We identified what the scope of

our search was. More importantly for these purposes, we were not

aware that in the scope of that search there might be e-mails that

would not have been retrieved from that search.

Mr. BARR. Despite the fact that we have established that going

back to at least 1998 y’all knew there was a problem with retrievable e-mails?

Ms. NOLAN. We knew there had been or might have been—at

least Mr. Ruff informs me that he knew there had been or might

have been a problem, that a second search was done, that the documents that were found in that were duplicative and he did not

believe—— Mr. BARR. It was only a partial search.

Ms. NOLAN. Sir, I’m telling you what Mr. Ruff knew and understood in 1998.

Mr. BARR. We’ll get Mr. Ruff in here to tell us what he knew or

should have known. What I’m saying, though, is the argument that

y’all are using—and it does get back to the parsing of words and

what the technical sentence structure is, something that is so endemic to this administration, what you’re saying is a circular argument. You’re saying whatever we give you is what we give you, and

we may or may not know that there’s something that we’re not giving you.

Ms. NOLAN. That’s right, sir. That’s how any document production is done.

Mr. BURTON. The gentleman’s time has expired, but we’ll get

back to him in just a little bit.

Would you like to take a break for about 5 minutes? That would

be fine. We’ll try to wrap this up as quickly as we possibly can.

Stand in recess for 5 minutes.

[Recess.]

Mr. BURTON. We will try to reconvene here and wrap this up in

the next half hour, if it is at all possible. I appreciate your patience

today with all the questioning, but I think it really is important

that we get as many answers as possible today.

Let me start off and try to get some of the questions I need.

First of all, I ask unanimous consent that a set of documents

which may be used as exhibits in today’s hearing and which have

been shared with the minority be entered into the record and, without objection, so ordered. We’ve already cleared that with the minority.

[NOTE.—The referenced material is provided at the end of this

hearing.]

Mr. BURTON. When the White House belatedly produced videos

to the Justice Department in 1997, Mr. Raben, the Attorney GenVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00476 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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eral stated that she was mad and that she was very disturbed that

the tapes had not been produced in a current fashion and that it

had taken so long after the production of the tapes to let them

know, the Justice Department. Was the Attorney General mad or

angry when she found out about the missing e-mails and had never

been—that had never been produced to the Justice Department?

Was she angry about that or do you know?

Mr. RABEN. I couldn’t characterize her thoughts on it.

Mr. BURTON. When the Attorney General found out there were

embarrassing Waco flare tapes, she had U.S. Marshals seize them

from the FBI. Did she ever consider sending Marshals to seize the

back-up tapes from the White House?

Mr. RABEN. I don’t know what she’s considered in her mind, sir.

I know that she is interested in being as responsive to you as possible.

Mr. BURTON. Is there any concern in the Campaign Finance Task

Force that the Justice Department lacks the ability to enforce any

of its document requests to White House or other agencies? Does

it lack, in your opinion, the political will to enforce those document

requests?

Mr. RABEN. If they’re concerned within the Campaign Finance

Task Force?

Mr. BURTON. Yes.

Mr. RABEN. I don’t know what concern the Campaign Finance

Task Force might have. I know that they’ve initiated a criminal investigation.

Mr. BURTON. In the Filegate lawsuit, Justice Department lawyers characterized the claim that there were missing White House

e-mails as offensive. The Justice Department lawyers also stated

that it is unduly burdensome to perform broad-based searches of

archived and backed-up e-mails, especially e-mails stored in nonword-searchable format. Given that that’s the position of the Justice Department in that case, how can the Democrats now turn

around and investigate the White House?

Mr. RABEN. The characterization as offensive is something I

would never do. I think that was a mistake.

The second part was the undue burden to a particular e-mail retrieval search. I have no—I don’t have the technical expertise to

offer my opinion as to whether it’s unduly burdensome. I think——

Mr. BURTON. You disagree——

Mr. RABEN. Excuse me. I’m sorry.

Mr. BURTON. You disagree with the term that was used by the

Justice Department, that the missing e-mails were offensive?

Mr. RABEN. I never write in that fashion.

Mr. BURTON. Do the lawyers on the Campaign Finance Task

Force believe that it’s offensive to suggest that the White House or

any other entity under investigation would withhold documents or

have you talked to any of them about that?

Mr. RABEN. I’m sorry. I missed the question. I’m sorry.

Mr. BURTON. Do the lawyers on the Campaign Finance Task

Force believe that it’s offensive to suggest that the White House or

any other entity under investigation would withhold documents?

470

Mr. RABEN. I really can’t characterize what they believe. I think

that the people that I have met are hard-working, dedicated, mostly career people who go about their business.

Mr. BURTON. Well, they were talking about it being offensive

that the White House would withhold documents. So you don’t

have any feeling—you really haven’t talked to anybody on the task

force about any of this?

Mr. RABEN. I haven’t heard them—the few individuals I have

interacted with I haven’t heard them editorialize or offer rhetoric

like that.

Mr. BURTON. Ms. Nolan, you wrote a letter to us and in it on

page—the last page of it.

Ms. NOLAN. What number is that, sir?

Mr. BURTON. I don’t know that there’s a number on this, is

there? It’s the March 17th letter you sent to me.

Mr. BURTON. Thank you, sir.

Ms. NOLAN. I just had one question about this. On the last paragraph of that letter you say, ‘‘the process may be performed in

batches, i.e., several back-up tapes at a time. If reconstruction were

possible, we would likely begin the process with the November

20th, 1998, and June 1st, 1999, back-up tapes, approximately 15

tapes total. This process would entail extracting the unrecorded emails from the back-up tapes and putting them on a server. This

estimate . . .’’ And then you go into the timeframe and everything. It says, ‘‘this

estimate does not, however, include the possible restoration of OVP

back-up tapes as well as the time and funds needed to perform

other steps in the process such as awarding a competitive contract,

searching ARMS printing search results, manually reviewing them

and producing responsive materials.’’ One of the concerns that we have is that some of the batch that

we’re concerned about start back when this problem occurred in

September 1996. And if you start with the batches at the front end,

i.e., the ones most recent, then if you run into a logjam, the

chances are or problem—the chances are this might not be solved

or we may not get the documents until well after the November

election, which might be fortuitous for those who may be involved.

And so what we wanted to know is assuming—and you said the

contract has been signed.

Ms. NOLAN. Yes, sir.

Mr. BURTON. Assuming a contract has been signed, we would like

to know if these e-mails that could be relevant to our investigation,

the campaign finance investigation, which would be the ones going

at the beginning of the problem in September 1996, would be the

first batch to be looked at.

Ms. NOLAN. Mr. Chairman, before I answer that, you said something which reminded me I wanted to say that there had been a

question earlier, and the contract does include restoration of the

OVP back-up tapes. So thank you for reminding me of that.

Mr. BURTON. OK.

Ms. NOLAN. Second, we, as you know, have several investigative

bodies we will be dealing with. The reason we talked about the November 1998, and June 1999, back-up tapes first is because they

took a picture of the server with everything on the server right beVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00478 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
471

fore they restored—started restoring on a going-forward basis incoming e-mail to ARMS. So that seemed like it might be the

quickest way to get a comprehensive picture of what the server

looked like. It would be anything that remained on the server,

whether it was from 1995 or 1996 on that day.

Then the contractor—as I understand it, the contractor is going

to have to go through and figure out exactly what we have backup tapes of, what dates they are, which ones have e-mails on it.

We haven’t made any determination about what order to do that

in. I hear what you’re saying, sir. We’re just going to have to work

out in terms of timing how we can get this done.

Mr. BURTON. We’re checking with some computer people as well,

and it may very well be that these computer tapes could be handled in a much quicker fashion than 6 months, and so—— Ms. NOLAN. If that’s the case, I would be delighted, sir. We really

have, you know—we originally heard 18 months or 3 years. I said

I wanted us to find a way to get it done quicker. The OA has made

part of the contract that the contractor is to provide innovative

ideas for how to do it; and if we can move up the date, that would

be great.

Mr. BURTON. We’ll be talking to you about that.

Mr. Barr.

Mr. BARR. Ms. Nolan, just to close the loop on my prior questioning regarding this letter of January 28th, that is approximately I

think 10 days after you were briefed on this matter. I believe you

testified that it was about—was it January 18th?

Ms. NOLAN. I think it was the 19th. It might have been the 18th,

sir. I’m not sure.

Mr. BARR. So you were aware of the e-mail problem at the time

this letter was written.

Ms. NOLAN. Mr. Barr, as I testified, I was briefed about some

problem. I did not understand that it had an effect on e-mail

searches. So when the letter said—first of all, though, I want to be

sure that it’s clear that what the letter said the scope of our search

is, what we looked for.

Mr. BARR. I mean, it’s—you just keep going around in circles on

that. It’s very self-serving.

Ms. NOLAN. I did not know there was a problem, no, sir.

Mr. BARR. That is not what the letter says. But I understand this

administration. I still don’t buy into this argument that you all

didn’t know the scope of the problem. It was something that was

deemed very important and very serious to the Northrop Grumman

experts. And they briefed, did they not, Mr. Ruff on this?

Ms. NOLAN. I don’t believe any of the counsel’s office people ever

talked to the Northrop Grumman people, no, sir.

Mr. BARR. Mr. Ruff did not request a discussion with them?

Ms. NOLAN. As I understand it, he received information from Mr.

Lindsay, Mark Lindsay, then general counsel of the Office of Administration.

Mr. BARR. When did he receive that?

Ms. NOLAN. Well, you know, some time in June 1998, sir.

Mr. BARR. What did he receive?

Ms. NOLAN. Well, that—as I’ve testified, what I know is that Mr.

Ruff heard that there was a problem or might have been a problem

472

with an e-mail search. That OA then conducted a second search.

That second search showed that there, in fact, were no missing emails. He did not understand that there was any ongoing problem.

Mr. BARR. What did he receive from Mr. Lindsay?

Ms. NOLAN. I believe he received a copy from Virginia Apuzzo of

the June 19, 1998, memorandum; and I believe he spoke with Mr.

Lindsay.

Mr. BARR. That memorandum wasn’t from Mr. Lindsay.

Ms. NOLAN. That was from Mr. Lindsay’s superior, Virginia

Apuzzo.

Mr. BARR. I think Mr. Ruff received a large number of e-mails

from Mr. Lindsay. Mr. Lindsay testified last week he took over to

the White House counsel’s office.

Ms. NOLAN. Those were the e-mails that were the second search

which I am told turned out to be duplicative.

Mr. BARR. Is that what you meant when you said that Mr. Ruff

received some materials from Mr. Lindsay? Those documents?

Ms. NOLAN. Those are the only documents I’m aware of.

Mr. BARR. So he received those from Mr. Lindsay.

Ms. NOLAN. I don’t know that Mr. Lindsay physically handed

them to Mr. Ruff.

Mr. BARR. You testified that he received something from Mr.

Lindsay. What did he receive from Mr. Lindsay? That’s what I’m

trying to get at.

Ms. NOLAN. Mr. Barr, what I know is that he received from

OA——

Mr. BARR. Just a few minutes ago—— Ms. NOLAN. If I misspoke, I’m sorry. What I know—— Mr. BARR. I don’t know—I don’t know that you misspoke.

Ms. NOLAN. I don’t know either, sir. I’m just trying to tell you

what I know.

Mr. BARR. You told me what you know. You told me just a few

moments ago that Mr. Lindsay received something from—or Mr.

Ruff received it—from Mr. Lindsay. I’m asking what it was.

Ms. NOLAN. Maybe someone could read that back to me, sir. I

don’t know that I said that. What I said, I think, was that Mr. Ruff

received a briefing from Mr. Lindsay.

Mr. BARR. Briefing from Mr. Lindsay.

Ms. NOLAN. Yes, sir.

Mr. BARR. OK. So your testimony now is not that he received any

documents from Mr. Lindsay.

Ms. NOLAN. OA provided documents. I believe that Mr. Lindsay

provided them to the counsel’s office. I don’t know what I——

Mr. BARR. You don’t know who got them either.

Ms. NOLAN. That’s correct, sir.

Mr. BARR. Nobody over there knows who got them.

Ms. NOLAN. I don’t know, sir.

Mr. BARR. We’ve established that.

Well, Mr. Lindsay doesn’t remember who he gave them to.

Why do you take the position, contrary to the testimony last

week, that those documents that were sent over there, that box of

1,000 or however many e-mails, was a complete search? It was

never a complete search.

Ms. NOLAN. I have never said that sir.

473

Mr. BARR. How do you know that there weren’t other documents

that were relevant to these subpoenas, such as the Waco subpoena,

such as the subpoenas from the independent counsel, such as the

subpoena from this committee?

Ms. NOLAN. I have never said I don’t know. I have said that

what I understood from Mr. Ruff, what he understood at a time

when I was not there, sir, what I understand from Mr. Ruff is that

he understood there was or might have been a problem. He understood that a search had been done. I have never said it was a complete search or what he understood about the nature of the search.

I don’t know, sir.

Mr. BARR. Mr. Chairman, am I missing something here? Didn’t

this witness just testify to that?

Mr. BARR. Maybe we should ask Mr. Waxman. He records this

stuff.

Mr. BURTON. Mr. Barr, your time has expired. I’ll be happy to

yield to you more time in just a second.

I would like to ask Mr. Raben if he’s heard back from the Justice

Department about the attorney that worked on Mr. Barry’s sworn

affidavit.

Mr. RABEN. I have heard back. My understanding as of 5:13 is

that the pool of attorneys that would have—could have interacted

with the gentleman’s affidavit, as appears on the public filings,

Ann Weissman; James Gilligan; Elizabeth Shapiro; Alison, I believe it’s pronounced Giles, G-I-L-E-S. There is another attorney on

the filing Julia Covey, but their understanding as of 5:13 is that

she is not among the pool of attorneys who would have interacted.

But as I get more information——

Mr. BURTON. So let me have those names again, their full names.

Mr. RABEN. I will give it to you, but these are the attorneys who

appear on the public filings in the civil case. David Anderson, as

I said before, is the director of the Federal programs branch. The

other names that appear on the filing, in addition to David Ogden

and Wilma Lewis, are Ann Weissman, James Gilligan, Elizabeth

Shapiro and Alison Giles. And except for Mr. Anderson I understand all of those to be line attorneys in the Civil Division.

Mr. BURTON. So what you’re saying is one of those probably is

the one that worked with him on his sworn affidavit.

Mr. RABEN. Our understanding, as of right now, is that at least

one—it’s possible that more would have interacted.

Mr. BURTON. OK. Well, the reason I ask is because we’ll be

issuing subpoenas for them; and I want to make sure that we don’t

unduly burden the others who may not have been involved.

Mr. RABEN. I understand that. And I expect—I suspected that

you would send subpoenas to those people, and I expect that we’ll

try to have conversations with you about our line attorney policy

and our pending criminal case policy.

Mr. BURTON. Would both witnesses—both of you agree to answer

written questions put to you by the committee so that we could include them in the record? And, if so, we’ll hold the record open for

those answers. Is there any problem with that with either one of

you?

Ms. NOLAN. No, sir. No problem.

474

Mr. BURTON. Mr. Barr, do you have any more questions? The

counsel—we want to give the counsel some time. He has a few

questions that he would like to summarize with. If you have more

questions, go ahead.

Mr. BARR. One of the areas that we went into last week with the

other Mr. Lindsay was something that he used—he kept using a

term, and finally we asked him what was this term, ‘‘mission-critical project?’’ Have you ever heard of that term?

Ms. NOLAN. Not until today, sir, I don’t think I’ve heard it.

Mr. BARR. You didn’t hear it last week? We spend quite some

time with him going over it.

Ms. NOLAN. I did not. I saw some but not all of Mr. Lindsay’s

testimony.

Mr. BARR. I yield back, Mr. Chairman, for counsel.

Mr. BURTON. We’ll now yield to the counsel for some questions.

Mr. WILSON. Ms. Nolan, good afternoon. Mr. Raben, good afternoon.

Ms. NOLAN. Good afternoon.

Mr. WILSON. Just to clarify things for the record, you’ve told us

today that you had conversations with former White House counsel, Charles Ruff, correct?

Ms. NOLAN. Yes, sir.

Mr. WILSON. How many conversations have you had with Mr.

Ruff since the newspaper articles first made you aware that there

was a problem with the e-mail situation?

Ms. NOLAN. I think two or three. I’m not sure. Two or three.

Mr. WILSON. OK. Now just so we can be precise here, if you

would please tell us everything he told you about his various exposures to this problem. What did he tell you?

Ms. NOLAN. He told me that he was informed that there was or

may have been a problem with an e-mail search, that he spoke

with Mark Lindsay about it, that he—that OA had conducted a second search and that, as far as he knew, that search had shown that

there were no missing e-mails and that he, therefore, thought there

was no problem.

Mr. WILSON. OK. Fair enough. With—the time that he spoke

with Mr. Lindsay, did he tell you whether other people were involved and—tell us, was this a meeting that he had with Mr. Lindsay or a telephone conversation?

Ms. NOLAN. I know—I know he said that he met with Mr. Lindsay, but I’m not sure.

Mr. WILSON. You know where he met with Mr. Lindsay.

Ms. NOLAN. I don’t.

Mr. WILSON. Do you know if anybody else was in the meeting?

Ms. NOLAN. I don’t.

Mr. WILSON. Have you reviewed any records in the last week?

We received records indicating that on June 19th Mr. Lindsay had

a meeting with Mr. Ruff and an individual named Mills. I assume

that’s Cheryl Mills. Have you reviewed records about meetings?

Ms. NOLAN. I have seen that calendar entry, yes.

Mr. WILSON. What does that calendar entry mean?

Ms. NOLAN. It means that at that time he had a meeting set up

with Mr. Lindsay and Ms. Mills. I don’t know if he had it—if all

three people were present. I just don’t know.

475

Mr. WILSON. It’s fair to say you’ve not asked him whether he actually did have the meeting with those individuals.

Ms. NOLAN. He remembered that he had met with Mr. Lindsay.

I think he remembered that he had discussed it with Ms. Mills. I

did not ask if she was in the meeting at the time. I’m not sure that

she was.

Mr. WILSON. So since you’ve received the documents, you’ve not

asked him the question did you meet with Mr. Lindsay and Ms.

Mills on this issue?

Ms. NOLAN. He had already told me that he had discussed it

with Ms. Mills.

Mr. WILSON. Did he discuss it with Ms. Mills at a different time

than he discussed it with Mr. Lindsay?

Ms. NOLAN. I don’t know the answer to that.

Mr. WILSON. So is that fair then to say that you have not asked

him whether he met with Mr. Lindsay and Ms. Mills at the same

time?

Ms. NOLAN. At the same time? I don’t believe I’ve asked him

that, no, sir.

Mr. WILSON. Fair enough. I guess the threshold issue here is,

you’ve told us what Mr. Ruff said. Do you believe Mr. Ruff’s story?

Ms. NOLAN. I do.

Mr. WILSON. OK. I mean, the problem—it’s been stated a number

of times and I have a few very specific questions about the test

search that was done, but the problem obviously for us is that

there were a number of employees who knew there was a serious

problem.

Within days of their elevating the problem to their superiors, a

memo was produced from an assistant to the President to the deputy chief of staff to the President, who’s well regarded and is the

current chief of staff to the President. At an almost contemporaneous time, a briefing was held where Mr. Lindsay explained the

problem to Mr. Ruff. And the problem that we’re confronted with

right now is almost everyone seems to have understood the parameters of the problem except Mr. Ruff. And so did Mr. Ruff give you

any indication of how it was that he did not become aware of the

basic parameters of this problem?

Ms. NOLAN. I just want to say that I’m not at all sure that everyone—it’s clear to me from the testimony and from memos that people began to understand the parameters of the problem. It is not

at all clear to me that everyone understood them at all. And, believe me, when I started asking questions in February of this year

the—it wasn’t clear to me that everyone understood the parameters

of the problem.

Mr. WILSON. Well, clearly, not every computer glitch results in

a memo to the deputy chief of staff and a contemporaneous meeting

with the counsel of the President. And there was—as we learned

last week, there are some differing recollections, but there was

great certainty as to what the problem was.

Let me just read you a couple of statements that Mr. Barry made

in e-mails, and they were admittedly after the fact, but Mr. Barry

says in one e-mail, I feel that the records must be recreated and

any searches need to be reperformed if the requesters feel it’s necVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00483 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
476

essary. This is a daunting proposition, but I do not see any other

alternative.

In another e-mail, Ms. Gallant, who was the Associate Director

of the IS&T Division, says, I also agree with Tony about the new

searches that will have to be done. We need direction from OA

counsel on that front.

And I’ll leave this because I have some very specific questions,

but it seems very clear to us that there was a concern that there

was a universe of documents that had not been searched for responsiveness to subpoenas. Which takes me to, I guess, the real

question. Mr. Ruff, you’ve told us, was concerned that there was a

search, and the search indicated that there were no e-mails that

had not been produced to any requesting body, is that correct?

Ms. NOLAN. I’m sorry. Could you repeat? I just want to make

sure that your characterization of what I’ve said is accurate.

Mr. WILSON. I guess this was my characterization. But there was

a search conducted by computer programmers Northrop Grumman

computer contract employees, and the search involved terms that

had Monica Lewinsky in them, is that correct?

Ms. NOLAN. It was a search related to the Monica Lewinsky investigation. I don’t know what the terms were. I haven’t seen the

search.

Mr. WILSON. That was my next question: What was the search?

Ms. NOLAN. I don’t know. Mr. Haas was here last week. He’s the

one who did the search. As I testified earlier, I have not seen

what’s on his F drive, what he saved of the search.

Mr. WILSON. Have you made any inquiries as to what the search

was?

Ms. NOLAN. I have made inquiries. I have not yet determined exactly what it was, other than related to the Monica Lewinsky matter.

Mr. WILSON. At this point, you just don’t know what the search

was, is that’s a fair—— Ms. NOLAN. I don’t know what terms he used or what exactly he

was searching for, no, I do not.

Mr. WILSON. Do you know, as you sit here today, whether this

was a comprehensive search for all of the material about Ms.

Lewinsky that would have been requested by the independent

counsel?

Ms. NOLAN. I don’t know what the search was.

Mr. WILSON. OK. I guess it takes us to the real concern. If you

don’t know what the search was, did you ask Mr. Ruff what the

search was?

Ms. NOLAN. Mr. Ruff did not have any details for me. I don’t

think—I don’t know if he doesn’t remember or if his recollection is

that OA took care of doing a search for these e-mails. I don’t know

the details of it.

Mr. WILSON. And who requested the search?

Ms. NOLAN. You know, I don’t—that is one thing I don’t know.

I believe counsel’s office did, but I don’t know if OA said they would

do it. I just don’t know the answer.

Mr. WILSON. This is a matter of great importance for us for the

next few questions I’ll ask. But have you asked anybody in the

counsel’s office about this search?

477

Ms. NOLAN. Yes.

Mr. WILSON. And what do they tell you? Did they request a

search?

Ms. NOLAN. I don’t recall whether the counsel’s—I don’t recall

hearing that anyone in the counsel’s office requested the search. I

don’t know if Mr. Ruff requested it. I just don’t know.

Mr. WILSON. The reason I mention this at this point and believe

that it’s of great importance is because the search that was actually conducted appears to be a very, very minor or preliminary type

of search. It appears to have involved a request for documents that

pertain to one individual and we were told four other individuals.

But it doesn’t appear to be a particularly all-encompassing search.

Is this your understanding of this particular Lewinsky search?

Ms. NOLAN. That’s my general understanding. As I said, I

haven’t seen the search, but it’s my understanding that Mr. Ruff

had been told there had been a problem or understood that there

was a problem with a particular search and that another search

was being done to see if there was a problem with that particular

search. So I don’t know that anybody said anything about an allencompassing search.

Mr. WILSON. We were told by the employees when they did the

search they came up with three reams of documents. I originally

asked if that’s about this many documents, and I was told it was

about this many documents. That’s what we were told last week.

Now the question is, if this was a very preliminary search and

it showed a fairly significant universe of documents, maybe duplicative, maybe not, but a fairly large universe of documents, did

anybody—have you discussed with Mr. Ruff whether he said maybe

we better go back and do a comprehensive search because there is

a problem?

Ms. NOLAN. No. As I’ve said, it’s my understanding that what

was provided to the counsel’s office—and I don’t know if what was

provided was this amount or this amount. I don’t know. But what

was provided to the counsel’s office was checked against what the

counsel’s office already had been provided.

Mr. WILSON. But let me—— Mr. BARR. Would counsel yield for just a moment?

I’m sorry, but with regard to the sort of—the line of reasoning

in the position that y’all are taking with regard to this subpoena

from this committee with regard to your conclusion that however

many documents there were here—and I think we’ve established

that there were quite a few subject to the search that Mr. Haas

conducted or was directed to conduct and did conduct—that someone made a determination that they were duplicates of others that

had already been provided pursuant to the subpoenas to the Congress. Was a similar conclusion reached and conveyed to the courts

in any pending civil litigation that documents—none of these documents were going to be furnished to the court because they were

determined to be duplicative by the counsel’s office?

Ms. NOLAN. Mr. Barr, it’s my understanding that the counsel’s

office determined that they had already produced whatever those

documents were.

Mr. BARR. So they made this determination that these documents were duplicative and, therefore, for all purposes, whether it

478

was the independent counsel, a congressional committee or civil action—and, therefore, none of them were going to be produced because they already had been?

Ms. NOLAN. It is, again, my understanding that Mr. Ruff understood there was a problem with a particular search; and it was that

search that they were looking to see if there were duplicative documents.

Mr. BARR. I’m not sure we’re going to get anywhere on that. But

just with regard to the determination that you say was made that,

with regard to these documents that counsel is asking you about

now, that they were not furnished to anybody because they were

deemed to be duplicative, that applies to not only the request from

this committee, the subpoena, but to anybody else that had asked

for those, including the courts or the independent counsel?

Ms. NOLAN. I apologize, sir, maybe having been here for this long

I’m having trouble following, but I don’t know the question. There

was a search done with respect to one subpoena in one investigation. That was, as I understand it, what Mr. Ruff understood there

might have been a problem about. He didn’t understand that there

was a problem about any other search or any other investigation.

So I’m just not sure how to answer your question.

Mr. BARR. Weren’t these documents subject to a number of different requests, including but not necessarily limited to the independent counsel, this committee, the impeachment committee and

possibly other civil actions?

Ms. NOLAN. Documents that would have been responsive?

Mr. BARR. That relate, for example, to Ms. Lewinsky, possibly

Waco.

All I’m saying is, you’re saying that Mr. Ruff made the determination that, for purposes of one subpoena, these documents that

Mr. Haas uncovered were duplicative and, therefore, they were not

submitted pursuant to that one subpoena.

Ms. NOLAN. That’s the only problem he understood might have

existed.

Mr. BARR. Were those documents then submitted to any other

outside requestor, such as the independent counsel, the party to

the civil action or the impeachment committee?

Ms. NOLAN. I am sorry. I don’t understand.

Mr. BARR. Maybe, counsel, you can ask with a little more clarity.

Mr. WILSON. Let me just pick up on something you just said

here.

Mr. BURTON. If the gentleman will yield. What they’re asking is,

the duplicates, were they provided to anybody other than——

Ms. NOLAN. No, I think that the——

Mr. BURTON. Once it was decided they were duplicates, you

didn’t provide them to anybody.

Ms. NOLAN. Not that I’m aware of, no. They were duplicates with

respect to a particular subpoena request by a particular investigator—I believe the independent counsel. If those e-mails were requested by another investigative body, the counsel’s office did give

them already. But I don’t know if they were, sir. The duplicate

search, however, as I understand, it was related just to this one request.

479

Mr. WILSON. Let me pick up on that, if I may, because everything you’ve said flies in the face of everything we’ve been told. You

just indicated that there was—what was taken to Mr. Ruff was

pursuant to a search request falling from a subpoena. What we

have been told—and disavow me of this error if I’m wrong—what

we were told is that individuals identified a problem and did a test

using a very prominent and in-the-news name at the time to determine whether there were documents in this vast universe of information that would be—that would show that there was, in fact, a

big problem.

And so, consequently, what we’ve been told is that there was not

a specific subpoena request trying to track down all the information pertaining to Monica Lewinsky. We’ve been told that there

were requests made, that there was a test made to see what was

in this universe of documents on the server at the time. And they

used the name Monica Lewinsky and they used some other names.

But what you’re telling us now is quite different. I wanted to followup on the point I’m just making.

Ms. NOLAN. Can I make clear that I’m telling you what I understand Mr. Ruff understood at the time? I cannot tell you what

search was actually done, as I’ve said, or what terms were used or

how it was decided to do it. I don’t know the answers to that. So

I don’t think what I’m telling you is different. I’m just telling you

what Mr. Ruff understood at the time.

Mr. WILSON. Right. I appreciate that. That’s why I asked my initial question, and that’s very helpful. But the search—and I guess

this goes to, you know, what happened in the meeting with Mr.

Ruff, trying to keep sight of the forest and get the trees out of the

way here. The search was a very, very insignificant type of search.

It wasn’t the search, from what we’ve been told, that White House

counsel’s office constructed to determine what would be responsive

to the Lewinsky subpoena. It was just a simple search asking for

information about Lewinsky and some individuals. And to my way

of thinking any responsible lawyer would have looked at that

search, seen there was a lot of documents, even say we ought to

do a really thorough search, but that’s not your understanding of

this.

Ms. NOLAN. It’s not my understanding that there—I don’t know

what Mr. Ruff knew about the search or the kind of search it was.

It’s not my understanding that he knew it was, as you characterize

it, a simple search or that it even was a simple search. I don’t

know, and I’m not able to testify about that.

Mr. WILSON. This is important to us because all day you’ve

been—represented that the Lewinsky documents were duplicative

and that went to the issue there’s not really a big problem here because these are duplicative documents.

Ms. NOLAN. I have been representing what Mr. Ruff and the

counsel’s office understood at the time, and I continue to represent

that. But I just want to make clear that that’s all I’m able to testify

about. I wasn’t there. I don’t have any independent understanding.

The Northrop Grumman employees who you had here last week,

who you were able to talk to, have been represented by Northrop

Grumman counsel. I’ve not talked to them. So my information is

480

as I’ve presented it. And I just want to be clear about what I am

testifying.

Mr. WILSON. OK. I understand. I just—to recapitulate, and I’ll

move away from this in a moment, but the point I guess I’m making is, our understanding—the search that was conducted was conducted to show that there was a systemic problem, a significant

issue had arisen. A search was conducted that showed, yes, there

was that problem. And your testimony—and I know you’re telling

us what Mr. Ruff has told you, but your testimony is that Mr. Ruff

did not perceive in the meetings that he had that there was a systemic problem. And our understanding is that everything that was

done showed that there was a problem with the system and yet it

seems that everybody but Mr. Ruff knew that there was a problem

with the system. And yet there is a disconnect here.

Ms. NOLAN. There is a disconnect. I think I testified to that. I

think there’s no question about that. That the people who knew the

technology knew things that the counsel’s office who are producing

documents did not know. There’s absolutely no question there was

a disconnect.

I do want to say again, though, that I don’t agree with the characterization that everyone else knew. I don’t have any information

that suggests that’s the case. Some people knew. The technical people knew. The e-mails that have been referred to throughout this

day don’t seem to have been sent beyond the technical people.

And it is also true that certain people in OA, other than the technical people who were sending the e-mails, did know that there

was a problem and have known that there was a problem. That

was—that disconnect occurred. There’s no question about that.

And the other thing I just wanted to mention is I don’t know Mr.

Ruff had meetings. You referred to meetings. I’m aware that he

discussed this with Mr. Lindsay. I don’t know, you know, if it was

in a face-to-face meeting, if there was more than one discussion. I

don’t know that.

Mr. WILSON. I can understand that. But one of the problems

we’ve had is you’ve had conversations with Mr. Ruff and you come

here and you’re not even sure if there were meetings on this subject, which obviously means we have to go into the next phase.

Let me leave that now, because there are two different opinions

on this matter at this point.

Earlier, a number of members had asked you questions about

when you first realized that something was wrong and that something needed to be done, and we sort of danced around the fact

there was a newspaper article and there was a filing in a civil lawsuit.

Ms. NOLAN. I didn’t mean to dance. I did not dance. If I was

dancing with someone, I was unaware of it.

Mr. WILSON. If you could try and pin it down with specificity,

when did you first know that you would have to go back and reconstruct the e-mails?

Ms. NOLAN. I can’t pin that down with specificity. I did not know

there was a problem that would require us to reconstruct until

sometime last month for purposes of our productions. I did know

in January that OA was going to reconstruct some things for Federal records. I just—and that they were going to proceed with that.

481

Sometime last month I realized that it was a problem that would

have affected our ability to retrieve certain e-mails that were requested.

Mr. WILSON. When you learned of the problem, when it first became apparent to you that there was this significant problem, did

you meet with the contract employees who—let me ask this. Have

you ever met with the contract employees who were originally

aware that there was a significant problem?

Ms. NOLAN. As I’ve said, almost right away, those contract employees were represented by Northrop Grumman counsel. We tried

to talk to their counsel several times. We weren’t able to talk with

them.

Mr. WILSON. Well, I have a recollection of that because I was

very involved. The newspaper article occurred, and there was a

number of weeks before Northrop Grumman counsel was retained.

Did you make an effort in the interim to——

Ms. NOLAN. We certainly talked to people in OA. I don’t know

who people in OA talked to. But they—of course, the contract employees—and I think there was testimony about this last week.

There are apparently quite strict rules about who in the complex

talk to contract employees and through whom, as I think you know.

Mr. WILSON. It’s correct to say then that, right after the newspaper article from the Washington Times that basically identified

this problem came out, you did not in the first week make an effort

to talk to the contract employees. Is that a fair characterization?

Ms. NOLAN. I don’t know. I just don’t know.

Mr. WILSON. Well, I guess if you could please tell us when you

first did make—provide for the written record afterwards.

Ms. NOLAN. What are you asking me to tell you? I’m sorry?

Mr. WILSON. When you first made an effort to reach out to the

contract employees to understand.

Ms. NOLAN. I will see if I can get that information.

Mr. WILSON. Just a couple last questions. One last subject.

This is due diligence here, because it’s a different type of document that we’ve had I guess misunderstandings with or problems

with. So I’ll ask you about telephone records so that we can get a

definitive answer about telephone records.

It’s been reported in the press—and, obviously, that doesn’t make

it right—but it’s been reported in the press that there are White

House telephone records dating back to 1993. Are you aware of the

existence of any telephone records related to any telephone calls

going either into or out of the White House?

Ms. NOLAN. I’m not.

Mr. WILSON. OK. Is this a subject that you’ve ever had any discussions about?

Ms. NOLAN. Certainly asked with reference to when this e-mail

issue came up. I was also made aware that there had at some point

been a claim about the telephone records. I asked one of the attorneys in my office who had handled the case, again, Michelle Peterson. She informed me that at the time she had spoken with Sheryl

Hall about the matter, who told her that there was no truth to that

allegation. We determined that there were no such records. That’s

what I thought about it.

482

Mr. WILSON. Who first made you aware of the allegations that

there were telephone records?

Ms. NOLAN. I don’t know. It came up at some point after I was

aware of this e-mail issue. I just don’t know who it was.

Mr. WILSON. Are you aware of whether any of your predecessors

in the White House counsel’s office have attempted to definitively

determine whether there are telephone records—and I’m being as

broad as humanly possible here—any type of record in any form

whatsoever relating to any type of telephone call, either coming out

of or going into the White House?

Ms. NOLAN. I’m not aware. I can tell you that when I was an associate counsel, at some point between 1993 and 1995, whoever

was counsel then, I believe it was Judge Mikva, asked me whether

we had the capability to retrieve certain telephone records. I made

an inquiry to the Office of Administration and was told we did not

and conveyed that to Mr. Mikva. That’s the only thing I know

about it.

Mr. WILSON. Well, I’ll leave this line of questioning.

But if you could provide for us a definitive answer. I know you’ve

told us right now that you’re not aware of any records. But if you

can check this and provide a definitive answer after the hearing as

to whether there are any records in any format whatsoever of telephone calls going into the White House or coming out of the White

House, if you could provide that for the record it we would be

greatly appreciative. Will you do that?

Ms. NOLAN. I certainly will look and see. We will get back to you

on that. I will provide them if I can, yes. So I will look and give

you an answer to your question.

Mr. WILSON. Thank you very much.

Mr. BURTON. Thank you, counsel. Counselor.

Mr. SCHILIRO. Ms. Nolan, in the interest of time, I will not ask

you a series of questions. The only question I have for you is, do

you have some information that you are willing to share or ready

to share with the committee today but nobody asked you the right

question? And so if there’s a question that you’re ready to answer,

but we just haven’t figured out how to ask it——

Ms. NOLAN. I don’t think so. I think I’ve—— Mr. SCHILIRO. Nothing else you want to say?

Ms. NOLAN. No, sir.

Mr. SCHILIRO. Thank you, Mr. Chairman.

Mr. BURTON. Let me conclude by asking one last question.

You keep using the term ‘‘subpoena request.’’ My counsel has noticed this time and again. And if you look at the documents we

served on you, they’re just called subpoenas. Why do you call them

‘‘subpoena requests?’’

Ms. NOLAN. I don’t know. It’s just how I refer to them.

Mr. BURTON. I just wondered if maybe there was a different legal

definition that the White House applied to our subpoenas because

they’re supposed to produce documents or appearances. You don’t

have any—— Ms. NOLAN. No. No. I—subpoena sometimes does have a number

of different elements of it. And it may be sometimes that somebody

talks about a subpoena request as an element of a subpoena. But

I am not sure that I use those terms consciously.

483

Mr. BURTON. All right. I want to thank you for your patience and

your ability to sit there that long and answer all the committee’s

questions. You have been helpful. And we will continue to pursue

this matter.

We stand adjourned.

[Whereupon, at 5:45 p.m., the committee was adjourned.]

(485)

WHITE HOUSE E-MAILS: MISMANAGEMENT OF

SUBPOENAED RECORDS—DAY THREE

WEDNESDAY, MAY 3, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

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

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Gilman, Morella, Shays, RosLehtinen, McHugh, Horn, Mica, Souder, LaTourette, Barr, Hutchinson, Terry, Biggert, Ose, Vitter, Waxman, Owens, Towns, Kanjorski, Mink, Sanders, Norton, Cummings, Kucinich, Blagojevich,

Davis of Illinois, Tierney, Turner, Ford, and Schakowsky.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Mark

Corallo, director of communications; M. Scott Billingsley and James

J. Schumann, counsels; Pablo Carrillo, Jason Foster, and Kimberly

A. Reed, investigative counsels; Robert Briggs, deputy chief clerk;

Michael Canty, legislative aide; Leneal Scott, computer systems

manager; Lisa Smith Arafune, chief clerk; Maria Tamburri, assistant to chief counsel; Corinne Zaccagnini, systems administrator;

Phil Schiliro, minority staff director; Phil Barnett, minority chief

counsel; Kenneth Ballen, minority chief investigative counsel; Kristin Amerling, minority deputy chief counsel; Paul Weinberger and

Michael Yang, minority counsels; Ellen Rayner, minority chief

clerk; and Jean Gosa and Earley Green, minority assistant clerks.

Mr. BURTON. Good morning. Good morning. A quorum being

present, the Committee on Government Reform will come to order.

I ask unanimous consent that all Members’ and witnesses’ written

opening statements be included in the record. Without objection, so

ordered.

I ask unanimous consent that all articles, exhibits, and extraneous or tabular material referred to be included in the record.

Without objection, so ordered.

I ask unanimous consent that the binder of exhibits that have

been prepared for the hearing and shared with minority staff prior

to the hearing be entered into the record, and without objection, so

ordered.

I also ask unanimous consent that questioning in this matter

proceed under clause 2(g)(2) of House rule 11 and committee rule

14 in which the chairman and ranking minority member allocate

time to members of the committee as they deem appropriate for exVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00493 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
486

tended questioning not to exceed 60 minutes equally divided between majority and minority. Without objection, so ordered.

I also ask unanimous consent that questioning in the manner

under consideration proceed under clause 2(g)(2) of House rule 11

and committee rule 14 in which the chairman and ranking minority member allocate time to committee counsel as they deem appropriate for extended questioning not to exceed 60 minutes divided

equally between the majority and minority. Without objection, so

ordered.

This week we will hold our 3rd and 4th days of hearings with

the White House’s failure to deal with the e-mail problem and their

failure to comply with subpoenas. Today we will focus on what was

happening in the Office of Administration. Tomorrow we will focus

on what was happening at the White House counsel’s office.

We just had a 2-week recess, but we’re pushing ahead with this

investigation. We’re conducting interviews. We’re reviewing documents. We’re learning more as we go along.

We’ve been working on this investigation for a little over 2

months now, and it’s very interesting to watch how the White

House behaves in these situations. The White House is behaving

exactly the way they do when they know they’ve done something

wrong and they’ve been caught with their hand in the cookie jar.

They are dusting off all of their old tricks that they used in 1997

and 1998 during the illegal campaign fundraising investigation.

They turn over embarrassing documents late on Friday evening.

They selectively leak problem documents over the weekend. It just

happened again last weekend. They claim bogus privileges over the

documents as a stalling tactic. People refuse to be interviewed prior

to hearings.

You may not admire their tactics, but you have to admire their

consistency.

When we held our first hearing with the Northrop Grumman

contractors, I tried to put this e-mail problem into context. I went

through a whole litany of the White House stalling tactics that we

had endured, refusing to turn over documents until we got fed up

and scheduled a contempt vote, the failure to turn over the White

House videotapes, withholding documents in the White House data

base investigation, claiming false privileges to delay document production.

Instead of going through the whole laundry list again today, I

think what I’ll do is let them speak for themselves in their own

words. A new book has just come out, Truth at Any Cost. It was

written by a Washington Post reporter and a Time Magazine reporter. They found out a lot about the way the White House operated. Herald Ickes, who is the deputy chief of staff, is quoted as

calling the White House approach a ‘‘foot-dragging, screw you attitude’’ approach. He apparently said it with a great deal of admiration. I cleaned up that quote just a little bit for the hearing room.

But I think you get the picture.

So they drag their feet, they try to run out the clock, and then

they blame the investigators for being partisan and taking so long.

There was another book about the White House written by Elizabeth Drew. She quoted another White House lawyer, Don Goldberg.

Here’s what he had to say, ‘‘it’s an obvious strategy. On the Hill,

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if you don’t have much to go on, you decry the partisanship, and

the print reporters will write in the first or second paragraph, and

the TV stories will begin, ‘In a hearing mired in partisanship,’ and

then they get to the subject of the hearing and you’ve won. That’s

Damage Control 101.’’

He goes on to say, ‘‘in a hearing, if you’re playing defense, the

goal is not to get your message out, the goal is to keep the other

side from getting their message out. Then you’ve won.’’

Well, that may be damage control 101, but it’s not public service

101.

What I don’t understand is why it is that the White House

spends so much time figuring out how to spin things when the

facts aren’t on their side and so little time trying to do things right

in the first place. I’m going to spend more time talking about this

tomorrow.

We have four White House lawyers on the schedule to testify:

former White House Counsel Charles Ruff, former Deputy Counsel

Cheryl Mills, Mark Lindsay from the Office of Administration, and

Associate Counsel Dimitri Nionakis. But today we’re going to focus

on the Office of Administration.

We’ve reviewed a lot of documents at this point. We’ve interviewed some people. We haven’t been able to interview others.

We’re starting to piece together the threads of what was happening. Hopefully by the end of this hearing, we’ll have a clearer picture.

Here are a few of the key points that are starting to emerge.

Point No. 1: The Northrop Grumman employees were threatened.

This is becoming more and more clear. On March 23, five Northrop

Grumman employees testified here. They said they were called to

a meeting right after they discovered that thousands, maybe hundreds of thousands, of e-mails hadn’t been searched for subpoena

compliance. They said they were ordered to keep it a secret. They

said they were ordered not even to tell their supervisors or spouses.

Some said they were threatened. One said he was told there was

a jail cell with his name on it.

The White House officials Laura Callahan or former Laura

Crabtree, and Mark Lindsay denied all of that.

On Monday we interviewed a higher-level Northrop Grumman

supervisor this past Monday, Joseph Lucente. He was three rungs

up the ladder from the Northrop Grumman employees at the White

House. In September 1998, he met with three of the contractors

who were at the meeting with Mrs. Callahan and Mr. Lindsay.

They had a long discussion about what happened. This was about

3 months later. So we asked Mr. Lucente, did your employees feel

threatened? Last Monday he said yes. Were they prevented from

talking to their superiors? Last Monday he said yes. Were they concerned that documents weren’t being searched to comply with subpoenas? Last Monday he said yes. So once again, we have contemporaneous testimony that what was—what they said was true.

Point No. 2: We’re getting more and more evidence that people

wanted to get this problem fixed, and they couldn’t get anyone to

approve fixing it. Northrop Grumman was trying to get it fixed.

Tony Barry was trying to get it fixed. Other people wanted to get

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it fixed, but they couldn’t get anyone higher up in the food chain

to approve it.

We have a whole series of e-mails from Tony Barry. He was frustrated. I’m going to read a couple of the messages. August 13, 1998, ‘‘as far as I can tell, there is no movement under way to fix the

problem and recover the lost records from the backup tapes.’’ Does

that sound familiar? ‘‘I am not at all clear what my role should be.

I feel that the records must be recreated and any searches need to

be reperformed if the requestors feel it is necessary. This seems

like a daunting proposition, but I do not see any other alternative.’’ September 10, 1998, ‘‘I am growing increasingly concerned about

the seeming lack of movement on the Mail2 problem. Do you know

where the hold up is. We have known about this problem for 4

months now and not a single record has been passed to ARMS.

Even worse, the root problem has not been fixed.’’ September 25, 1998, ‘‘It has been about 2 weeks since I sent my

last ‘concerned memo’ regarding the Mail2 problem and I am still

not seeing any movement on fixing the problem. I need to know,

for my own sanity, exactly what my role in this project should be.’’ It seems clear that Mr. Barry knew that the Presidential Records

Act wasn’t being followed, and he was trying to get someone to pay

attention to it. He was also the guy who was responsible for conducting e-mail searches when subpoenas came in, and he knew

they weren’t being done correctly, and he was probably worried

about that in the compliance with the subpoenas.

Point No. 3: There was a hearing coming up before the Appropriations Committee in March 1998, and they were not sure how

to handle it. Mark Lindsay, the director of the Office of Administration, testified at that hearing in 1999. The White House e-mail

problem never came up, but the documents seem to indicate that

there was a long debate over whether to ask Congress for money

to fix the problem. If they asked for the money and they got it,

then they could get the problem fixed. But it was a double-edged

sword. If they revealed the problem by asking for the money, then

Congress would know that document requests and subpoenas had

not been complied with.

We have a copy of annual e-mail from Karl Heissner, who is here

today. I hope you’ll put exhibit No. 81 up on the screen. And here’s

what it says, ‘‘while I’ll be glad to write up something related to

the ‘Information Requests’ channeled to us via White House Counsel in response to various requests from Congress and litigants

against the Government, we may not want to call undue attention

to the issue by bringing the issue to the attention of Congress because,’’ and then the sentence kind of ends. There’s no period. And

it looks like there may be some words erased there, but it says, We

may not want to bring the issue to the attention of Congress because, and then it kind of drifts off, and then the sentence ends.

And the next paragraph states, ‘‘Last year’s hours consumed by

SID staff amounts to only over a little over 500, This year’s hours

consumed so far amounts to only 65, and The level of requests appears to be declining.’’

And then he concludes by saying, ‘‘Let sleeping dogs lie. . .’’ I

think translated that means let’s keep a lid on this, and don’t let

Congress and the independent counsels know about it. I don’t like

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the sound of it. When you hear that kind of talk from a political

appointee, it’s disappointing, but I come to expect it. When I hear

it from a career employee, something is wrong, so we would like

to know what Mr. Heissner was talking about here.

And then there was a lot of back and forth on the talking points

Mark Lindsay would use if this came up in a hearing. It seems that

some versions were more candid than others.

[Exhibit 81 follows:]

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Mr. BURTON. We have another e-mail from Mr. Heissner. He’s offering some edits to the talking points. I’d like to have exhibit 92

put up on the screen. I hope we can see that. My gosh, it’s small.

Wonder why we can’t get that stuff blown up.

At first he basically states, here’s the current—listen to this—at

first he basically states, here’s the current version of the talking

points, and then he lists them. Then he states the more nearly accurate version. The more nearly accurate version. Who is putting

together inaccurate talking points? And if this is the more nearly

accurate version, where is the really accurate version?

[Exhibit 92 follows:]

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Mr. BURTON. The bigger, more important question is why didn’t

the White House just come clean and tell Congress about the problem as well as the independent counsels? Now, Karl Heissner was

not the decisionmaker in all this. I don’t know him. We haven’t

been able to interview him. I’m just going to assume that he’s a

great human being and a dedicated public servant, but there are

some serious issues here that need to be addressed. There was a

lot going on, and we need to understand it.

Point No. 4: The White House counsel’s office got a second briefing on the e-mail problem. During the last hearings we held, we

learned that Mr. Ruff got a briefing on the e-mail problem from

Mark Lindsay on June 19, 1998. We talked to Mr. Ruff. We’ve had

testimony from Beth Nolan. We’ve been told there was a disconnect. Mr. Ruff and the counsel’s office did not understand how

serious the problem was. Get that. Subpoenas have been issued by

our committee, by other committees and the independent counsels,

but they didn’t understand how serious all these missing e-mails

were.

Last week we interviewed Michael Lyle. He’s now the director of

the Office of Administration. He moved up to Mark Lindsay’s job

when Mark Lindsay got a promotion. Mr. Lyle told us that there

was a second briefing for the counsel’s office, but that was news to

us. He stated that in the spring of 1999, he was informed of the

second e-mail problem, the letter D problem. He told Mark Lindsay

about it. Mark Lindsay told him that he had briefed the counsel’s

office. Who did he talk to at the counsel’s office? We don’t know yet.

Mr. Lindsay will be back tomorrow, and we’ll ask him, but the

point is there was a second briefing in less than a year, and still

no action was taken to correct the problem, to inform Congress or

the Justice Department or the independent counsels.

So there’s a second briefing, you know, and they still didn’t tell

anybody about it. Was there a second disconnect? Did the counsel’s

office understand the second time around and just decide not to do

anything about it? Those are questions I hope we can resolve tomorrow.

Let me end up by concluding in my opening statement that for

almost 2 years the White House knew that the subpoenas weren’t

being complied with, and nothing was done about it until it appeared on the front page of the Washington Times and my committee started interviewing people. Somebody should be accountable

for that.

You know, Richard Nixon was run out of office for 181⁄2 minutes

of tapes. We had a President run out of office because of the missing tapes, 181⁄2 minutes. Here we have hundreds of thousands of

e-mails, and the White House has stonewalled the Justice Department, the Congress, several independent counsels, all of whom

were interested in what might be in those e-mails, and not only did

the White House know about them, but they covered it up over the

past 2 years. And there was not just one meeting about this, there

were two meetings at different times.

The American people ought to be outraged. If Richard Nixon was

run out of office for 18 minutes of tapes, what does that mean

about the media and the reporting of all this when we’re talking

about hundreds of thousands of e-mails? And the White House is

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now saying, well, it may take 6 or 8 months for them to get a contractor to get all this whipped into shape. We believe in a matter

of weeks we can hire a contractor to pick out specific words and

names and get these e-mails, the ones that are relevant to various

investigations, to the various independent counsels, the Justice Department and our committee in a short period of time.

But the White House has said they’ve hired contractors and it’s

going to take 6 to 8 months. Do you know when the election is? It’s

in November. So they are going to try to once again run out the

clock.

Mr. Heissner and Mr. Lyle, I want to thank you for being here.

I’m sure you’d rather be someplace else; however, I hope you will

be direct and straightforward and try to help us understand what’s

going on.

We’ll also hear from Assistant Attorney General Robert Raben on

our second panel. We have a number of questions for Mr. Raben

about the Justice Department’s role in these matters and subpoenas we’ve issued for Justice Department documents. I hope we can

make some headway with Mr. Raben today.

I now yield to Mr. Waxman.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. WAXMAN. Mr. Chairman, in the spirit of trying to expedite

these hearings, I won’t make an opening statement, certainly nowhere near the opening statement the length of that which you

just delivered, but I do want to point out before we begin that your

opening statement was filled with inaccuracies, omissions, that I

think distort the facts of the issue before us today. And I was taken

aback by your close because not only are you rewriting the events

with regard to the White House e-mails, you have rewritten history

with regard to why Richard Nixon was impeached by the House

and forced to resign. It was not because of 18 minutes of missing

tape.

I know that there are many people who are disappointed you

can’t run this President out of the White House, because the Constitution requires you have a reason to do it more than the fact

that you dislike him enormously.

I look forward to the testimony of our witnesses today. I want us

to get the facts, and then we’ll see what conclusions we can draw

from the facts. What we’ve heard were a lot of conclusions, and I

know you’re trying to see if the facts will fit your conclusions, but

let’s evaluate it on the testimony we’re to receive. I look forward

to hearing from our witnesses. I yield back my time.

Mr. BURTON. We’ll now welcome our first panel to the witness

table, Carl Heissner and Michael Lyle. Would you please stand and

raise your right hands, please.

[Witnesses sworn.]

Mr. BURTON. Do either one of you have an opening statement?

Mr. Heissner, you want to start?

STATEMENT OF KARL HEISSNER, BRANCH CHIEF FOR SYSTEMS INTEGRATION AND DEVELOPMENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION

Mr. HEISSNER. I have an opening statement which I delivered to

the committee yesterday which is included in your record. I don’t

think it’s necessary for me to read it unless you wish me to.

Mr. BURTON. You want to let your prepared statement speak for

itself?

Mr. HEISSNER. Correct, sir.

[The prepared statement of Mr. Heissner follows:]

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Mr. BURTON. Mr. Lyle.

STATEMENT OF MICHAEL LYLE, DIRECTOR, EXECUTIVE

OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION

Mr. LYLE. Thank you, Mr. Chairman. I do not have a written

opening statement that I submitted, but I do want to emphasize to

you that I have cooperated with your committee, as has my staff.

I participated in an almost 4-hour interview with five of our attorneys before I came here to this committee to testify here again, and

I’m prepared to answer any questions that you may have in an effort to cooperate in this matter.

I know that my staff members—at least 10, maybe 12 members

of my staff have also been requested for interviews, and I know

they are working with your attorneys to do that. So I want to emphasize to you that we are working and endeavoring to cooperate

with you as best we can.

Mr. BURTON. Does that conclude your opening statement?

Mr. LYLE. Yes, sir.

Mr. BURTON. Thank you.

Mr. Heissner, I appreciate that you aren’t a political appointee.

This isn’t easy, and I want to thank you for being here. We were

hoping you would be available for an interview before this hearing,

but evidently he was not available for a interview; is that correct?

Mr. BARR. Mr. Chairman, could I ask you to identify the third

party at the table, who he is, if he’s representing somebody?

Mr. BURTON. Are you the legal counsel for Mr. Heissner?

Mr. ZWERLING. My name is John Zwerling, and I’m legal counsel

for Mr. Heissner.

Mr. BURTON. Mr. Heissner evidently was not available for questioning by the counsel for the committee.

Let’s get right to the questions. Sometime in November 1998, you

were given the responsibilities of managing phase 2 of the Mail2

project; is that correct?

Mr. HEISSNER. That’s correct, sir. A number of us that were involved or had responsibilities related to the particular issue met,

and it was agreed that the responsibility for the recovery, for developing the software to perform the recovery of un-records-managed

records would be the responsibility of the Systems Integration and

Development Branch, which I was heading at the time.

Mr. BURTON. That was in November 1998?

Mr. HEISSNER. That’s correct, sir.

Mr. BURTON. What was phase 2 of the Mail2 project?

Mr. HEISSNER. When you take a look at the record, there are a

number of phases, 1s, 2s, and 3s. I believe in that instance the

phase 2 was understood to be the development of an application of

software, of a system that would take the backup tapes that had

been taken over previous months and years, would take those

backup tapes and bring them back onto a computer and then extract from the data that was restored the e-mail messages which

had not been records managed.

Mr. BURTON. Was it not also to make sure that future incoming

e-mails were archived?

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Mr. HEISSNER. That particular project would not address ensuring that future records would be archived. That was a separate

process.

Mr. BURTON. The White House took steps to meet its legal obligations to produce documents only after this committee began to

investigate. Why did Congress have to hold hearings to get the

White House to give us that information, to do the right thing?

Mr. HEISSNER. I have no knowledge of the rationale behind that,

sir.

Mr. BURTON. You were the chief technician. Did you ever feel

frustrated that the White House didn’t do anything in 1998 or 1999

to comply with our subpoenas and give us the information?

Mr. HEISSNER. I have—it’s difficult for me to imagine that we

didn’t comply with subpoenas. At the time the recovery of the

records was a responsibility of mine, and at the time my concerns

were that we develop an application that would recover the data.

The concern subsequently became to make sure that the backup

tapes which had been taken were not being recycled or reused so

that the data eventually could be recovered.

Mr. BURTON. Eventually?

Mr. HEISSNER. Yes, sir.

Mr. BURTON. Did you feel that a lot of effort was being made to

solve the problem in 1999?

Mr. HEISSNER. By 1999, the problem of those 400, 500 accounts

which had not been encoded properly, and therefore the incoming

e-mail that was coming from outside the complex had not been

records-managed, had been corrected. At the time the contractor

staff, the Northrup Grumman staff, was involved in developing

some software that would make sure that the system functioned

properly, and there would be no more non-records-managed emails.

Mr. BURTON. Can you tell me why it took congressional hearings

to force the White House to make an effort to solve the e-mail problem?

Mr. HEISSNER. No, sir, I can’t.

Mr. BURTON. Put up exhibit 81 on the screen, please.

Before we get that, Mr. Lyle, can you tell me why it took congressional hearings to force the White House to make an effort to solve

the e-mail problem?

Mr. LYLE. I don’t believe it took congressional hearings to have

the White House solve any e-mail problems, sir.

Mr. BURTON. Why wasn’t Congress notified about the e-mail

problem? Why didn’t we get any of the information we subpoenaed?

And why didn’t the independent counsel, and why didn’t the Justice Department?

Mr. LYLE. I’m not aware of the communications that occurred between the White House counsel’s office and this committee relative

to——

Mr. BURTON. You didn’t know anything about the subpoenas we

sent for all kinds of information involving a number of investigations?

Mr. LYLE. Sir, I joined the Executive Office of the President in

November 1998, so I have no personal knowledge.

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Mr. BURTON. Did you have any communication at all with the

counsel’s office?

Mr. LYLE. During what timeframe, sir?

Mr. BURTON. Since you were hired.

Mr. LYLE. Certainly I had communications with White House

counsel, yes, sir.

Mr. BURTON. You knew there was an e-mail problem. Did they

ever—you talked to them about the e-mail problem, didn’t you?

Mr. LYLE. My most vivid recollection of learning about the eMail2 problem that you’re referring to was in around April 1999 in

connection, as you mentioned in your opening statement, with the

letter D issue. That’s in the context of that particular discussion.

Mr. BURTON. Did you talk to the counsel’s office at all about the

e-mail problem, anybody in the counsel’s office?

Mr. LYLE. I have had communications.

Mr. BURTON. If you talked to people in the counsel’s office, did

they say anything about subpoenaed documents from any of the

independent counsels or our committee or Justice?

Mr. LYLE. There was a briefing I participated in in January of

this year, January 2000, where I discussed that issue, sir.

Mr. BURTON. When did you come to work for them?

Mr. LYLE. I joined in November 1998.

Mr. BURTON. When did you assume the position that you have?

Mr. LYLE. I assumed that position on January 30 of this year.

Mr. BURTON. But you were involved in the e-mail problem when?

Mr. LYLE. The e-Mail2 problem?

Mr. BURTON. Yes.

Mr. LYLE. I learned about it, as I said, in about April 1999 in

connection with, as I recall, the letter D problem.

Mr. BURTON. That’s a year ago. And you communicated with the

counsel’s office?

Mr. LYLE. No, sir.

Mr. BURTON. You did not communicate with counsel’s office?

Mr. LYLE. I did not.

Mr. BURTON. They knew about the e-mail problem. Did they not

talk to you about it at all?

Mr. LYLE. I conveyed—as you said in your opening statement, I

conveyed the information concerning the letter D issue to my superior Mark Lindsay, who spoke to counsel’s office.

Mr. BURTON. Put up exhibit 81 on the screen.

This document was produced to the committee by the White

House after our first two hearings on the subject and 3 weeks past

the due date of our subpoenas. As usual the White House sent it

to us late on a Friday night. It appears to be an e-mail from you,

Mr. Heissner, but the document lists no recipient. It’s dated February 5, 1998, and there two lines labeled ‘‘Issue.’’ One reads,

‘‘Mail2 Reconstruction.’’ The other reads, ‘‘Information Requests.’’

Who was the original recipient of this e-mail?

Mr. HEISSNER. Sir, I think exhibit 82 shows to whom this e-mail

was sent. The copy that you’re looking at in exhibit 81 was a result

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of pressing the send key before I had entered the subject and recipient. That happened at 9:06 on February 5th. On exhibit 82 is the

message that actually was sent to Mrs. Cleal at 9:08, and it has

the recipient, and it has a subject line.

[Exhibit 82 follows:]

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Mr. BURTON. Was that the original recipient; Ms. Cleal?

Mr. HEISSNER. That’s correct. In the e-mail system, we have—it’s

possible—it’s a flaw in the system. It’s possible to send an e-mail

which has no recipient.

Mr. BURTON. Why is the recipient not listed on that document?

Mr. HEISSNER. Because it was a mistake. I pressed the send key

before I entered the recipient’s name.

Mr. BURTON. It was a mistake?

Mr. HEISSNER. Yes, sir.

Mr. BURTON. Did you send a blind carbon copy of this e-mail to

anyone?

Mr. HEISSNER. Not to my knowledge, sir, no.

Mr. BURTON. Not to your knowledge?

Mr. HEISSNER. I can’t tell by looking at this, sir, but I’m sure I

didn’t send a blind copy to anyone.

Mr. BURTON. You’re sure you didn’t send a blind copy to anyone?

Mr. HEISSNER. I can’t be totally sure without looking at the original.

Mr. BURTON. It’s pretty important, because you may have sent

one to the counsel’s office or something. We just want to know. Did

you send a copy to anybody besides her?

Mr. HEISSNER. To the best of my knowledge, no, sir.

Mr. BURTON. Do you know how many times we’ve heard ‘‘I can’t

recall’’ and ‘‘to the best of my knowledge’’ from witnesses from the

White House? We ought to get a number of that. It must be in the

hundreds.

Did anyone else get a copy of this e-mail?

Mr. HEISSNER. Would that be from me, sir, or from anybody else?

Mr. BURTON. From you, or if you know of anybody else who got

a copy of e-mail?

Mr. HEISSNER. It could have been forwarded by the recipient,

that’s possible, and I would not know if that happened, sir.

Mr. BURTON. Did you discuss this e-mail with anyone else?

Mr. HEISSNER. At that time that it was sent, sir?

Mr. BURTON. Yes.

Mr. HEISSNER. Frankly, I don’t recall.

Mr. BURTON. You don’t recall?

Mr. HEISSNER. No.

Mr. BURTON. The first paragraph of the document reads, ‘‘While

I’ll be glad to write up something related to the ‘Information Requests’ channeled to us via White House Counsel in response to

various requests from Congress and litigants against the Government, we may not want to call’’—you say, ‘‘We may not want to call

undue attention to the issue by bringing the issue to the attention

of Congress because,’’ and then it kind of drifts off. The sentence

is incomplete.

Mr. HEISSNER. That particular paragraph, sir, is addressing the

issue of information requests during 1997, 1998, 1999. We had received many requests for information where it related to the White

House data base. In 1997, we expended on the order of 3,000 or

more hours of staff time to retrieve information and make it available in response to subpoenas. During that year I had spent well

over 1,000 hours, at least I recorded over 1,000 hours and probably

more in responding to these requests, as you may recall. So what

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I’m addressing in the issue information requests is the question

was should we bring to the attention of Congress we’re spending

an enormous amount of time responding to subpoenas and other requests for information related to WhoDB, and my response was,

well, we don’t really need to bring this issue up again because— and the way this was—the original reads, and it doesn’t show here,

they are bullets, little bullets in front of each of those three sentences, which starts with last year’s, this year’s and the level. So

the memorandum or the text here had the intention of saying let’s

not raise this. We don’t need to have things stirred up and have

more requests coming in—— Mr. BURTON. Sir, that isn’t going to wash, because we had already sent subpoenas to the White House, to the counsel’s office on

a whole host of issues, and the law requires that you respond to

subpoenas, and for you to say, ‘‘We may not want to call undue attention to the issue by bringing the issue to the attention of Congress because,’’ and then it drifts off, we had already issued subpoenas. Why is that sentence not complete?

Mr. HEISSNER. Sir, the sentence is complete because it has a because clause and three bullets, which don’t show here, a period,

and then the infamous quote here, ‘‘Let sleeping dogs lie.’’ Mr. BURTON. Tell me, where are the bullet points? We don’t see

them on here.

Mr. HEISSNER. They don’t show on this particular document.

Mr. BURTON. Why don’t they show? If the sentence ends with ‘‘because,’’ and there are no bullet points, and there’s two vacant

lines there, why aren’t the bullet points in there?

Mr. HEISSNER. The retrieval mechanism of records-managed

records does not retrieve all the graphics that are present in the

original.

Mr. BURTON. There’s no period at the end of the sentence.

There’s no other mark that would indicate that there’s three bullet

points.

Mr. HEISSNER. It doesn’t show in the retrieved records. The original does show. There’s a bullet. They are either lower case or in

some cases——

Mr. BURTON. Why didn’t we get that?

Mr. HEISSNER. It is part of the mechanism of retrieving.

Mr. BURTON. Why didn’t we get that? You don’t know.

Mr. HEISSNER. I don’t know.

Mr. BURTON. Who asked you to write up something related to information requests?

Mr. HEISSNER. As I recall, I received a telephone call during that

week to address these two issues, Mail2 reconstruction and information requests.

Mr. BURTON. From whom?

Mr. HEISSNER. Best I remember, it was the person who I was reporting at the time, Dotty Cleal, who is the Associate Director for

Information Systems.

Mr. BURTON. Why did you want to avoid—I think you’ve answered this. Why did you want to avoid bringing the issue to the

attention of Congress? Because it involved more work?

Mr. HEISSNER. My perception was these requests for information

that we received—and we certainly executed faithfully—the reVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00537 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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quests were detracting from our regular work, and if we had fewer

of those, we could get the work done that we were there to do. It

wasn’t an attempt to say, don’t provide the information, it was just

let’s—these requests have declined. We have not—we did not

spend—we have not needed to spend more time to respond to them,

and I think we’re fine here. We don’t need to ask for money to pay

for this.

Mr. BURTON. Let’s take a minute and go over what we know.

People at the White House administration were concerned that this

e-mail problem was got getting solved. Employees felt threatened

and intimidated. They were told they couldn’t even speak to their

bosses, and one was threatened, he thought, with jail; two were, as

a matter of fact. One was so scared she said she’d rather be insubordinate than go to jail. Another said that there was a jail cell with

his name on it. Northrop Grumman wrote several memoranda saying they couldn’t proceed without direction from the White House.

The President’s deputy chief of staff was told about the problem.

The counsel to the President, Chuck Ruff, was told about the problem. Later Mr. Lindsay, who is now an assistant to the President,

went back to the White House counsel’s office and told them about

another problem where documents were not being retrieved. And

the White House’s problem was not a secret, that people were

threatened and felt scared to talk about it.

So I want to know the answer to the one really important question. Why not tell Congress about the problem, No. 1; and then

what do you mean by let sleeping dogs lie?

Mr. HEISSNER. What I meant by that was that since we—since

the number of inquiries, number of subpoenas related to information residing in the White House data base had diminished, we

don’t need to go to Congress to ask for funding to pay for the cost

of performing these information requests.

Mr. BURTON. Excuse me. The White House data base wasn’t the

only thing that was under subpoena. There’s a whole host of subpoenas that were out on a whole bunch of issues, the espionage

issue, the campaign finance issue, Waco, a whole bunch of things.

Did you know anything about those? It wasn’t just WhoDB?

Mr. HEISSNER. I was aware of many of those.

Mr. BURTON. You were aware?

Mr. HEISSNER. I was aware of many of the requests because the

requests would be sent to IS&T staff through e-mail, and we would

respond to them, but the primary time consumer of requests had

to do with the White House office data base.

Mr. BURTON. In any event, you said, let sleeping dogs lie. You

knew about all these subpoenas. You knew this information was legally requested and should have been given to the Congress of the

United States. And you sent a memo around saying, hey, let’s let

sleeping dogs lie, and the subpoenas were not complied with. And

this is 2 years ago, and I don’t know what we’re going to hold you

responsible for that, but the fact of the matter is you knew those

subpoenas were in order. You knew that information should go forward, and you said, in a memo, let sleeping dogs lie.

I’m now going to yield to Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

531

Mr. Chairman, I think you asked a very relevant question. During the time that I served as a U.S. Attorney, if we had sent a subpoena to a witness or a custodian of records, and they replied back

either directly or in this case indirectly, let sleeping dogs lie, that

would be considered evidence of obstruction of justice. Does that

concern you, Mr. Heissner?

Mr. HEISSNER. It certainly does. There was no intention or attempt to obstruct justice in any form.

Mr. BARR. I’m sure that neither you nor other people—or I would

presume you didn’t have a thought process and the words ‘‘I am

going to obstruct justice’’ went through your mind. I would certainly hope not. However, as the chairman has indicated, you were

aware as you were of these probes, you were aware of a problem,

you were aware that this problem entailed information that was

being sought by various entities in this case, an independent counsel, more than two, or at least two committees of the Congress, and

your directive is to let sleeping dogs lie, which in common parlance

means disregard this, ignore it, don’t worry about it, that can be

evidence of obstruction of justice.

Mr. HEISSNER. The intention of this sentence was to not request—not to raise the issue of information requests and the effect

it had on the staff of IS&T as an issue of asking for additional

funding. The effect of the request having to do with the White

House office with the WhoDB data base had been significant upon

our staff, and that was uppermost in my mind. As other requests

would arrive, all of us, including myself, would look at those requests, would consider if the information requested was in our

records. If it was, we would provide that information through channels. That was the normal process, and in most cases those requests involved information about individuals, which, in the environment in which we found ourselves and the kinds of things we

did, we would not have any information about individuals.

Mr. BARR. Your service in the government spans several different

administrations, including the administration of George Bush and

his counsel, Mr. C. Boyden Gray. It seems like not just a decade

ago, but ages ago that we had an administration whose thought

process placed uppermost in their minds scrupulous adherence to

the law and to err on the side always of providing more information rather than less, more information rather than what might be

strictly technically required by looking at the four corners of a subpoena or some other documentation.

Can you pinpoint when we moved from that notion of public service in compliance with the public interest to something else being

foremost in the minds of those to whom subpoenas are directed or

who have custody over government records subject to subpoena?

Mr. HEISSNER. No, sir, I have no idea when that change happened. It is not in an area that I deal with.

Mr. BARR. It is because you told us what was uppermost in your

mind. What I’m saying is there used to be a day, and hopefully

that day will come again, when a public official at the White House

always keeps foremost in their mind not the cost of something as

an excuse for not complying or not furnishing information, but

what can I do to make sure that the public interest is respected

to the degree so that we are going to go the extra mile not to cover

532

up, not to not furnish information, but to furnish information. I

don’t know when that change took place, but it has taken place. It

is relevant for purposes of your appearance here today because

you’ve used those words, what was uppermost in your mind or foremost in your mind, and to see something written, to let sleeping

dogs lie, is very, very disturbing both from a public policy standpoint as well as from the standpoint—and I don’t know what Robert Ray is looking at—but from the standpoint of possible obstruction of justice.

If I were you, and I don’t know whether your counsel has any

concern about this, but it raises very troubling questions in our

mind about obstruction of justice, and I suspect that’s why the

independent counsel may be looking at this as well. I think the

chairman, despite the constant efforts to downplay and denigrate

the work of this committee by the folks on the other side, has

asked a very legitimate question, and simply saying, well, something related to the cost—we heard this from Mr. Lindsay, he tried

to say this was an issue of cost or whatnot rather than scrupulous

effort to comply I think is a very legitimate question and one that

ought to concern you.

Mr. HEISSNER. It certainly is, sir, but as I’m looking at this

memorandum, maybe I need to explain that there are two issues

that are being addressed. The issue, if you take a look in the paragraph which is, ‘‘Note:’’ ‘‘Issue: Mail2 Reconstruction (document attached),’’ and then below the dotted line it will say, ‘‘Issue: Mail2

Reconstruction,’’ and it provides a background and definition of the

problem for Mrs. Cleal.

The paragraphs which you are questioning are related to a request for information from Mrs. Cleal about the effects that various

information requests are having on the IS&T staff and whether it

should be brought up as an issue that might perhaps warrant additional funding for the organization, and my response was, well, the

level of effort required to accommodate this request and the requests are declining, and at this point we don’t need to ask for additional funding, so let’s not even mention that we need funding for

this because we don’t need it right now, not for the purpose of answering information requests.

So there are two topics on this. Maybe that’s the confusion, sir.

Mr. BARR. It would be nice if it were just a matter of confusion.

We’ll have to see. I think it illustrates and may be evidence of a

mindset that disturbs the chairman very greatly and legitimately,

which we’re going to inquire further, and as I say, I suspect the

independent counsel is as well.

Mr. Lyle, if I could go back to ask some fairly specific background

questions. When was it that you first learned about the Mail2 problem?

Mr. LYLE. My most vivid recollection is in April 1999, thereabouts, in connection with the letter D problem, the second anomaly that we’ve been discussing.

Mr. BARR. This was approximately 6 months after you began

your work in the Office of Administration?

Mr. LYLE. Yes, sir.

Mr. BARR. Where were you just prior to your work in the Office

of Administration?

533

Mr. LYLE. I was in private practice in Chicago.

Mr. BARR. What research have you done to satisfy yourself, as

I’m sure as a public servant you would, when this issue first came

to the attention of the Office of Administration?

Mr. LYLE. Which issue, sir?

Mr. BARR. The issue of the Mail2 problem.

Mr. LYLE. The discussions that I had in connection with the letter D matter were with Mr. Lindsay and other members of my

staff, and in the course of those discussions, as I said, I learned

about the e-Mail2 is my most vivid recollection of that. And he had

explained that in dealing with the Mail2 issue, that he had communicated that issue to—I’m sorry, the e-Mail2—did I say the eMail2—the e-Mail2 problem, he communicated that to White House

counsel’s office, and that he had handled that matter, and I was

satisfied that Mr. Lindsay, who was my predecessor in my position,

who was my superior, and who I have known for a long time, had

taken steps to convey the information for the White House counsel

to handle.

Mr. BARR. When did he indicate to you that had taken place?

Mr. LYLE. In that April 1999 meeting.

Mr. BARR. When did he communicate to you that he first became

aware of the Mail2 problem?

Mr. LYLE. As I recall it, it was in June 1998 timeframe that he

became aware of it, as I recall what he said.

Mr. BARR. And you are aware, at least as you sit here today, that

the Office of Administration became aware of the problem in very

early 1998 initially?

Mr. LYLE. I know that there were some reports about the problem. I don’t know—January 1998, I don’t know exactly when that

was.

Mr. BARR. You’re aware of the fact certainly through following

these proceedings, as I’m sure you have, and in preparation therefore that January 1998 was the time in which there were actual

communications?

Mr. LYLE. All I can tell you from my personal knowledge, sir, is

that in the meeting that I had in April 1999 when I was learning

more about the e-Mail2 issue, that I was told that—my understanding is that Mr. Lindsay was aware in the June 1998 timeframe about what happened in January 1998. I know others have

discussed that, but as I sit here, I cannot tell you what that was.

Mr. BARR. When you discussed with Mr. Lindsay the communication of this information with the White House counsel, what manner was that communicated to White House counsel, and to whom

were the records themselves delivered?

Mr. LYLE. In my meeting with Mr. Lindsay, he conveyed to me

that he had met with White House counsel. At that time it would

have been Mr. Ruff. As far as documentation, I believe that there

was some memo that he had submitted to his superior, Mr. Lindsay had submitted to his superior, concerning the e-Mail2 issue.

Mr. BARR. How about the group of missing and reconstructed emails delivered to the White House counsel’s office? When did Mr.

Lindsay indicate that took place, and to whom were those delivered?

Mr. LYLE. I don’t believe we discussed that in the meeting.

534

Mr. BARR. Did you discuss that at a later date?

Mr. LYLE. I have.

Mr. BARR. Would that not have been relevant?

Mr. LYLE. Again, I was learning more about it from a background point of view because we were addressing the letter D issue

in that timeframe. I don’t recall that having been raised at all, so

I can’t say any details about what happened. I’m not sure which

documents actually, sir, you’re referring to.

Mr. BARR. After the problem was initially discovered by Northrop

Grumman employees, and this was the subject of to some extent

the discussion here in the March 23 hearing, there was a very

large group of documents that were pulled up, e-mails, after a

search, initial search, was conducted of certain names in order to

verify presumably the extent of the problem. Those were delivered

to the White House and have mysteriously disappeared. I’m wondering if you ever had any discussion with Mr. Lindsay about those

documents, those e-mails.

Mr. LYLE. No, sir, I did not. I am aware since, based on what

you’re talking about, that Mr. Lindsay did, as I understand it, deliver documents to the White House counsel’s office, and I think

you talked to him about it in your hearing with him that you’re referring to in March of this year.

Mr. BURTON. My time has expired, Mr. Barr.

Mr. Waxman.

Mr. BARR. Thank you, Mr. Chairman.

Mr. WAXMAN. Mr. Heissner, Mr. Lyle, I appreciate your being

here to answer questions.

Mr. Heissner, you indicated in your written statement that

you’re not a political appointee, are you?

Mr. HEISSNER. That’s correct, sir.

Mr. WAXMAN. Tell us what you’ve been doing and how long

you’ve been there.

Mr. HEISSNER. I’ve been working for the Federal Government for

almost 25 years. I started with OMB, worked during the Ford administration, Carter administration, and subsequently right on

through the Clinton administration. The majority of my time was

in support of OMB’s budget preparation system. When OMB went

to go to contractors for support, then I served as the data base administrator for the Office of Administration data center, EOP data

center. These have all been technical positions, which is where my

interests and my expertise lie.

Mr. WAXMAN. I’m just shocked at the questioning you’ve had so

far from the chairman of the committee and Mr. Barr because I

think they’ve impugned your integrity. I don’t think they have any

basis for it, any justification for it, and it seems to me their complaint is you’re not giving them the answers they would like you

to give because they want to go after this administration. They

want to paint a certain picture, and you’re not giving them testimony to fit. Now, that’s no reason to act as if you are lying to this

committee. Are you lying to this committee?

Mr. HEISSNER. No, sir. Absolutely not.

Mr. WAXMAN. You know you’re under oath.

Mr. HEISSNER. Yes, sir.

535

Mr. WAXMAN. Let’s try to sort through what the real facts are on

this issue. It’s sort of Orwellian that the chairman has this exhibit

up of your e-mail, and everything is highlighted except one line,

and that is the issue. The issue is information requests, because

that e-mail didn’t have to do with missing e-mails from the Mail2

system. It had to do with information requests from the Congress;

is that correct?

Mr. HEISSNER. That’s correct, sir.

Mr. WAXMAN. That had to do with preparing Mr. Lindsay, who

you work for, to go before the House Appropriations Committee or

the Senate Appropriations Committee to talk about the budget. As

I understand, what you’re telling us is that you suggested rather

than complain about all the requests that you’ve been getting for

information from the Congress, and I must say particularly from

this committee, you didn’t want to suggest that perhaps those information requests had been reduced, because if you suggested the

information requests might be fewer than they had been in the

past, it might trigger the Congress to start sending more information requests. Is that what you meant by let sleeping dogs lie?

Mr. HEISSNER. That’s exactly correct, sir.

Mr. WAXMAN. People may not realize it, but this committee has

caused you, as a technical person, having worked for many administrations, to spend—I don’t know—6 months is the estimate I

got—of your time simply answering requests from this committee

on the White House data base. Is that accurate?

Mr. HEISSNER. That’s accurate, sir.

Mr. WAXMAN. The White House data base has nothing to do with

e-mails.

Mr. HEISSNER. That’s correct, sir.

Mr. WAXMAN. The White House data base investigation was an

investigation that Congressman McIntosh conducted, and he wanted to find out whether something was really rotten with the White

House data base because Christmas cards were going out using

that data base, and he made all sorts of accusations. I think he

even accused people of breaking the law. And then after spending

a year or 2 years on that investigation, causing you to spend thousands of hours, many months of your time, all paid for by the taxpayers, there was nothing to show for that investigation, so requests were sent for more information and more information and

more information, and the Congress just kept on fishing around to

see if they could find some scandal. They found none. And you were

alluding to in that, as I understand that particular document, that

when your superior goes to the Appropriations Committee, don’t

raise the issue that we got a lot of requests before and fewer now;

let sleeping dogs lie, maybe they won’t have their attention drawn

to the fact that they ought to be asking for more information. Is

that what we’re talking about?

Mr. HEISSNER. That’s correct, sir.

Mr. WAXMAN. That’s a different issue than what they are talking

about on this committee, which is the Mail2 retrieval system,

which is the archiving of e-mails at the White House; is that correct?

Mr. HEISSNER. That’s correct, sir.

536

Mr. WAXMAN. Now, in your—let me just ask you some bottomline questions. Let us just get this right on the record. There seems

to be an allegation that the White House was trying to cover up

damaging e-mails. At our first hearing the chairman said that the

White House basically had two choices. They could face up to the

problem, tell the Justice Department and Congress what happened,

get it fixed, or they could throw a blanket over the whole problem,

ignore it and hope nobody would find out. And the chairman says

it looks like they chose to cover it up.

Mr. Heissner, did anyone ever ask you to conceal the existence

of the computer glitch that caused the missing e-mail problem?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. Mr. Lyle, did anyone ask you to do that?

Mr. LYLE. No, sir.

Mr. WAXMAN. Did anyone ask you, Mr. Heissner, to conceal the

e-mail problem from Congress?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. Mr. Lyle.

Mr. LYLE. No, sir.

Mr. WAXMAN. It’s pretty ironic to ask you to conceal the problem

from the Congress, because in December 1998, which was 2 months

before your e-mail which they look at now as the smoking gun of

the White House cover-up, it was reported in Insight Magazine

that the Congress of the United States, in fact this committee, had

information that some e-mails were missing. So we already knew

some e-mails had been missing from the White House data base

system. You probably know nothing about that particular publication, but it’s interesting that in the public—a public document, a

newspaper, they were talking about how this committee already

knew that they weren’t getting all the White House e-mails because of some glitch in the system. You are telling us you weren’t

trying to conceal this problem from the Congress.

Mr. HEISSNER. That’s correct.

Mr. WAXMAN. Did anyone ever ask you not to report the e-mail

problems to the Congress?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. Mr. Lyle.

Mr. LYLE. No, sir.

Mr. WAXMAN. Now, Mr. Heissner, let’s go back to that e-mail

which is the topic of this whole hearing today. There’s been some

confusion about this document, and so let’s try to clear up the confusion. You said the document—let’s be sure we’re working off the

same document. There’s a version with Bates stamp E 3865, dash,

3866, and the document indicates that you sent this e-mail to Dorothy Cleal. Who is Ms. Cleal?

Mr. HEISSNER. Mrs. Cleal was the Associate Director of the Information Systems and Technology Division. She was the person to

whom I was reporting directly.

Mr. WAXMAN. Next to the subject heading of the e-mail, it says,

‘‘Issue Papers for Appropriations Hearing.’’ What does that refer

to?

Mr. HEISSNER. That refers to a request for information that was

going to be passed on to Mr. Lindsay for appropriation hearings.

537

Mr. WAXMAN. I understand you were asked to prepare briefing

materials on two issues. What were those two issues?

Mr. HEISSNER. That’s correct. The two issues were Mail2 reconstruction, and the second one was called information requests.

Mr. WAXMAN. The e-mail contains a discussion of both of these

issues. Continuing with the text of the e-mail, it goes on to say,

‘‘Issue: Mail2 Reconstruction (document attached).’’ Below that it

says, ‘‘Issue: Information requests.’’ Are these two issues related to one another at all?

Mr. HEISSNER. No, sir, they are separate.

Mr. BURTON. They are completely separate issues.

After the section dealing with information requests, there’s a divider and then a section labeled, ‘‘Mail2 Reconstruction.’’ Below

that heading there’s a fairly detailed description of the history of

the Mail2 problem and efforts to investigate it and fix it.

Let me ask you, did you want to prevent Congress from finding

out about the Mail2 problem?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. When you wrote, ‘‘Let sleeping dogs lie,’’ were you

referring to the Mail2 problem?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. I think we know what Mail2 reconstruction refers

to, but what does information requests mean?

Mr. HEISSNER. Information requests refers to the issue that was

going to be perhaps discussed, or at least would be considered for

discussion, the issue having to do with the level of effort that was

required to respond to requests for information from different

sources, and in particular the level of effort that had been required

to respond to information requests related to the WhoDB data

base.

Mr. WAXMAN. Did you want to hide information from Congress?

Mr. HEISSNER. No, sir.

Mr. WAXMAN. Looking at the text that follows, what did you

mean when you wrote, ‘‘Let sleeping dogs lie’’?

Mr. HEISSNER. What I meant by that was I don’t think we need

to draw undue attention to the issue of requested information related to the WhoDB data base since the requests are declining. We

provided all that information as requested of us, we spent a considerable level of effort responding to these requests, we ran many

queries. They were done very, very carefully to ensure that the information that was requested was made available, and it had a

negative effect on the operations because it took away considerable

time from a very small staff.

Mr. WAXMAN. Let me just underscore what that means when you

say it took away time from a small staff. It took away resources

that the taxpayers paid to have people work for the government in

all sorts of capacities to just answer a flood of requests of information from the Congress, and this committee is probably guiltier

than any other. This committee just kept on sending requests for

more and more documents, more and more requests, and more and

more people had to work on it. We have spent taxpayers’ dollars

just to fund this committee, I don’t know how many millions, and

then I don’t know how many millions had to be spent just to answer the requests from this committee. And when the committee

538

gets documents and information that doesn’t fit into the accusations of scandal, witnesses like you are treated with the back of

their hand. They act as if you were trying to cover up for Bill and

Hillary Clinton’s misdeeds, and you are not a political appointee.

You are a career civil servant working in a technical area.

I just find it astonishing, I guess is the best word to use, but I

find it even more troublesome than astonishing. I find it unprofessional.

Now, let me ask Mr. Lyle some questions so we can get some of

this on the record. I’m going to ask you about the Mail2 problem.

When did you—you first arrived at the Office of Administration

when?

Mr. LYLE. In November 1998.

Mr. WAXMAN. So you were not at the Office of Administration in

the time period that the Mail2 problem was found and then fixed

prospectively; is that right?

Mr. LYLE. That’s correct.

Mr. WAXMAN. Let me just take a minute so that people who are

watching this hearing or the press, because they are not thinking

about this issue, to go through a timeline. An ARMS system, which

is a retrieval system for e-mails, was set up at taxpayers’ expense

at the White House and at all the executive office buildings so that

a historical record of all the e-mails could be captured; is that

right?

Mr. LYLE. There was an automated records management system

known as ARMS. It was established within the Executive Office of

the President. I can’t tell you what other government agencies have

done.

Mr. WAXMAN. That system, as of June 1998, was discovered to

not be operating in complete compliance with the goals and what

the contractor, which was Northrop Grumman, I think—what they

envisioned. So they discovered in June 1998 that some e-mails, and

I think mainly e-mails that were being sent from the outside in,

were not on this ARMS system. You weren’t there in June 1998?

Mr. LYLE. That’s correct, sir.

Mr. WAXMAN. By November 1998, they fixed the system, and

they fixed it for the future so that every time anybody sent an email either into the White House Executive Office or internally or

from the office out, that was all going to be in the retrieval system.

They found there was a problem, and they corrected it. That was

in November 1998.

In December 1998, in the Insight Magazine—I think it’s a publication of the Washington Times—they reported that this committee, the Congress, knew there was a problem of some of the retroactive e-mails not getting picked up. Did you know about that?

Mr. LYLE. I know of the report. Before I came to Washington, I

had never heard of Insight Magazine, but since I’ve been here, I

am now familiar with it. I don’t know when I learned of the article.

Mr. WAXMAN. When were you first informed about the Mail2

problem?

Mr. LYLE. The Mail2 problem was in April 1999, thereabouts, as

I’ve said. It’s my most vivid recollection of learning about it in the

context of the letter D anomaly.

539

Mr. WAXMAN. Did you have any reason to think there was an ongoing or potential problem with document production to meet the

requests from all the investigators because of the Mail2 issue?

Mr. LYLE. No, sir.

Mr. WAXMAN. When did you learn that the Mail2 issue may have

affected the production of documents by the White House in response to congressional and independent counsel subpoenas? You

did learn that. That was April?

Mr. LYLE. That was in that April meeting that I described earlier

for Congressman Barr.

Mr. WAXMAN. If there was not a perceived problem regarding

document production, why was the Office of Administration concerned about the Mail2 reconstruction?

Mr. LYLE. In April 1999, the Mail2 reconstruction issue had been

dealt with, but you still have archival issues that need to be addressed. Federal Records Act, Presidential Records Act, the Armstrong litigation, all of those precedents control records that need

to be stored for historical purposes, so the focus as far as it related

to the e-Mail2 issue during my tenure has been on the Federal

records compliance issues, the Presidential Records Act and the

things I’ve talked about so that you have a historical record that

can be transferred to the National Archives Records Administration

and also to the Presidential library.

Mr. WAXMAN. When the Office of Administration did see the

Mail2 problem as something that needed to be fixed for these archival reasons related to Presidential records, why did the office not

begin the Mail2 reconstruction project in 1999?

Mr. LYLE. At the time in 1999—and when you’re talking about

in the April 1999 timeframe, in 1999 we were in the midst of one

of the most difficult information systems and technology challenges

facing the Executive Office of the President. It was the Y2K crisis.

It not only confronted the White House, it confronted the rest of

the country and, in fact, the rest of the world. It was an extraordinary undertaking. There were many systems that needed to be

Y2K-compliant to ensure that when the year 2000 came, that the

Presidency would have computer systems that worked.

Mr. WAXMAN. If I could just interrupt you for a second. This Congress has done pretty much nothing on any important issue. We

have a lot of recesses. We have short-week timeframes to do basically nothing because we’re deadlocked, but I want to inform everybody that yesterday the House of Representatives voted unanimously to praise everybody who worked on correcting the Y2K

problem because when the calendar clicked over into this new millennium, all the fears we had about Y2K did not come about, and

we praised all the people that worked on it. So I assume you were

included in that.

Mr. LYLE. I appreciate that, and I know that my staff will appreciate it, too. There was a small number of people in the Information Systems and Technology Division, only 40, 45 people. They

worked very, very hard with our contractors to achieve a success

that was—I would describe as nearly an impossible task and was

only as a result of their hard work and the support that we received that we were ultimately able to succeed.

540

Mr. WAXMAN. So you were trying to decide how much money to

spend on making sure you complied with Y2K or how much you

could divert to deal with the Mail2 problem?

Mr. LYLE. Our No. 1 purpose was ensuring Y2K compliance, and

as I said, this was a huge undertaking. It was drawing every American personnel resource we had available in the IT, information

technology, area. All of our staff was working very, very hard on

that project in one form or another, and it was, as I said, a huge

task that we very proudly achieved.

Mr. WAXMAN. When did your office start to focus on the Mail2

project?

Mr. LYLE. After the Y2K issue was behind us, we started looking

at it in a February—January, February, March timeframe.

Mr. WAXMAN. Of this year?

Mr. LYLE. Of this year, of 2000, remembering that February 29th

was also a Y2K issue in terms of the leap year component. So it’s

in this timeframe that we had a comfort level that we could proceed with some of the projects that we weren’t able to get to while

we were focused on this largest—I would say the largest computer

renovation in the history of the White House, and I would dare say

other places as well.

Mr. WAXMAN. We have briefing papers which demonstrate that

Beth Nolan, who is White House counsel, was told about the

project at a January 2000 briefing about current records management issues, and this was before the press stories about the Mail2

began appearing in mid February. So is it accurate to say that the

Office of Administration started addressing the Mail2 reconstruction issue before those stories first appeared?

Mr. LYLE. That’s correct, sir.

Mr. WAXMAN. Did you attend the briefing for Ms. Nolan?

Mr. LYLE. Yes, I did.

Mr. WAXMAN. And what was the purpose of that briefing?

Mr. LYLE. There was a meeting that was coming with the National Archives and Records Administration [NARA], in preparation for the Presidential transition, and we had gone to White

House counsel to explain to them the information that we knew

relative to the anomalies, and where we were with respect to those.

From a records management point of view, it was for purposes and

in preparation of a meeting with NARA, and we discussed a variety

of issues with respect to the e-Mail2 and the letter D anomalies in

the records management context.

Mr. WAXMAN. After the briefing, what steps did the Office of Administration take to make sure that Mail2 e-mails were reconstructed?

Mr. LYLE. Following that briefing, a number of things took place.

First we looked into costs associated with doing an e-Mail2 reconstruction. We needed to do a marketplace survey and develop cost

assessments so that we could determine what contractors would be

available to do the project, how it would be done. I instructed my

information technology staff to prepare a plan that could be considered by contractors in the bidding process so that we could get

moving on. We needed cost estimates for the project so that we

could seek appropriate funding from our appropriators in connection with that effort, and all of those steps needed to be taken.

541

I received ultimately a cost assessment proposal from my IT, information technology, staff, I believe, around March 14th of this

year, and it’s from that that we began deliberate steps in that area.

Mr. WAXMAN. We are going to hear tomorrow from the White

House counsels themselves, and they are going to tell us about

their role in all of this. But as I recall from Beth Nolan’s testimony

several weeks ago, the system was found to have this problem, that

it wasn’t getting all the outside e-mails on the central system. They

found out about it and they fixed it prospectively. And then a question came up: well, what about the retroactive e-mails that might

have fallen through the cracks? And there were some tests done on

the individual computers of some of the people involved with

Monica Lewinsky, and they found that some of those e-mails that

weren’t on the centralized system were, in fact, on the computer

systems of Miss Currie and others, and those had all been turned

over to the investigators.

So she testified that as far as the White House counsel’s office

knew, everybody was getting the information they requested on emails as well as everything else. And now we are finding out that

might not have been the case, but they believed that to be the case.

Do you have any information on those issues?

Mr. LYLE. I’m sorry, sir, I do not.

Mr. WAXMAN. That wasn’t your area?

Mr. LYLE. Right.

Mr. WAXMAN. We will hear from them tomorrow because that

sort of addresses the other part of this conspiracy that is being

painted before us by this committee’s series of hearings on this single issue. And one of my ongoing concerns about congressional investigations regarding the campaign finance issue, this issue and

many others, is that they cost millions of dollars to the taxpayer

without producing substantial benefits.

For example, I asked the GAO to do a survey in 1998 that underscored the burden that congressional campaign finance investigation, just that investigation, placed on the Federal agencies, and

that has nothing to do with this particular issue. But 21 Federal

agencies reported that in the 18-month period between October 1,

1996 and March 31, 1998, they received 1,156 campaign finance inquiries from Congress, and GAO calculated the cost of responding

to these inquiries cost the taxpayers $8,767,753. That money could

have been used for a lot of important purposes.

You note in your testimony you were involved with responding

to requests related to the investigation of the White House data

base known as the WhoDB; is that what it is called, WhoDB?

Mr. LYLE. That’s correct, sir.

Mr. WAXMAN. That investigation conducted by this committee

spent over 2 years examining whether anyone stole the President’s

holiday card list, and whether disclosing who attended White

House social events constitutes theft of government property. Can

you imagine? We spent all that time trying to figure out if there

was theft of government property, and the investigation involved

depositions of over 35 witnesses, the production of over 43,000

pages of documents.

One witness from the Office of Administration estimated that he

spent about 1,500 hours, the equivalent of over 37 work weeks, beVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00549 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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tween June 1996 and September 1997, responding to WhoDB information requests. WhoDB is a different issue than Mail2, and on

that issue they spent all of this time and money to find that there

was nothing there.

Mr. Heissner, can you estimate how much time you spent responding to requests on the WhoDB investigation? I asked you before and maybe you could tell us if you have done any estimate on

it.

Mr. HEISSNER. Yes, sir. We tracked the number of hours reported

to have been spent on WhoDB, and to the best of my recollection

for the year of—fiscal year 1997, the IS&T staff reported over 3,000

hours during that year, and of those 3,000 hours, somewhat over

1,000 were attributable to the work that I did.

Mr. WAXMAN. I think it is important to have congressional oversight, but I think it is clear this committee frequently goes too far.

Mr. Lyle, Mr. Burton suggested that the White House was trying

to run out the clock by delaying production of the Mail2 reconstructed e-mails until after the election. Is that accurate?

Mr. LYLE. No, sir.

Mr. WAXMAN. Why not?

Mr. LYLE. We are working very hard to reconstruct these e-mails

as quickly as we can. We have a contractor on board. We have an

independent validation and verification contractor that we will be

having on board within days and proceeding as quickly as we can

to reconstruct the e-mails.

Mr. WAXMAN. I just want to close the time I have here by making

the comment, I am as strongly against obstruction of justice as any

Member of the Congress. I don’t look back at the time of President

Nixon and President Bush as the golden age of this country. I don’t

think President Nixon was forced out of office because simply 18

minutes of a tape was missing. He was forced out of office because

he misused the Office of the Presidency to go after American citizens, to obstruct justice in a very genuine way, and the Congress

found that—at least the House found that he was guilty of obstruction of justice and brought impeachment charges against him.

And I can recall personally having been in the Congress over the

years of President Bush how many times we requested information

when we were told that executive privilege would preclude them

from giving us important information. I thought that was often

used inappropriately, but we certainly didn’t go out and do the

kinds of things that are being done now by the Republican-led Congress.

If there is credible information that anyone obstructed justice or

intentionally concealed information, then I want to do everything

and I will do everything that I can to ensure prosecutions are

brought. I don’t care if it is a Republican, I don’t care if it is a

Democrat. If anybody is obstructing justice, they ought to be prosecuted, but I am equally opposed to frivolous charges of obstruction

of justice or unsubstantiated allegations that unfairly damage the

reputations of people of integrity and good character. I resent it. I

think it is unprofessional. I think it is unAmerican when people

misuse their positions of power, whether it is President Nixon or

Members of Congress, to make unsubstantiated allegations, smear

people, accuse them of obstruction of justice, accuse them of crimiVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00550 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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nal wrongdoing, frivolously sending letters to the Justice Department asking for prosecutions and then attacking the Justice Department if they don’t bring prosecutions, even though there was

no evidence of wrongdoing to substantiate any kind of criminal actions.

I think people have power but they need to restrain their use of

that power and act in a sense of fairness and decency. If there is

a criminal act, let’s prosecute. If something has been done inappropriately, let’s criticize it, but I don’t think that these unsubstantiated allegations and smears ought to be tolerated.

I yield back the balance of my time.

Mr. BURTON. I will take my time, but I am going to yield it to

Mr. Hutchinson in just a moment. Let me just say that Mr. Waxman once again has covered the waterfront. The campaign finance

scandal is of great interest to people all across the country. Communist China gave money to the President’s campaign. Money has

been returned from the DNC; Taiwan gave money; Egypt gave

money; South America gave money. We know about the Shiite temple. I mean, you know, he can say that this is just a waste of time,

but the fact of the matter is people know that there was scandal

involved there.

Mr. Waxman said you know this e-mail problem, you know, they

can get this done in 6 months. They have known about it for 2

years. They knew about it in 1998, and they kept it under wraps

from the Congress. Why didn’t they fix it back in 1998 instead of

waiting now and saying it is going to take 6, 8 months, so it carries

out past the election?

Mr. Waxman also flat out misrepresented what the Insight magazine article said. He said the article claimed Congress knew about

the problem. It does not say that, and I will read what the article

says. It says, so why hasn’t the White House complained and informed various panels in star of the discovery. Insiders say there

is a lively debate going on involving a fair amount of legal hair

splitting. We did not know about it and you ought to read the article clearly.

Mr. WAXMAN. May I ask unanimous consent that the full text of

the article be in the record?

Mr. BURTON. No. Mr. Waxman belittled the WhoDB investigation. He didn’t tell everyone that FBI Director Freeh said that he

thought an independent counsel should look at this matter. This

observation was made in a memo that the Justice Department will

not make public. That is the FBI Director. I yield to Mr. Hutchinson.

Mr. HUTCHINSON. I thank the chairman. Trying to take my mind

and sort of analyze where we are and what the relevant issues are

before this committee, first of all, I think it is clear that there were

subpoenas issued by this committee and others for information,

and those subpoenas were not properly honored in the sense that

records were not retrieved for compliance with the subpoena.

Second, another point is that critical information has not been

revealed to Congress because of a computer problem there was not

a total review of documents that were under subpoena.

544

Third, whether the missing e-mails contained pertinent information to investigations being conducted by this Congress and other

investigative bodies.

And of course, the final question is if there was failure to comply,

was it intentional, and that is—we don’t have the answers to all

of these questions, but we do know that these are important questions to ask. They are important issues for this Congress to deal

with because I believe that when subpoenas are issued, they need

to be complied with, and if they cannot be complied with, certainly

the subpoenaing authority needs to be aware of the problem and

the reasons for it.

Now, I was listening to the testimony of Mr. Lyle, and it is putting this back together. Of course, the e-mail problem became

known in May or June 1998, and it became known to the administration during that timeframe. Congress was not advised of the

problem that we could not retrieve and review all of the subpoenaed materials for compliance. Mr. Lyle, you indicated that you

learned of the problem in April 1989; is that correct?

Mr. LYLE. Of the e-Mail2 problem, sir?

Mr. HUTCHINSON. Yes.

Mr. LYLE. Correct, in that timeframe.

Mr. HUTCHINSON. And that you had meetings with Beth Nolan

during that timeframe as well?

Mr. LYLE. No, sir, I’m sorry, I had a meeting with Ms. Nolan in

January of this year.

Mr. HUTCHINSON. January of this year?

Mr. LYLE. Yes, sir.

Mr. HUTCHINSON. Well, you indicated in response to questions of

Mr. Waxman that you were wanting cost estimates as to what it

would take to do the records retrieval.

Mr. LYLE. The records reconstruction of the e-Mail2 and the letter D backup tapes, yes, that was in this year.

Mr. HUTCHINSON. This is in order to reconstruct the records and

to review them for compliance with the subpoena?

Mr. LYLE. Well, it’s for reconstruction of the records. One of the

things that you will be able to do is do an automated records management search, but it will also allow for those documents and

those records to be transmitted to the archives and to the Presidential library.

Mr. HUTCHINSON. As well as reviewing the ARMS system to retrieve any records that would be pertinent to a subpoena?

Mr. LYLE. Yes, that’s what I said.

Mr. HUTCHINSON. Well, we’re saying the same thing.

Mr. LYLE. Yeah. I just wanted to add that there are other components.

Mr. HUTCHINSON. Other purposes. One is for your archival purposes, and the other one is for compliance with the subpoena.

That’s what I’m interested in.

Mr. LYLE. Right. You can put—you can search the automated

records management system to comply with subpoenas or information requests or whatever you, yes.

Mr. HUTCHINSON. We understand each other.

Mr. LYLE. OK. I just want to be clear, sir.

545

Mr. HUTCHINSON. And so that was a purpose of it and that was

important, but the question is, whenever it is known in May or

June, the problem, no one was advised of it in terms of Congress;

and second, you never went to the appropriators in 1999 to ask for

money to assist in hiring a contractor to retrieve these documents

and to get the system corrected; is that correct, Mr. Lyle?

Mr. LYLE. As far as what was conveyed to this committee in May

or June 1998, I can shed no light on that for you. With respect to

the appropriators in 1999, during our fiscal year 2000 appropriations hearing, the e-Mail2 project was one of those projects that I

discussed earlier, that we had to set aside for Y2K as our focus and

our No. 1 priority.

Mr. HUTCHINSON. Let me ask you a question. In 1999, did you

go before the appropriators and ask for money to correct this system and to retrieve the records and hire a contractor for that purpose?

Mr. LYLE. Our purpose was the Y2K crisis.

Mr. HUTCHINSON. I’m asking you a simple question.

Mr. LYLE. Yeah, I’m sorry.

Mr. HUTCHINSON. You can answer it yes or no.

Mr. LYLE. No, the answer is, we did not ask for funds to do the

e-Mail2 reconstruction in the fiscal year 2000 budget submission

during the year 1999, calendar year 1999, in that our, as I said,

our singular purpose was Y2K compliance. In other words, you had

to prioritize. If you have a computer system that doesn’t work, period, your systems will not operate. You can’t serve—you can’t

function.

Mr. HUTCHINSON. Your priority was Y2K compliance.

Mr. LYLE. Yes, sir.

Mr. HUTCHINSON. And so you did not put it as a priority, advising the appropriators that you also have a problem in the retrieval

system, and that would allow you to comply with subpoenas of Congress.

Mr. LYLE. Well, subpoenas of Congress, in 19—in the timeframe

that I was operating under, I’m not aware and I don’t know—and

I believe my staff is not aware of any subpoena compliance issues.

We have no knowledge of whether or not—what communications

took place between White House counsel’s office and this committee

in respect to your subpoenas or any other information requests.

Mr. BURTON. My time has expired. We’ll come back to you in just

a minute. You can pursue that further. Mr. Ford.

Mr. FORD. Mr. Chairman, thank you. I don’t really have many

questions. I really just have a comment. I’m frustrated like all of

us, I would imagine all of us in the Congress that we’re continuing

to sort of pester these people from the White House and Department of Justice. I appreciate you being here this morning and appreciate your responding to some of the questions, as ridiculous as

some may be.

I would hope, Mr. Chairman, that the same zeal that we’re applying to today’s hearing we could apply to some of the more constructive things that people would rather have us doing. I think if

we just sort of take a second to step back and listen to some of the

questions we are actually posing with almost a serious tone in our

voice it’s somewhat embarrassing. I understand tomorrow we’re

546

going to invite folks who no longer work at the White House who

did work at the White House back up to talk about these issues.

I share your belief, Mr. Chairman, that people do care about

campaign finance reform, they do care about allegations of campaign finance abuse, but they also would probably be interested in

us doing something about it as opposed to continuing to investigate, investigate and investigate.

I think it’s important to note that all of the witnesses I think

have answered questions as sufficiently as they can, and regardless

of how we seek to frame them, I don’t believe they’re going to provide different answers because they’re trying to answer truthfully.

So I would hope that we would cooperate with them as well, particularly when we ask questions that require more than a yes or

a no, that we at least allow the witnesses to elaborate.

Last, Mr. Chairman, I would hope that after we complete this,

and I thought that we would probably be finished investigating

after some point, I thought the President said it very well the other

night when he said we only have 7 months left to investigate him

and hopefully we’ll get all the questions. I shouldn’t say ‘‘we.’’ You

guys will get all the questions answered that you want.

Quite frankly, I’m satisfied with the answers that I have heard

by the panelists, and I would hope that you would express to your

colleagues back at the White House and the Department of Justice,

who are working tirelessly on a whole range of issues, that some

of us in the Congress actually believe you’re doing some decent

work, and we look forward to working with you on a whole range

of other issues to try to improve the lives of most Americans, or

even all Americans, even those represented by my Democratic colleagues and Republican colleagues.

I want to apologize on behalf of this committee for the White

House and for the Justice Department and others, and don’t get me

wrong, I think there are legitimate times when I think you should

come here and answer our questions, but I think at some point in

time it’s safe to say we have gone completely overboard. I think

that we have become obsessed and intoxicated with the notion of

investigating. When we can’t think of much to do, we invite a few

Justice Department officials and White House officials to come and

answer questions about fantasies and concoctions and fabrications

that some of us in this committee may have.

So on behalf of the committee, I apologize for some of the questions you’re receiving, and I appreciate your coming before the committee today, and with that I yield time to my friend from Massachusetts, Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Ford. I’m going to try something

here of an explanatory nature and see how I make out. If you can

explain it to me, though not particularly computer proficient,

maybe then everybody can understand it.

Go back over some of the timeframes Mr. Hutchinson was referencing. Apparently, it was November 1998 when the system was

fixed, at least prospectively.

Mr. LYLE. Yes, sir.

Mr. TIERNEY. In 1996 was when the problem actually occurred,

so you have got a 2-year period from 1996 to 1998.

547

Mr. LYLE. It’s my understanding it was 1996 to 1998 with respect to the e-Mail2 issue.

Mr. TIERNEY. In June 1998, the White House counsel discovered

that there had been a problem.

Mr. LYLE. I’m sorry, in June 1998?

Mr. TIERNEY. 1998.

Mr. LYLE. Mr. Lindsay notified White House counsel relative to

the e-Mail2 problem.

Mr. TIERNEY. But also notified them that, in fact, they were

working on the problem, and then in November of that year they

would have determined that it was fixed, or at least White House

counsel would have been told it was resolved.

Mr. LYLE. That’s the information that’s been provided to me.

Mr. TIERNEY. And it’s not uncommon, I would guess, for lawyers

in the White House counsel’s office to talk past the technical people

in terms of who understood what aspect of the situation.

Mr. LYLE. I have a lot of technical people who work for me, and

I’m not the most technical of them, and yes, that happens even to

me.

Mr. TIERNEY. So that around April of the year when the White

House counsel was supposed to be responding to subpoenas, it’s

very likely, or seems very clear that they thought the matter had

been resolved, and that all of the materials that had been requested had, in fact, been submitted.

Mr. LYLE. Based on the information that I know of, I can’t shed

any more light on in terms of what was communicated to White

House counsel’s office by Mr. Lindsay or not.

Mr. TIERNEY. And then after that, once the issue is resolved and

the technical people told them that, in fact, there may have been

some old e-mails incoming that might not have been actually determined; you went on that effort in the case to trying to ascertain

those e-mails and discover them since that time; is that right?

Mr. LYLE. We’re trying to reconstruct them as we speak.

Mr. TIERNEY. I think that’s pretty clear. Thank you.

Mr. BURTON. Does the gentleman yield back the balance of his

time?

Mr. FORD. I do, Mr. Chairman.

Mr. BURTON. The gentleman yields back the balance of his time.

The one thing that needs to be made clear is that the timeframe

that we are very concerned about regarding the campaign finance

investigation was from September 1996 to 1998 when this whole

problem arose. It’s very relevant to that investigation, that particular investigation, and that’s why it’s so important.

Mr. Hutchinson.

Mr. HUTCHINSON. Thank you, Mr. Chairman. And I certainly

want to agree with my colleague from Tennessee, and Mr. Lyle, I

do not want to cut you off. I just think that we were reaching an

agreement.

Mr. LYLE. We were, and again, I’m doing that, I’m sorry, I didn’t

mean to interrupt you. I know we were trying to get to where we

understood each other, and I appreciate that.

Mr. HUTCHINSON. And because of the 5-minute rule, I try to

move fairly quickly, but I certainly want to be fair in the questions

to you. I think what you were testifying to is that what you were

548

concentrating on the Y2K problem, and it was not your responsibility to comply with subpoenas and—— Mr. LYLE. Well—I’m sorry, go ahead and finish your question.

Mr. HUTCHINSON. Well, I mean, if I’m incorrect in that, but I was

trying to give you a way out here. The point I was making is that

again, this was in May or June 1998 when it was first learned

about by the White House, Congress was not advised of it, and no

requests were made for money to help retrieve the records that

were under subpoena. That was almost 2 years ago. We still have

not retrieved the records, and it was during that time that there

were some very important investigations going on in which this

Congress was being pressured to wrap it up, and the White House

said how long are you going to do the investigations when, in fact,

they knew that there were records that were being stored at the

White House that had never been reviewed and turned over to this

Congress, and we were never told of the problem. And so I think

that those are legitimate frustrations. Now do you want to respond

to what I just said, Mr. Lyle?

Mr. LYLE. I can’t tell you in terms of—with respect to subpoenas,

we have a process in place that is used to respond to subpoenas.

The Office of Administration, like any other Executive Office of the

President agency, is responsible to provide information to the

White House counsel’s office so that they are able to respond to

subpoenas that they receive or information requests that they receive. So we do participate in that type of process. So the Office of

Administration in that capacity, and as an information provider,

does participate.

Mr. HUTCHINSON. And the administration did its job by telling

the White House counsel’s office that there was a problem.

Mr. LYLE. Yes. Mr. Lindsay advised me that he had done so.

Mr. HUTCHINSON. And so it was the White House counsel’s responsibility at that point to advise the appropriate congressional

subpoenas, or anyone else who had something under subpoena as

to the problem.

Mr. LYLE. The White House counsel’s office is the point of contact

for the discussions and communications with this committee and

the other inquiring bodies.

Mr. HUTCHINSON. Thank you.

Mr. Heissner, did you ever see any subpoenas? Did that come

within your responsibility to actually know the information that

was under subpoena?

Mr. HEISSNER. To the best of my recollection, the process would

involve receiving an e-mail document that would be sent to the Office of Administration and its staff that would require responding

to subpoenas. I may have seen some physical subpoenas, yes.

Mr. HUTCHINSON. And sometimes you would know where the

subpoena came from and sometimes you would not?

Mr. HEISSNER. That’s correct.

Mr. HUTCHINSON. And many times it would just be a request, we

need these records, they’re under subpoena but you might not even

know who the subpoena came from; is that correct?

Mr. HEISSNER. That’s correct sir.

Mr. HUTCHINSON. And who would customarily send you that email?

549

Mr. HEISSNER. The current process involves the receipt of a

broadcast of an e-mail to all staff by White House counsel, and

then there would be a separate e-mail, a copy of it sent, separate

e-mail be sent out by IS&T management, someone in the front office would send it to all staff, and that person would then collect

the responses to the request for information. This is the current

process. In the past I collected information, but it would be followed back through channels.

Mr. HUTCHINSON. Was that the process that existed back in 1998

and 1999?

Mr. HEISSNER. That was a similar process. It would be followed

to us through White House counsel. We would respond and then

send the information back to the White House counsel, and I might

add, those requests were taken very seriously. We took all diligence

in making sure that the request was understood, to analyze what

the information was that was sought, and then to develop the software to give us the answers.

Mr. HUTCHINSON. It was very serious from your standpoint in

the Office of Administration, you don’t know what happened once

you gave the information to the White House counsel?

Mr. HEISSNER. That’s correct, sir.

Mr. HUTCHINSON. And you did your job, or Mark Lindsay or

someone else in your Department gave the information to the

White House counsel that there was a glitch in the computer system, they’re not able to review it, and you knew that was important information that the White House counsel should know about.

Mr. HEISSNER. That’s correct.

Mr. HUTCHINSON. Now, I want to go to exhibit 81. It’s been referred to previously, and I just need to get a better grasp of this.

This is a document that you created, correct, Mr. Heissner?

Mr. HEISSNER. That’s correct, sir.

Mr. HUTCHINSON. And the first sentence says while I’ll be glad

to write up something to the information request channeled to us

via White House counsel in response to various requests from Congress, etc. Who is this being—who are you responding to?

Mr. HEISSNER. I was responding to Ms. Cleal, who was my supervisor at the time who had made the request by telephone.

Mr. HUTCHINSON. And the request by telephone was work up

how many hours you’re devoting to this, this might be some information we might want to give to Congress?

Mr. HEISSNER. The request was to address the issue of information requests and the impact it would have—that it had on us at

the time and to provide some information that might be suitable

for submission to Mr. Lindsay in his presentations to Congress.

Mr. BURTON. I’m sorry, Mr. Hutchinson, your time is expired.

We’ll come back to you. Who seeks time on your side?

Mr. Davis, do you seek time?

Mr. DAVIS OF ILLINOIS. Yes.

Mr. BURTON. Mr. Kanjorski, do you need time?

Mr. Kanjorski.

Mr. KANJORSKI. There’s an article that appeared in the Washington Times today about certain involvements of e-mail of Mr.

Blumenthal. Who is familiar with that?

Mr. LYLE. I am familiar with that article, sir.

550

Mr. KANJORSKI. Did you read that article?

Mr. LYLE. Yes, I did.

Mr. KANJORSKI. Could you tell us what basically happened there

and what’s the answer to that story if there is an answer.

Mr. LYLE. The information that I have right now on that is that

there was an e-mail that was sent to Mr. Blumenthal from the U.S.

Embassy in England, and the e-mail ended up in what my technical people tell me is a loop, and what that means is that the email was sent over and over and over again, and as a result of that

loop that occurred, a great volume of that same e-mail ended up

being repeated over and over and over again, and it grew into a

large mass, I guess is the best way to describe it, of data.

As a result, Mr. Blumenthal’s computer failed. It could not take

that massive amount of information. So he called over, and our

IS&T people worked with him to correct his system.

And the issue then arose, we have this e-mail that had been sent

over and over and over again, what do we need to do about it, and

the information that I was provided was is that the e-mail substance was in that mass, identical, duplicates of this e-mail were

created. The director of the Office of Administration made a determination in consultation with counsel’s office—Office of General

Counsel and the Office of Administration that the e-mail should be

preserved, and it has been preserved, and the duplicates, the same

e-mail over and over again, that mass of information has been deleted so that it doesn’t jam the system and cause system failures.

That’s what we have—that’s the information I have currently on

that, sir.

Mr. KANJORSKI. That came from the American Embassy in England?

Mr. LYLE. Yes. The U.S. Embassy in England is the source of

that looped e-mail that sent those duplicate e-mails over and over

and over again.

Mr. KANJORSKI. You don’t think that perhaps it was an attempt

by the United Kingdom of a terrorist attack on the White House

computer system?

Mr. LYLE. I don’t believe that the United Kingdom launched a

terrorist attack on the United States in the form of this e-mail.

Mr. KANJORSKI. Don’t you think we ought to have a congressional investigation on that?

Mr. LYLE. No, sir, I do not. It’s one of those things that happens.

Mr. KANJORSKI. I was suspicious because the other night I

watched a program of the President in the Executive Office building riding a bicycle, and there was present another individual on

a bicycle, and I think it may have been the prime minister of England, and I was wondering whether there’s a seizure going on at

that time.

Mr. LYLE. And I have no knowledge on the bicycle episode, sir,

but I can say that I hope that the floor was cleaned after he was

done.

Mr. KANJORSKI. Mr. Chairman, I have no further questions.

Mr. BURTON. There is damage to the hood of my car however.

Who’s next?

Mr. Shays.

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Mr. SHAYS. Good morning, gentlemen. My challenge is when you

don’t have an honest President, you wonder if those who work for

a dishonest President are telling the truth. So I start out with that

basic question. I still want to know who hired Craig Livingstone,

the young man in the White House who had possession of over 800

sensitive FBI files, almost entirely on Republicans, and I want to

know who he allowed to see those files.

Now the interesting thing is Insight Magazine suspected that the

First Lady hired him, but I wouldn’t make that determination

based on what Insight Magazine said. So I’m not even at the level

of trusting, but verifying. I have a lot of suspicions.

And I have little trust that this White House is telling us the

truth, and I realize that you are, for the most part, career people

who work for the White House, but I know other career people who

work for the White House, they worked for the travel office and

they were fired, and then the FBI and the IRS were forced to look

at them and I don’t know why. Then you had this e-mail mess at

the White House, which only heightens my suspicion. So have a little patience with me, and I hope Mr. Waxman will as well.

I know 120 people have basically taken the fifth or fled the country. 79 people have taken the fifth amendment. They don’t want to

answer questions. So there hasn’t been much cooperation.

Now, what I do know is that 2 years ago, in May 1998, it was

discovered that we had a missing e-mails problem, and I do know

in 1998 on the 18th, we had a test, and I do know almost 2 years

ago on June 19th, the White House counsel, Mr. Ruff was told of

the problem by Mr. Lindsay. Now, from June 19 to November 20th,

the problem wasn’t solved. So we still had a continuation of the

problem, and I do know this, that no one from the White House

told this committee.

Now we have Mr. Ruff telling us in 19 that we had all relevant

information, and that we had a complete document of e-mails. So

he was on file before this committee telling us we had the documents, and then he knew on June 19th, and I realize that’s not

both of you, but I just want you to have a sense of the challenge

we have.

Now there was the Insight Magazine in November 1998, but Insight has made accusations, pretty incredible accusations about the

President that none of us would want to believe. Then we knew in

the 20th of this year from the Washington Times, it got to be a little credible, then Northrop Grumman, on March 23rd came and

testified, and then, in my judgment, the White House came clean.

Now what happened during that time? We have 246,000 e-mails

that we don’t know about, that weren’t transmitted. Now some of

them may not be relevant, but there are 246,000, and they’re interesting people. They’re Betty Currie, they’re Ira Magaziner, they’re

Phil Kaplan. Now why would I be interested in what Phil Kaplan

has to say? He’s the gentleman whose office—he’s the special assistant to President and deputy staff secretary, Office of the Staff

Secretary. His job is the conduit into which all messages to the

President come, and this is one e-mail that we happen to discover

because it didn’t disappear in these 246,000 e-mails that we can’t

find, that you can’t find, and this is a memo informing the President that because of a failure to comply with the law they’re going

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to be fined $1 million potentially in fines, campaign fines. This was

from Harold Dickeys, but it’s under Phil Kaplan. Now, Phil Kaplan

has 944 potential e-mails.

I want to know how many other potential e-mails like this we

haven’t found, and then you have memos from Mr. Lindsay, 17.

You have Ira Magaziner, 3,693. You have Bill Clinton, too. You

have Betty Currie as well. So the problem is we need to know the

truth, and what I’m hearing is that you all told the White House

counsel everything you know. The question I have is were you surprised that the White House counsel, given what you knew, didn’t

notify us of the problem? I’ll ask you, Mr. Heissner.

Mr. HEISSNER. I guess I would not be privy to the communications between White House counsel and this committee.

Mr. SHAYS. Is it your testimony that we knew about this problem?

Mr. HEISSNER. I have no knowledge—— Mr. SHAYS. I want you to be real careful with this one OK. I

want you to be careful with my question. The question is, did you

have any understanding that maybe this information had not been

made public and forwarded to the committee? Was this something

that the public knew about or did you know about?

Mr. HEISSNER. If the question is did I have any knowledge of the

communications between the White House counsel and to this committee of information that we provided.

Mr. SHAYS. And the answer is no, correct?

Mr. HEISSNER. The answer is I have no knowledge of the information that was forwarded or—— Mr. SHAYS. Let me ask my final question then, sir. You’re aware

that this was called project X, and you’re aware that you didn’t like

that term. It is your knowledge, isn’t it, that you knew that the

public didn’t know about this?

Mr. HEISSNER. I can’t say that, sir. I don’t know that for certain.

Mr. SHAYS. So you never suspected—you thought—you never

suspected that this was information just kept within the White

House and it wasn’t made public, you’re going to be on record as

saying—giving your response about the project X, you want to be

on record as suggesting that you don’t know whether or not the

public and the press were aware of this issue?

Mr. HEISSNER. I would have to speculate, sir.

Mr. SHAYS. And what is your speculation?

Mr. HEISSNER. My speculation with respect to what you term

project X, it’s difficult, sir. It’s difficult to say whether that information was made public or not.

Mr. SHAYS. Did you think it was made public?

Mr. HEISSNER. It’s possible that it was made public, yes.

Mr. SHAYS. Did you think it was made public?

Mr. HEISSNER. I don’t know, sir.

Mr. SHAYS. You don’t know what you thought?

Mr. HEISSNER. Well, if it were my speculation I would suspect

that it would become public perhaps through—indirectly through

communications between individuals and the press. I really don’t

know.

Mr. SHAYS. Don’t you think that a reasonable person like you

would have come to the conclusion that if there were 246,000 poVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00560 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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tential e-mails that hadn’t been forwarded to the committee, and

there was no public discussion of it, that the public probably didn’t

know about it?

Mr. HEISSNER. It was my responsibility to pass information

through channels. After it left that sphere, I did not followup on

what actually was made public or not. It was not something that

I was—— Mr. SHAYS. I’m sorry, I’ll be done with this question then. Did

you object to this being referred to as project X?

Mr. HEISSNER. Yes, I did, because it gave a sinister connotation

to what I considered was a mechanical, technical failure, and it deserved to be named properly as an ARMS—— Mr. SHAYS. You understand why I would be cynical when I saw

that memo.

Mr. BURTON. Sorry, the gentleman’s time has expired. Mr. Davis,

I think we have time for you and then we’ll head for the vote.

Mr. DAVIS OF ILLINOIS. Thank you, Mr. Chairman. I’ll be quick.

Mr. Heissner, would you say that your basic responsibilities are

technical in nature or analytical or policy analysis?

Mr. HEISSNER. That’s correct. I think I view our responsibilities

as being technicians that provide the information systems technology to deliver that technology to policymakers and administrators.

Mr. DAVIS OF ILLINOIS. So the analysis of public opinion, public

awareness, of public scrutiny, public involvement, that’s not a part

of what you’re expected to do?

Mr. HEISSNER. That’s correct, sir.

Mr. DAVIS OF ILLINOIS. Mr. Lyle, let me just ask, are you satisfied that you have complied with the basic responsibilities of your

office relative to compliance, given the technical problems that

have existed, or the technical difficulties of generating the information?

Mr. LYLE. Yes, sir.

Mr. DAVIS OF ILLINOIS. Do you feel that you have been involved

in any way in any stonewalling, delaying, circumventing, denying,

unwillingness to come forth with information that you could provide?

Mr. LYLE. No, sir. In fact, just the opposite. I believe I have been

cooperative, as well as my staff.

Mr. DAVIS OF ILLINOIS. Thank you very much. I have no other

questions, Mr. Chairman.

Mr. BURTON. We have a series of votes on the floor. We will

stand in recess. I’ll ask you gentlemen to stick around. We’re sorry

we have to hold you for a little while. We have a few more questions. We stand in recess until fall of the gavel.

[Recess.]

Mr. BURTON. While we’re waiting for Mr. Barr, we’ll go ahead

and yield to counsel who had some questions regarding the appropriations process and the appearance of the White House before

that committee.

Mr. WILSON. Mr. Heissner, good afternoon. Mr. Lyle, good afternoon.

I just wanted to try and establish one thing, Mr. Heissner. From

our perspective, you were in charge or one of the people in charge

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of fixing the e-mail problem. It was a problem discovered in June

1998. The e-mail we were talking about earlier you wrote in February 1999. That’s over half a year after the problem was discovered. From our perspective, you were supposed to be one of the

problem solvers. Now, if you didn’t have the people or the money

to fix the problem, from our perspective it seems you had to know

that there wasn’t going to be any progress, that the problem wasn’t

going to get solved. One of the questions we really want to have

answered is, what did you do to fix the problem?

Mr. HEISSNER. I became involved in the resolution of the problem

very late in 1998. The environment in which it worked, there was

a great deal of ambiguity about roles and responsibilities. The recovery of Mail2 server had not been given to me until then, and

then there was a meeting with Mr. Barry and somebody else that

we mutually agreed that this is a responsibility that would fall

within the systems integration development branch. So this was

maybe December 1998. At that point Mr. Barry was taking the responsibility for reviewing the processes that were going on to make

sure what he called the bleeding stopped.

Mr. WILSON. I don’t have a lot of time. What I’m looking for are

the affirmative steps you actually took to solve the problem. Did

you ask for money? Did you ask for more people? Did you complain

to your management that things weren’t going forward? What affirmatively did you do to make this problem go away?

Mr. HEISSNER. I reported to our management the need for remediation. I was aware of that. In fact, the documentation you have

shows that I provided the new director of OA, of IS&T with details

as to the situation involved. I made some recommendations about

remediation.

The process had to go through proper channels, would go through

a COTR, Contracting Office’s Representative, to Northrop Grumman whose staff was performing the day-to-day operations and

were also looking at a way of correcting the current problem.

Mr. WILSON. We’ve seen the documentation. I’m very sympathetic to the career people that were involved in the process because it appears they were very frustrated. Mr. Barry appeared to

be frustrated. You appeared to be frustrated from looking at the

documents. But what we’re trying to find is, is there a tangible expression of somebody moving forward before February 2000? And

that’s what we’re trying to find here.

We know all the explanations, but we haven’t seen a request for

money. We haven’t seen a request for people. We’re hoping you can

help us out of that dilemma. Did you ever ask for money?

Mr. HEISSNER. It was implicit that we would need funding to perform that work because there was no funding under the current

contract with Northrop Grumman to perform that work.

Mr. WILSON. Let me stop you there for a minute. Mr. Lyle came

in for an interview last week, and he told us money was not an

issue. Money was not needed. That was not the problem. You are

sitting here today telling us it was implicit that money was needed

to move forward, which makes perfect sense to us. It seems that

if you had a problem to fix and you didn’t have the money and the

people, you had to get it. And so our issue here is you just told us

that you needed to get money. Is that correct?

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Mr. HEISSNER. The issue was that we needed to receive funding

to proceed with the Mail2 server remediation task.

Mr. WILSON. The simple question I guess is, if you needed to receive money to proceed, did you ever ask for it?

Mr. HEISSNER. It was implicit in the request—in the statement

of work we received from Northrop Grumman, which indicated that

the cost to develop a system to correct the—to restore—to retrieve

and restore the data would be on the order of $600,000 and that

went through proper channels to my management at which point

I was awaiting authorization to proceed.

Mr. WILSON. But I understand it was implicit, and what Northrop Grumman has given to you—in fact, we’ve seen letters saying

they weren’t going to proceed or do anything unless they got formal

authorization. We understand what Northrop Grumman did. What

I’m looking for is somebody on the other side, on the White House

side saying you are to move forward and at the same time asking

for money to enable them to move forward. Because if they weren’t

going to be funded, it’s clear to us from the documents received

that they were not going to move forward. So I have not seen—did

you have a document where you signed something that said I

would like congressional funding to move forward?

Mr. HEISSNER. Not to my recollection is there a document that

requests the funding, but there are documents that indicate that

IS&T was waiting for obtaining approval to proceed associated with

funding being made available to us.

Mr. WILSON. Who was supposed to be—who were you waiting

for?

Mr. HEISSNER. The issue went through proper channels. It would

go to the director of IS&T and from there would go to the director

of OA and perhaps general counsel to be addressed.

Mr. WILSON. Those are the channels. You were waiting for directions from your superior?

Mr. HEISSNER. That’s correct. I was waiting for direction to proceed along with the funding that’s required to do that.

Mr. BURTON. Let me interrupt. You knew about the subpoenas,

though, because you said earlier in your testimony that you were

aware of subpoenas and you had seen some of the subpoenas. So

you knew about the subpoenas and you knew nothing was being

done and you didn’t make a request for money to get the problem

solved so that the subpoenas could be satisfied from the independent counsels and the Congress?

Mr. HEISSNER. I have a document here. It has a Bates Stamp

Number E 3877. It would be your No. 92, exhibit No. 92, if I might

draw your attention to that; and it might help understand, perhaps, or explain.

As you see, this is a document which describes the current state

of the Mail2 reconstruction; and at the very bottom it says, ‘‘Current status: Awaiting funding and management decision to proceed.’’ And that’s where I stood. I was waiting for that to happen.

I might have had informal conversations. I don’t recall having any

formal documentation that would show that I would keep on asking

how soon they may receive this.

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Mr. WILSON. To make sure we’re fair to you, it’s fair you were

waiting for directions from your superiors on how to proceed; is

that correct?

Mr. HEISSNER. That’s correct, sir.

Mr. WILSON. Did you ever get directions from your superiors to

move forward?

Mr. HEISSNER. No, sir.

Mr. WILSON. At any time before the year 2000 did any manager

of yours ever come and say you must do something to get this

fixed?

Mr. HEISSNER. No, sir.

Mr. WILSON. Now, Mark Lindsay, who testified before us, is

going to come before us tomorrow again. He told us under oath a

few weeks ago, quote, my first instruction and my first belief was

to do whatever was necessary to fix the computer problem. Now,

did Mark Lindsay ever come to you and say this is what we’re

going to do to fix the computer problem?

Mr. HEISSNER. No.

Mr. WILSON. You’re the person that is managing this problem.

Did he ever come you to and ask for work product to—a comprehensive plan as to how you were going to move forward?

Mr. HEISSNER. This was one of many tasks that we were involved in, and it was kept open until direction to proceed and funding would be made available. That’s the status and how we operated then.

Mr. WILSON. The question was, did he ever ask you to do anything?

Mr. HEISSNER. No.

Mr. WILSON. He told us a couple of weeks ago, my No. 1 objective

was to make sure this problem was resolved; and again you have

just told us he didn’t actually ask you to do anything. How does

your inaction square with what Mr. Lindsay told us?

Mr. HEISSNER. Well, Mr. Lindsay and I would not be speaking

on a regular basis on business like this. Communications would go

through channels. It would go through Mr. Lindsay, to the director

of IS&T, and from there would be followed down to me. So this is

not—would not be a topic of discussion that we would be engaged

in nor is it something that—I would not see Mr. Lindsay all that

often. It would be usually just in the hallway. It would not be conversation dealing with these issues.

Mr. WILSON. I can understand that. But from our perspective,

we’re trying to decide if this was a priority for Mr. Lindsay as he

told us. It seems fair for us to assume that at some point over the

course of nearly 2 years he would seek out the person who is in

charge of the problem and he would say to that person, you must

do this. And you’ve just told us that you did not receive directions

from your superiors to actually move forward with that project; is

that correct?

Mr. HEISSNER. That’s correct, sir.

Mr. BURTON. We’ll come back to the counsel in a minute. He has

about 20 minutes left on his time.

Mr. Barr.

Mr. BARR. Mr. Heissner, going back, please, to exhibit 81, which

was the subject of some earlier discussions, the February 5, 1999

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e-mail. Turning your attention—as we had discussed earlier, one

paragraph above the let sleeping dogs lie comment is the break in

the text. The text says, we may not want to call undue attention

to the issue by bringing the issue to the attention of the Congress

because—and then it just stops and then picks up a subsequent

paragraph later on. Why is there material missing there?

Mr. HEISSNER. The assumption that there is some material missing is not correct. The original presentation of this paragraph, as

I’m looking at this, it looks like it’s just one sentence. It starts with ‘‘while’’ and ends with a period after declining. So there’s a clause

while.

Mr. BARR. And ends where?

Mr. HEISSNER. At the bottom of the—just above the let sleeping

dogs lie.

Mr. BARR. No, I don’t think that’s a reasonable assumption. The

last three lines begin last year’s with a capital L. That’s a new sentence.

Mr. HEISSNER. No, sir, that’s not the way I communicate. In the

original, there is a bullet there, and it’s my practice to capitalize

the first word following a bullet. The bullet does not show this. You

can see because, and then it has the first line. There’s a

comma—— Mr. BARR. When you say a bullet, you mean what’s found at the

bottom of the page?

Mr. HEISSNER. Yes. The bullet that’s at the top would be—would

have been a graphic. That was inserted when I typed in the text,

and it would be a circle that’s fully filled. It’s a graphic which does

not reproduce, apparently, in the records that are restored. The

bottom part came from a document where I actually entered the

bullets by using lower case Os and there they show.

As I see—issue information requests, to me that’s one sentence.

I could have said, one, two, three; and if I had said that, it would

have saved us all a lot of speculating and questions. The intention

was because one, two, and three; and you can see the punctuation

there. It’s a comma at the end of the first sentence, a comma——

Mr. BARR. The bottom half of the page below the double dash

line, who typed that?

Mr. HEISSNER. I did that, sir.

Mr. BARR. You are a very precise typist.

Mr. HEISSNER. Thank you.

Mr. BARR. You use proper grammar. You start sentences with a

capital letter. You end them with a period. You have a paragraph

break where there ought to be a paragraph break. So what you’re

telling me basically is to believe that you used two entirely different writing styles. The writing style at the top where you have

the word ‘‘because’’ unlike every place else you don’t have a colon

there before you list bullet items, and unlike every place else in the

document where you begin each bullet item with a capital letter

and end each one with a final punctuation, a period for example,

you don’t do that here. And you’re saying that’s simply because

some of the graphics didn’t get picked up?

Mr. HEISSNER. That’s correct. In the first case, I used what’s

called an unordered list which had three clauses. This is one sentence with several clauses. The second part there is a list of items,

558

and I use a colon. And then you see the items that are listed are

full sentences. They stand by themselves.

The first information requests part is essentially one sentence,

and it’s just like saying because one, two, three or A, B, or C or

item, item, item, period.

Mr. BARR. I hear what you’re saying, and I suppose that’s one

explanation. So what you’re saying is you have this break in the

first paragraph not because there’s any information that’s not there

but because there was something different about this first paragraph that had graphics that weren’t picked up as they were in the

bottom?

Mr. HEISSNER. That’s correct, sir. In the first paragraph, the

method of entry was different from the method of entry in the second paragraph. When you use—when I use the Lotus notes e-mail

software and I provide lists of items, I can go and highlight those

three sentences and specify I would like to have a bulleted list. And

the software inserts graphics that cannot be normally—that were

not retained in the records management software.

Mr. BURTON. Let me interrupt. The gentleman’s time has expired. I’m going to yield him my time, but I just want to ask Mr.

Heissner a question that’s consistent with what you’re asking.

Have you conducted a manual search of your e-mails in response

to the committee’s subpoena? And did you find a copy of your ‘‘let

sleeping dogs lie’’ e-mail? And if you did this manual search, did

you find the bullet points and why don’t we have them?

Mr. HEISSNER. I performed a search. I printed off the documents,

and I submitted those documents through proper channels as the

process calls for.

Mr. BURTON. Through proper channels?

Mr. HEISSNER. It would be through Christa Moyle in OA, and

IS&T collects the documents.

Mr. BURTON. So the bullet points were on there then?

Mr. HEISSNER. That’s correct.

Mr. BURTON. You submitted them through the White House,

through proper channels?

Mr. HEISSNER. Submitted them through problem channels.

Mr. BURTON. So why don’t we have them?

Mr. HEISSNER. I have no knowledge.

Mr. BURTON. So the proper channels—someplace along the way

there was a block as far as those bullet points are concerned because we don’t have them.

Mr. HEISSNER. All I can think is that the—there were two copies

of the same document, and this copy came out of records management of the ARMS system. It was this copy that was submitted

rather than the paper copy I provided. The paper copy I provided,

sir, looks exactly like this, except it has those graphics.

Mr. BURTON. I understand, but the point is you ran those

through proper channels so they would come to the committee and

we never got them and you don’t have an explanation why. I’m not

saying it’s your fault, but somebody along the chain of command

evidently felt like they shouldn’t be given to the Congress for some

559

reason. We’ll try to find that out tomorrow.

Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Lyle, turn if you would, please, to exhibit 6.

[Exhibit 6 follows:]

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561

562

563

564

565

566

567

Mr. LYLE. I’m sorry, Mr. Barr?

Mr. BARR. Turn if you would, please, to exhibit 6. It’s my understanding that exhibit 6 is a set of briefing papers that you circulated at a meeting in January of this year with Beth Nolan,

counsel of the President; is that correct?

Mr. LYLE. I believe this was circulated—if you look at the top,

it was provided by—on January 13th by Kate Anderson to Beth

Nolan.

Mr. BARR. This was a paper that was circulated at that meeting?

Mr. LYLE. Yes. It was used at this meeting, yes, sir.

Mr. BARR. Did Ms. Nolan at that time ask how these problems,

that is, the Mail2 and letter D problems, affected subpoena compliance or compliance with subpoenas?

Mr. LYLE. In the course of the discussions of these anomalies,

Ms. Nolan asked something along the lines—I’m paraphrasing

when I say this—but something along the lines how would this affect a prior search relative to a subpoena? Something in that—as

I recall it—in that area.

Mr. BARR. What was your response to her inquiry?

Mr. LYLE. I said that the issue was—relative to the subpoena,

the question that she was asking had been dealt with prior by Mr.

Lindsay and Mr. Ruff and that I didn’t know the extent of what

those discussions were because I wasn’t there or privy to them.

Mr. BARR. Was that the end of that discussion?

Mr. LYLE. No. Relative to the question about subpoena or about

the briefing?

Mr. BARR. Subpoenas.

Mr. LYLE. I believe that we offered to check with Mr. Lindsay.

I believe that was something that Kate Anderson had said to check

with him on did he in fact have that discussion with Mr. Ruff.

Mr. BARR. What followup did you undertake?

Mr. LYLE. After the meeting, Kate Anderson and I went to meet

with Mr. Lindsay.

Mr. BARR. Who did?

Mr. LYLE. Kate Anderson and myself, Catherine Anderson, went

and met with Mr. Lindsay and confirmed that he, in fact, handled

that with Mr. Ruff prior.

Mr. BARR. What you mean by that is Mr. Lindsay, I presume— I don’t want to put words in your mouth—assured you that the

matter had been handled?

Mr. LYLE. Yes, that he had had discussions with Mr. Ruff relative to the anomaly.

Mr. BARR. Do you know anything further about those discussions

between Mr. Lindsay and Mr. Ruff?

Mr. LYLE. No, sir, I do not.

Mr. BARR. Did he relate any details of it to you?

Mr. LYLE. No.

Mr. BARR. You left satisfied that it had been taken care of?

Mr. LYLE. Yes.

Mr. BARR. One of the problems I see here, Mr. Chairman—and

these two lines of questioning are related—you can have a subpoena, Mr. Chairman, and as counsel knows, certainly, come in

asking comprehensively for all documents and records and exhibits

and so forth; and what we’re seeing here is if you pull different—

568

the same information out in different formats, you get somewhat

different information. Now, it can be explained in a way so that

maybe it has the same stuff, but, of course, as the chairman knows

and as the counsel knows, there can be very important subtle differences simply by the way information is formatted, the way it is

punctuated, the way it is broken, the way it is highlighted and so

forth.

This also goes to, I think, your concern expressed earlier, Mr.

Chairman, that if a subpoena comes in and only partial information is returned, that can create a problem.

Whether or not that’s obstruction certainly is something that the

authorities would want to look into. Even Mr. Waxman indicated

that certainly if there has been obstruction, he would want to look

into it.

These are the sort of nagging questions that I think are very relative to this committee, to you, Mr. Chairman, probably to the

independent counsel as well and certainly would have been relevant to us in our impeachment inquiry asking for full, accurate,

complete information. If we were getting, as now is obvious, at best

only one version of information and there are other versions still

out there, that raises some very, very substantial questions in my

mind as a former prosecutor and as a member of this and the Judiciary Committee which I think are shared by the chairman and the

counsel.

Mr. BURTON. The gentleman yields back the balance of his time?

Mr. BARR. Yes, Mr. Chairman.

Mr. BURTON. Mr. Waxman does not have any questions. Counsel

has 20 minutes on his time, and Mr. Shays said he would like the

counsel to continue questioning for a while. Counsel.

Mr. WILSON. I’m going to go into a new, slightly different area

of questioning; and let me tell you what it is before we go there

so you understand.

We discussed your memorandum earlier, the sleeping dog or the

e-mail, the sleeping dogs lie e-mail; and you explained this pertained to information requests. Well, there are other documents we

have, and I’m going to ask both Mr. Lyle and Mr. Heissner about

them, where it seems that there were indications about this problem—the problem being the e-mail problem—and the information

was taken out of documents—and from our perspective—and I

want you to help me work through this—it seems that when information is taken out of a document, whether it’s a briefing material

or some type of memorandum for a superior, then that makes it

difficult to move forward with a solution to the problem.

Now, Mr. Lyle, if you would please take a look at exhibit 84 in

the book in front of you. It’s an e-mail from yourself to Joseph

Kouba. My understanding, Mr. Kouba is a budget person at the Office of Administration.

Now, in this e-mail you say—it’s very short, very succinct—Joe,

please correct the budget materials re OA by removing the bullet

point relating to Mail2 reconstruction. You came in for an interview last week, and you explained to us why you sent this e-mail,

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and your explanation was you wanted the bullet point removed because it was incorrect. I don’t want to spend a lot of time on this,

but I want to ask you, instead of removing the bullet point, why

didn’t you correct the bullet point? Why didn’t you make the information accurate?

[Exhibit 84 follows:]

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Mr. LYLE. Let me explain to you, give you a context so that you

understand what this was.

This is a series of e-mails that occurred in connection with an internal presentation that the Budget Financial Management Division was preparing for the assistant to the President for Management and Administration. On a periodic basis Financial Management Division professionals would brief the assistant to the President for Management and Administration with respect to the Executive Office of the President accounts, each appropriation that exists within them, the burn rate in terms of the funds that are

available, what the expenditures are.

With respect to the Office of Administration’s appropriation, an

e-mail was sent around by Mr. Kouba, who is one of our budget

folks in the Financial Management Division, very hard-working individual, and he had included in there a discussion, a possible bullet point for the assistant to the President that said—it was relative to the Armstrong Resolution Account. That Armstrong Resolution Account is the funding source that is used with respect to

the Automated Records Management System.

Mr. WILSON. Let me just get to my question. I don’t have an

awful lot of time.

The question is that somebody wanted to communicate something about the e-mail problem. Mr. Kouba did, and Mr. Kouba is

not here. We’ll talk to him at a later date. He wanted to communicate something. You thought what he was communicating was

wrong, but nevertheless he wanted to communicate something

about the e-mail problem. And your response—rather than saying,

why don’t you correct your bullet point because it’s wrong, your response was, why don’t you delete the bullet point. So it seems like

you had opted to delete instead of disclose the information.

I want to move on to another document.

Mr. LYLE. The reason I instructed that is because it was flat-out

wrong. And there was no—in other words, I didn’t want to leave

anything in—a briefing to the assistant of the President for Management and Administration that came out of my office or folks

from my office that had incorrect information. The best way to

eliminate any confusion about it is to say it’s wrong—and correct

it. Simple as that. That’s why I did it. That’s how you correct this

information. That’s how I corrected it. Made perfect sense to do so

because it was wrong.

Mr. WILSON. I understand. I understand your concern, but our

concern is that there’s a document here that talked about the email problem. You had an opportunity to communicate something,

and you chose to do what you did. I understand why you did what

you did.

Mr. LYLE. Mr. Wilson, that information was an internal document between my office—my agency at the time. I was the general

counsel. But my agency and the assistant to the President, Virginia

Apuzzo—and it was in the context of a briefing for that budget

preparation. She was aware of the e-Mail2 anomaly, as you know.

So what we were correcting was incorrect information because it

stated a conclusion that was flat-out incorrect.

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Mr. WILSON. Is it fair to say the ultimate document had no reference to the Mail2 problem in it at all? The ultimate document

that was prepared had no reference to the Mail2 problem at all?

Mr. LYLE. Correctly so. That it should not have any—there

should be no indication in the Armstrong Resolution Account relative to e-Mail2, which, by the way, is a conclusion that our appropriators have acknowledged and agree with in a correspondence

that we just received to them in connection with our request to use

funds to do an e-Mail2 reconstruction out of the Armstrong Resolution Account.

Mr. BURTON. Let me interrupt, because I’m not sure I understand this. When the White House went to the appropriators to ask

for funding, they did not ask for any money to correct the e-mail

problem; is that correct?

Mr. LYLE. No, sir. On March 20, we requested——

Mr. BURTON. March 20 of when?

Mr. LYLE. March 20, 2000.

Mr. BURTON. I’m talking prior to that.

Mr. LYLE. Prior to March 20, 2000, I’m not aware of any.

Mr. BURTON. We’re talking about the problem occurring back in

September 1996, and it was discovered in 1998. Did anybody ask

for any money to correct the e-mail problem or to go through and

reconstruct everything and bring it up to date? Not starting there

and going forward but going back to 1996 and getting all the information that was relevant to all these investigations, getting to the

Congress, did anybody ask for money for that?

Mr. LYLE. There were two components to the e-mail, two anomalies. There was the first component which you have been talking

about which was the——

Mr. BURTON. I just need a yes or no answer. In 1998 or thereabouts, did they ask for the money to reconstruct all the e-mails

instead of starting there and going forward? Did they ask for the

money to go back and correct several hundred thousand e-mails

that were missing?

Mr. LYLE. The portion of the problem that was corrected in November 1998, did not require additional funds. That was stopped.

In other words, the Armstrong failure to capture——

Mr. BURTON. So they did not ask for any money to go back and

to get those e-mails that had been missed since September 1996?

Mr. LYLE. You’re talking about the reconstruction from the backup tapes?

Mr. BURTON. Yes.

Mr. LYLE. The first request that I’m aware of was by Mr. Lindsay in March 20, 2000, where he asked——

Mr. BURTON. That answers my question. They did not ask for

money to reconstruct that prior to the year 2000?

Mr. LYLE. That’s correct.

Mr. BURTON. Thank you.

Mr. WILSON. Mr. Heissner, I wanted to ask you about a different

document. Again, I just don’t want to come out of the blue on this

issue. I’ll explain to you what my thinking is, and hopefully you

can help us—you can educate us here. Let me explain the issue

first, and then you’ll have an opportunity to review it.

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From our perspective, there seems to be a simple proposition. Either the White House had the money and the personnel to fix the

problem and it simply decided to ignore the problem or the White

House didn’t have the money or didn’t have the personnel and it

chose not to take steps necessary to get help.

Now, a couple of weeks ago one of your former colleagues Paulette Cichon was asked, if the Office of Administration didn’t have

the money and it didn’t have the personnel, how can it fix the email problem; and her answer was very, very constructive. She

said, we couldn’t do it. Now, that’s easy for us to understand. If

they didn’t have the money and they didn’t have the people, they

couldn’t fix the problem. It seems to us—and I’ll get to this document in a moment—if you needed help to solve the problem and

if you didn’t ask for help to solve the problem, the only possible explanations are that you didn’t want to solve the problem.

Now, if you would please take a look at exhibit No. 94 in the

book in front of you. Now, here we have what appears to be a forwarded e-mail from you to another Office of Administration employee named Christa Moyle. It’s dated February 24, 1999. So it’s

fairly close to the beginning of 1999, again about 6 months after

the problem was first identified.

The subject line of the e-mail is draft hearing preparation paper.

When you read this e-mail, it appears to us that someone was trying to inform Congress of the e-mail problem. Now, in this e-mail

you have two versions of a bullet point about the Mail2 problem.

One is labeled current version; and the other is labeled, quote,

more nearly accurate version. So the initial question here is, did

you draft the more nearly accurate version, the Mail2 bullet point

in this document?

[Exhibit 94 follows:]

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Mr. HEISSNER. Yes, sir, I did.

Mr. WILSON. That was something you prepared?

Mr. HEISSNER. Correct.

Mr. WILSON. I’d like to go over to exhibit 134, if I can, please.

It’s a multiple page document. It appears to be a draft hearing

preparation paper. It says draft at the top.

The date is February 24, 1999. So, again, early 1994, but it’s

dated the same day that you drafted the more nearly accurate version message in the e-mail we looked at a moment ago.

What I’d really like you to do, if you would, please, is look at the

very bottom of page 4 and the top of page 5. Now, there’s a bullet

point in this draft document. It’s a hearing preparation paper, and

it’s got an underlined heading. It says, Mail2 reconstruction; and

the interesting point from our perspective is that it’s crossed out.

There’s a wavy line that goes through the entire bullet point. Now,

apparently, it was crossed out by Catherine Anderson, who is a

lawyer in the Office of Administration.

Now, I guess the first thing I want to ask you is, is this the language that you drafted in the e-mail where you wrote ‘‘More Nearly

Accurate Version?’’ [Exhibit 134 follows:]

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Mr. HEISSNER. It seems to be the contents or paraphrased, perhaps slightly modified version of the information I provided in the

more nearly accurate version of the February 24 e-mail.

Mr. WILSON. We appreciate the fact that you provided accurate

information in a paper that was for draft hearing purposes. What

we see is something that’s crossed out. Do you know whether this

section was removed because someone did not want Congress to

know about the e-mail problem?

Mr. HEISSNER. I don’t know anything about this. This is the first

time I’ve seen this document, sir.

Mr. WILSON. It’s fair to characterize you wrote something that

you thought was accurate, it was put in a briefing paper document—and I’m not saying you have to have contemporaneous

knowledge of this, but you’re looking at something now that’s removed, and you have no further knowledge about it than that; is

that correct?

Mr. HEISSNER. That’s correct, sir.

Mr. BURTON. Who is this draft memo to?

Mr. ZWERLING. Can you identify it by a number?

Mr. BURTON. The one we were just talking about.

Mr. ZWERLING. The one he’s never seen or the one he made?

Mr. BURTON. The one that has the crossed-out part.

Mr. HEISSNER. Exhibit 134, I don’t know. It is not clear from this

document to whom it is written.

Mr. WILSON. Our understanding, it was a memorandum prepared

in anticipation of congressional hearings. Do you have any reason

to know that that’s not correct?

Mr. HEISSNER. That seems a very reasonable assumption, sir.

Mr. BURTON. But to whom would it be addressed? Who would

this go to? It wouldn’t just go in a dead letter file. Who would it

go to?

Mr. HEISSNER. I don’t know. Again, this is the first time I’ve seen

this. Normally, I’m not privy to documentation——

Mr. BURTON. But you prepared this document, you said.

Mr. HEISSNER. I prepared one paragraph, sir. Just that one item

at the very end. It includes text I prepared in an e-mail.

Mr. WILSON. Mr. Lyle, do you know whether this was a document prepared in advance of hearing?

Mr. LYLE. Yes, it was. It’s a draft document.

Mr. WILSON. Do you know whether the final version of this document ended up with no reference whatsoever to the Mail2 reconstruction problem?

Mr. LYLE. To answer your question, Chairman Burton, this

would be used to prepare the director of the Office of Administration to testify for the Appropriations Committee, which at the time

was Mr. Lindsay who was fully aware of this e-Mail2 anomaly that

is included in this draft. And to answer your question, the final

version did not contain reference to the e-Mail2 reconstruction.

Mr. BURTON. The crossed-out paragraph there was not in the

final version. Who prepared the final version?

Mr. LYLE. The final version was prepared jointly by me and my

staff in preparation for inclusion in a book.

Mr. BURTON. Why was that paragraph left out?

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Mr. LYLE. The reason the paragraph was left out is because the

information that’s being included was in preparation for the fiscal

year 2000 appropriations hearing which occurred in 1999; and the

issues in this paper, if you look through it, discuss either ongoing

projects or the future requests for funding that we would be seeking from the appropriators, the Office of Administration.

Mr. BURTON. Why was that paragraph on the e-mails left out?

Mr. LYLE. Because the request for appropriations was not going

to be requesting funds for the e-Mail2 reconstruction.

Mr. BURTON. Why?

Mr. LYLE. Because a decision was made that the project had to

be deferred in view of the Y2K crisis.

Mr. BURTON. But Congress had submitted subpoenas for these

documents as well as the independent counsels and Justice Department and everybody else. So you’re saying action was deferred intentionally because of the Y2K problem?

Mr. LYLE. No, sir, absolutely not. As I said earlier, the people in

the Office of Administration, myself and my staff, were unaware of

any issues in terms of the subpoena compliance one way or another. Those communications had taken place earlier. We were

working without any indication one way or another that there was

any issue relative to the subpoena compliance.

Mr. BURTON. Mr. Heissner who put that in there, he was aware

of some subpoenas. He said that earlier in his testimony. He put

that paragraph in. Didn’t you ask him why he put that paragraph

in?

Mr. LYLE. I wasn’t aware that Mr. Heissner put the paragraph

in, but I can tell you that in terms of what I believe Mr. Heissner

said earlier that he wasn’t aware of what goes on in terms of the

subpoena compliance, as I said before, issues relative to subpoena

compliance are handled in the White House counsel’s office. We

provide information on those.

Mr. WILSON. Mr. Lyle, when we interviewed you last week, we

asked you why no one informed appropriators, congressional appropriators before March 2000. This was your answer, and we wrote

it down verbatim. This is the quote. When you go to appropriators,

they ask a lot of questions. Let me read that again, because that

is the verbatim quote. When you go to appropriators, they ask a

lot of questions. Now, we didn’t followup. I admit we were amiss.

First of all, what’s wrong with appropriators asking a lot of questions?

Mr. LYLE. I don’t know what context you are referring to.

Mr. WILSON. We’re talking about a question put before you to as

to why before March 2000, nobody asked appropriators for money.

Mr. LYLE. Can you show me the question and then my answer?

Mr. WILSON. We can go back to you. We’ll can put that to you

in the form of a letter and go back at that point. But I will ask

this question. Why not—this is a question. We legitimately want

you to help us.

Mr. LYLE. And I am endeavoring to help you.

Mr. WILSON. Why did you not look upon congressional testimony

as an opportunity to tell Congress about this issue and inform

them of the problems you faced, the money and personnel that you

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needed, and simply to tell Congress what the state of play was on

this matter?

We’ve got documents where bullet points are getting removed.

They are not going up the chain of command to people higher.

From our perspective, and this is what we’re trying to work

through, it appears that you had an opportunity—and I know Mr.

Barry wanted somebody to move forward, and Mr. Heissner appears to have done the right thing, and he’s drafted the bullet point

that got crossed out. It looks like a lot of the people were trying

to do the right thing in the Office of Administration. Good career

people were trying to do the right thing. And our simple question

is, why did you not think this is an opportunity; I can go and get

help?

Mr. LYLE. I’m sorry, I don’t understand your question.

Mr. WILSON. All right. Let me try it again.

You’re going to go before Congress. You’re going to go before congressional appropriators. You had a problem. You had people who

wanted to fix the problem. You had Mark Lindsay that said it was

a priority of his, a first priority to fix this problem. You had people

that knew that unless you had money and unless you had people

to work on this problem, you weren’t going to move forward. So

why didn’t you think this is a good opportunity as a public servant,

as a lawyer, an officer of the court, I can go to Congress. I can tell

them about this problem. I can make myself right with the law. I

can get help, and then we’ll be able to fix the problem.

Mr. LYLE. You have to look at the context at the time in terms

of what was happening in the Executive Office of the President.

There were a lot of things that you said in your preparatory

statements——

Mr. WILSON. You could have given Congress the context.

Mr. LYLE. Do you want me to answer that question or the question you asked before? Which question?

Mr. WILSON. Please continue. Please answer the first question,

and then I’ll ask the second question.

Mr. LYLE. The context that the Office of Administration was in

at the time was the Y2K crisis that I discussed with you at length

during our interview. That project was the No. 1 priority. It wasn’t

just the No. 1 priority within the Executive Office of the President.

It was the No. 1 priority governmentwide in terms of information

technology, nationwide and worldwide.

I don’t think there’s any dispute about that the Executive Office

of the President’s computer system was in antiquated condition and

it needed to be taken from that state into a modernized, Y2K-compliant system. That was the No. 1 priority that our appropriators—

and I believe this committee—Mr. Horn, I believe, was also keenly

interested in our progress on how we were doing.

As you will recall, the goal was for governmentwide

compliance——

Mr. BURTON. Why didn’t you at least put it in there and at least

bring it up before the appropriators? Why not at least tell the appropriators we’ve got this problem? Y2K is a priority, but this is

a problem because Congress has subpoenaed documents, the independent counsel has, the Justice Department has, and we can’t get

584

this without additional personnel and money. Why didn’t you just

at least bring it up instead of crossing it out?

Mr. LYLE. I understand, Mr. Burton. Again, the Office of Administration people and myself were operating without any knowledge

of any concerns or issues relative to any subpoenas that this committee or any other—— Mr. BURTON. You knew about the e-mail problem.

Mr. LYLE. We knew that we had the back-up tapes, that they

were secure.

Mr. BURTON. Why didn’t you at least ask for the money and the

personnel to solve that problem even though you had the Y2K

problem?

Mr. LYLE. Again, as I explained to Mr. Kolbe, our appropriators—and as I said earlier, the Y2K issue was the top priority—— Mr. BURTON. I understand that. But you could have also put this

in there. There wasn’t one or the other. Why was it taken out?

Mr. LYLE. The project e-Mail2 reconstruction project had to be

deferred, like a variety of other non-Y2K projects, because we had

limited resources available to solve the No. 1 crisis facing—— Mr. BURTON. Doesn’t Congress have a role to play in the decisionmaking process of what priorities are? You were supposed to go

before Congress and tell them what the problems were. Y2K was

a problem. The e-mail was a problem, but you didn’t even mention

that. Why?

Mr. LYLE. The Congress is certainly on a variety of issues a place

where we go, and we have a very good relationship that we forged

with our appropriators. The request was submitted on March 20,

2000.

Mr. BURTON. Why didn’t you ask? Why didn’t you have that in

there?

Mr. LYLE. Because of the Y2K problem.

Mr. WILSON. Mr. Heissner, if I may go back to you for just a moment. If you go to exhibit 94 again, it’s the exhibit we were looking

at a moment ago, the e-mail from yourself to Christa Moyle. Down

the bottom of the page, the very bottom, it says, current status.

And it says, and I quote, awaiting funding and management decision to proceed. Is it fair to say—is it correct to say that the management decision and the funding decision was finally made in

February and March 2000? You didn’t have any decision in 1998

or 1999? Is that fair?

Mr. HEISSNER. That’s correct, sir.

Mr. BURTON. Your time has expired. We’ll try to get back to

those questions. Mr. Waxman’s time now.

Mr. WAXMAN. Mr. Chairman, we’ll take our half-hour of counsel

time on this side. I want to yield to Mr. Schiliro.

Mr. SCHILIRO. If I were watching this on TV, Mr. Lyle and Mr.

Heissner, I’d be confused because there seem to be conversations

about the same problem but two separate applications. We have

one e-mail problem where, in the ARMS Lotus interface, a number

of e-mails were not captured by this system. As I understood Mr.

Lindsay’s testimony in a previous hearing, it was a priority for him

to fix that prospectively. That was not your responsibility, was it,

Mr. Heissner, to do the actual repair of the interface problem?

Mr. HEISSNER. That’s correct, sir.

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Mr. SCHILIRO. That was a responsibility of the Northrop Grumman employees. So counsel was asking you questions before about

whether Mr. Lindsay talked with you about that because that was

a priority of Mr. Lindsay’s to fix it, but it would not have made any

sense for Mr. Lindsay to talk with you about fixing that problem

prospectively because that was not your responsibility.

Mr. HEISSNER. That’s correct.

Mr. SCHILIRO. When we look at the missing e-mails, we’re really

looking at two different issues. Mr. Lyle referred to this. There’s a

subpoena issue where e-mails were not produced in response to

subpoenas, and then there’s the issue you focus on which is the archival responsibility. And is that why you wrote what you referred

to before as Exhibit 92 and counsel referred to as Exhibit 94?

Mr. HEISSNER. I believe the intent of the nearly more accurate

version was describe the status of the Mail2 reconstruction, the reconstruction of mail non-records managed e-mail that was still residing on tapes but had not been recovered and put into narrative.

Mr. SCHILIRO. But your focus was not on that issue in response

to subpoenas. Your focus was because there was an archival responsibility to reconstruct these tapes at some point?

Mr. HEISSNER. That’s correct.

Mr. SCHILIRO. So when the chairman had and others had been

asking you questions about subpoenas, that wasn’t in your mind at

all at that point. You just had a responsibility to make sure the archives were correct for the future?

Mr. HEISSNER. That’s correct. The responsibilities had to do with

the technical issues in, No. 1, assuring that all the tapes were

maintained; No. 2, getting a system designed that would enable the

recovery of these records; and, No. 3, to perform the recovery eventually.

Mr. SCHILIRO. It would not have even have been within your responsibility to be concerned with subpoenas when it came to this

issue?

Mr. HEISSNER. My responsibility with respect to subpoenas was

to respond to them as I received them.

Mr. SCHILIRO. So again in the context of reconstructing the missing e-mails, it was not presented to you in the context of responding to previous subpoenas?

Mr. HEISSNER. That’s absolutely correct, sir.

Mr. SCHILIRO. When you wrote that e-mail and then it got picked

up in a briefing memo—but your responsibility in writing the email was not to inform Congress; is that correct? You weren’t told

you’re writing this because you have to inform Congress of the

problem.

Mr. HEISSNER. No. The intention was to clearly state the problem

as it existed.

The document that you’re seeing, exhibit 94, is part of exhibit 92

and just shows the context in which this response took place. It

seems that Ms. Moyle asked me to explain what Tony was talking

about, and so this is the explanation I believe. On the E 3878,

which is the second page of exhibit 92, Mr. Barry described the situation and gave the information, and I was asked to explain that.

Mr. SCHILIRO. Again, I don’t want to be redundant, but the context of this was not for you to inform Congress or for anyone there

586

to inform Congress of a specific problem. It was for you to try to

estimate how much it would cost to do this reconstruction for archival purposes?

Mr. HEISSNER. That’s correct.

Mr. SCHILIRO. Mr. Lyle, is that your understanding as well?

There are really two buckets of issues here, subpoenas and archival issues, and that when you came on board, your understanding—and in fact it’s the understanding I think that Mr. Lindsay

had—is that missing e-mails had no relevance to subpoena problems because the White House counsel’s office—Beth Nolan had

testified to this at the last hearing—had run a test in June 1998.

Pursuant to that test, they concluded the missing material had already been provided to the independent counsel, and so as far as

they were concerned there wasn’t missing information.

Your operative thinking then became not one of a subpoena problem in terms of compliance. You believed the problem was fixed

prospectively, and so in 1999, when you looked at the appropriations process, the question you faced was the need to provide—do

we need to ask Congress for money to fix the archival problem, not

anything in relation to subpoenas and information we may not

have produced.

Mr. LYLE. That’s right. We were asking for funds in our budget

submission for all kinds of—as I said, the Y2K issues.

That other aspect in terms of the e-Mail2 project was one that

had to be deferred and it was only relative to, OK, we’ve got the

back-up tapes. They are available. We’ve got them in our data center. They are secure for the anomaly.

The question then is, for purposes of our archiving for Federal

records, for Presidential records, all of those purposes, that was the

focus of the project. There were no issues in terms of subpoena

compliance whatsoever that we were operating under, and it was

in that vein that we viewed the project at that time, which is why

it was deferred with a variety of the other non-Y2K projects and

we focused all of our energy and efforts on the Y2K problem.

We had the back-up tapes secure in the data center, as I said,

for the e-Mail2 anomaly and for the letter D anomaly; and now

once Y2K had passed we were in a position to go to Congress and

provide them with information about the cost associated with the

reconstruction effort, possible contractors to do it, and how we were

planning on proceeding which took our significant involvement

from our information technology experts within the Office of Administration who had previously been dedicated to the Y2K problem. Now they were free to focus on the reconstruction project,

which is exactly what we have been doing and are currently doing.

Mr. SCHILIRO. That would explain why that paragraph was

crossed out of a briefing memo that you were asked about before?

Mr. LYLE. Exactly. Funding was not being requested at that time

for the e-Mail2 reconstruction effort. We’ve asked for it in March

of this year.

Mr. SCHILIRO. Without any of that explanation that you just provided or Mr. Heissner provided, if someone were just looking at the

paper evidence we have, one could speculate, well, maybe something was happening here and people did not want Congress to

587

know because there’s material crossed out. But neither of you were

aware of any sentiment of doing that?

Mr. Heissner, you were never in a position where you felt you

had an affirmative duty to inform Congress and someone came to

you and said you could not do that and you had to keep this quiet?

Mr. HEISSNER. That’s absolutely correct, sir.

Mr. SCHILIRO. You never heard any discussions in the White

House, anybody in the halls talking about any effort to keep this

quiet or keep it away from Congress?

Mr. LYLE. No.

Mr. WAXMAN. I’m pleased we got that clarification, because the

chairman seemed very frustrated with the knowledge that we now

have that some of those e-mails that had not been captured might

not have been turned over to investigators, this committee and the

independent counsel and other investigators. So he wanted to know

why you didn’t ask for this capturing of those past e-mails as a priority for funding. But your explanation is you didn’t even know

anything about past e-mails not having been—not made available

to all the investigators.

Mr. LYLE. That’s right. Those matters simply were not handled

in the Office of Administration.

Mr. WAXMAN. Now, Mr. Lyle, I want to ask you some questions

about these several versions of talking points, some of which are

dated February 24, 1999, which were produced to our committee.

These documents are numbered E 4382–4406. Could you explain to

us the purpose of these talking points, who were they for and why

were they prepared?

Mr. LYLE. Yes, sir. These are various drafts which you have

marked in the book exhibit 132 it looks like through 134. These are

draft documents that were prepared by the Office of the General

Counsel and the Office of Administration in preparation for the director of the Office of Administration’s testimony before our appropriators. It is various iterations, as you can see. It’s for inclusion

in materials that the director will review in preparation for his testimony.

In this particular case, the director of the Office of Administration at this time was Mark Lindsay; and these drafts were simply

put together by me and my staff to prepare him for that testimony.

These are internal documents. They are not documents that are intended to be conveyed in their form to Congress. They are to impart information to the director as best we could anticipate in

terms of what he would need to testify. So these are internal documents, and what you see are the various considerations that went

through until a final version was submitted for Mr. Lindsay.

[Exhibits 132 and 133 follow:]

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Mr. WAXMAN. These are talking points not for the Congress, not

to be put into the public record at a hearing by the Congress but

simply to inform Mr. Lindsay of the different issues when he goes

before the appropriations committee and asks them to continue to

fund for the next fiscal year the activities of the Office of Administration?

Mr. LYLE. That’s quite right. The focus, as you can see in reading

these, is the appropriations before him at the time, the fiscal year

2000.

Mr. WAXMAN. There are several different drafts of the talking

points. Were you involved in drafting the talking points?

Mr. LYLE. I have no memory of reviewing these at the time— around this time that they were being drafted in the March—I’m

sorry, in the February 1999, timeframe, but I have seen them since

then in connection with producing documents here for this committee.

Mr. WAXMAN. Do you have any personal knowledge of how the

talking points were prepared?

Mr. LYLE. No, I do not. I should say I know they were prepared

by my staff, that they gathered information from a group of—a variety of materials that were provided by the Information Systems

and Technology branch within the Office of Administration and

that the information—the concepts and the bullet points that were

provided focused, as you can see, on the capital improvement—capital investment program or plan and then also on the Y2K implementation which was the main thrust of where we were at that

particular time.

Mr. WAXMAN. Have you had any subsequent conversations with

Office of Administration or OA personnel about the drafting of

these talking points?

Mr. LYLE. Subsequent to?

Mr. WAXMAN. The time they were given to Mr. Lindsay.

Mr. LYLE. The final draft would be the one that would be given

to Mr. Lindsay. I was shown these in connection with a document

production that was being done for this committee, and I had conversations with my staff in the context of those at that time.

Mr. WAXMAN. One draft numbered E 4392 through E 4396 is labeled Kate’s comments. Who is Kate?

Mr. LYLE. That would be Catherine Anderson. We call her Kate.

Mr. WAXMAN. Who is she?

Mr. LYLE. She is an attorney in the Office of General Counsel in

the Office of Administration.

Mr. WAXMAN. This is a draft of the talking points that Ms. Anderson reviewed with her notations; is that correct?

Mr. LYLE. Yes.

Mr. WAXMAN. There’s a bullet point referring to the Mail2 reconstruction project in this draft that has been scribbled out by hand,

and that same bullet point does not appear to be in what seems

to be the final version of the document. Do you know why Ms. Anderson scribbled out the bullet point?

Mr. LYLE. Based on my discussions with her, these—that particular issue was removed because the thrust of these—of this information and the thrust of the—the purpose for which it was

being prepared was an appropriations hearing for fiscal year 2000,

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and the projects and the issues and the discussions in here were

the capital improvement—I’m sorry, the capital investment plan for

fiscal year 2000 and also the Y2K implementation issue which was

an ongoing—it was—we needed to move into the year 2000. There

was discussion of those current issues relative to the budget submission.

The e-Mail2 reconstruction project was not relevant because it

was not—the funds were not being sought for the e-Mail2 reconstruction project in this appropriation, the subject of this material.

Also, bear in mind, as I said earlier, this is being prepared for

Mr. Lindsay, who is the director of the Office of Administration at

the time; and he, as you all know, knew a great deal about the

Mail2 reconstruction project.

Mr. WAXMAN. Then let’s pin it down even further. Did Ms. Anderson remove the Mail2 bullet as an attempt to prevent the Congress from finding out about the Mail2 problem?

Mr. LYLE. Absolutely not.

Mr. WAXMAN. In fact, returning to the point you made earlier,

did you or Ms. Anderson view the Mail2 issue as a problem affecting the White House’s ability to comply with document requests of

subpoenas?

Mr. LYLE. No, sir.

Mr. WAXMAN. To your knowledge, the decision about whether or

not to include the Mail2 bullet had nothing whatsoever to do with

the issue of notifying Congress of problems of subpoena compliance?

Mr. LYLE. No, it had nothing to do with that.

Mr. WAXMAN. To sum up, Ms. Anderson did not think Mail2 reconstruction was an issue for this particular appropriations hearing; and she further thought that, if the issue did come up, Mr.

Lindsay was well equipped to respond as he had been the one who

handled the Mail2 problem originally; is that right, Mr. Lyle?

Mr. LYLE. That’s right. Ms. Anderson is a very capable, hardworking lawyer, and that is exactly the reason that she was proceeding.

Mr. WAXMAN. When you come in and ask for money, you could

ask for everything you might possibly want funded, but you ultimately have to make some decisions on priorities. And this was not

a priority at that time, to get funds to go back and examine the

back-up tapes, as you saw it, for archival purposes and for no other

reason.

Mr. LYLE. That’s right.

Mr. WAXMAN. It’s really not fair for people to come in and say

you should have known the subpoenas were not being complied

with because you had no knowledge of it.

Mr. LYLE. That’s exactly correct. We had no knowledge of the

issues of subpoena, so we were making prioritizations based on the

needs at the time, and the paramount concern was the Y2K issue.

The other information technology types of projects that were nonY2K needed to be deferred.

Mr. WAXMAN. Could you imagine what this committee would do

if your computers failed the Y2K because you were trying to get the

archives ready for the future historians?

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Mr. LYLE. If our computer system had failed, I think this committee and I dare say a variety of other committees would have

been very displeased with our—including my boss and my boss’s

boss all the way up in the White House, there would have been

great displeasure; and, thankfully, we didn’t have to face that.

Mr. WAXMAN. I’m pleased that you’ve clarified this issue. Because it seemed like, with some of the other questions, were trying

to confuse it; and so it’s clear now what we’re talking about, different issues. When they are all mixed together, you can try to

paint a picture to fit in with preconceived notions, but if you look

at the facts as they were, I now understand your position.

Mr. Schiliro.

Mr. SCHILIRO. Mr. Heissner, this is my last question. I just want

to make sure we’re completely clear on this point. Your only involvement in the e-mail reconstruction is as it pertains to the archival responsibilities?

Mr. HEISSNER. Yes, sir, that’s correct.

Mr. SCHILIRO. It’s not because you were asked to inform Congress and it’s not because you were asked to comply with subpoenas and there was some information that wasn’t provided?

Mr. HEISSNER. That’s correct, sir.

Mr. SCHILIRO. Thank you, Mr. Heissner.

Mr. WAXMAN. I’m going to—even though we have more time allotted to us in this period of questioning, I’m going to yield it back.

I think Mr. Shays is probably waiting for his turn; and if there are

other witnesses, we’ll get our opportunity to go through it further.

But I very much appreciate the testimony both of you have given.

It has been a useful clarification.

Mr. BARR [presiding]. The ranking member yields back the balance of his time. The chair recognizes the gentleman from Connecticut for 5 minutes.

Mr. SHAYS. Thank you.

Mr. Lyle, Mr. Heissner, concealing subpoenaed or requested information is a crime. And the bottom line is, in my judgment, the

White House obstructed justice, and we’re just trying to see who

did it. So that’s the challenge.

I want to make sure that I understand your point, Mr. Heissner,

that you clearly stated the problem as it existed. What does that

mean? In response to Mr. Waxman, you clearly stated the problem

as it existed. What was the problem as it existed and who did you

state it to?

Mr. HEISSNER. In the sense of which the question was asked, I

believe it refers to the Mail2 server failure.

Mr. SHAYS. Let’s start with that. How did you clearly state the

problem?

Mr. HEISSNER. How do I clearly state the problem?

Mr. SHAYS. Yes. You told somebody.

Mr. HEISSNER. There was documentation of which I described the

problem.

Mr. SHAYS. And that there were—in the Mail2 problem, there

were 246,000 potential e-mails that were not discovered in the site.

That’s exhibit 1. That’s what we learned from Northrop, and that’s

what you learned from Northrop on June 18.

[Exhibit 1 follows:]

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Mr. HEISSNER. No, I have never seen this before. I’m sorry. But

what is the question, sir?

Mr. SHAYS. You’ve never seen the document from Northrop that

talked about the different—all the different people that potentially

had e-mails that might be relevant to the impeachment hearings,

relevant to this committee, relevant to Mr. Starr? You—— Mr. ZWERLING. We may have a problem, Congressman, because

document—— Mr. SHAYS. Exhibit 162. It’s exhibit 1 on mine. I’m sorry—exhibit

63. I’m going to need another 5 minutes when we’re done here if

we’re spending all the time looking here.

Why is this such a mystery to you?

[Exhibit 63 follows:]

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Mr. ZWERLING. We were not provided any documents prior to the

hearing even though we were requested—— Mr. SHAYS. These are White House documents.

Mr. ZWERLING. But this witness has not seen these documents in

preparation for the hearing is what I’m telling you. That’s why he

needs to read it now.

Mr. BARR. The answers to the question now would come from the

witness. We would appreciate it, please. That’s in keeping with

standard procedure.

Mr. HEISSNER. As I’m looking at this document, it looks like it’s

a record of processing of updates.

Mr. SHAYS. Isn’t this a document that describes the potential emails that were not captured, potential communications that

weren’t captured?

Mr. HEISSNER. From the document—as I see it now, I don’t see

anything that indicates that these were individuals whose e-mail

wasn’t captured. I see—— Mr. SHAYS. This was done on June 18th. Wasn’t this part of the

test?

Mr. HEISSNER. I was not familiar with the test, and I didn’t participate in this. My involvement began in late 1998, sir.

Mr. SHAYS. After this was done. And why is that? Why did your

involvement happen then?

Mr. HEISSNER. Well—— Mr. SHAYS. In other words, how can you tell me that you forwarded on the extent of the problem, you clearly stated—clearly

state the problem as it existed? It sounds to me like you didn’t

know how the problem had existed. I mean, is that your testimony?

Mr. HEISSNER. I had been asked to provide a summary of the

events to the then director, to get her updated. I went and inquired

from some of my colleagues—— Mr. SHAYS. Can you put the mic a little closer to you?

Mr. HEISSNER. I then inquired from Northrop Grumman staff

and other technical people to obtain a description of the problem

as it was understood at the time and then provided that information in a memorandum to Mrs. Cleal.

Mr. SHAYS. And is it your testimony that you weren’t aware that

there were hundreds of thousands of potential e-mails that had not

been captured?

Mr. HEISSNER. My understanding was that there were somewhat

over 400 accounts whose information relating to the server—the

mail server that would contain that mail had not been encoded

properly. It was an upper lower case problem. That’s what I understood. How many e-mails there were I was not aware of and I

didn’t know. I had no knowledge of that.

Mr. SHAYS. You had no knowledge. So really what you’re telling

us is all the information you provided was almost irrelevant because Northrop had known and the White House had known, others in the White House had known since June 18th that there were

thousands of e-mails that hadn’t been captured.

Mr. HEISSNER. There are two numbers we are looking at. There’s

a number of accounts affected and a number of messages. The

number of messages was not known. The number was accounts was

an estimate given to me by Northrop Grumman staff.

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Mr. SHAYS. OK. Now, under Carole Lieber at the top of the first

page, the handwritten note talks about the number rejected by

ARMS.

Mr. BARR. If I might interrupt, the gentleman’s time has expired.

We’ll go to the other side and then come back to the gentleman

from Connecticut.

Mr. SHAYS. Fine.

Mr. BARR. The gentleman is recognized for 5 minutes.

Mr. KANJORSKI. Let me straighten out again. Your job was to

find out what was wrong and to try and correct it for archival purposes, is that correct?

Mr. HEISSNER. That’s correct. My job was to find out what was

not working and to find out what could be done to make the corrections.

Mr. KANJORSKI. And so for purposes of subpoenas, whether they

be by special counsel or any committee of Congress, that was of no

significance to you; and, therefore, the numbers of e-mails lost was

of no significance to you. It was to find and identify what the problem was and how it could be reconstructed?

Mr. HEISSNER. That’s correct, sir. The focus was on making sure

that the back-up tapes were being maintained, they were not being

recycled and that the data could be reconstructed.

Mr. KANJORSKI. Probably the general public watching this hearing are not as familiar with as complicated a computer system as

exists at the White House. But do you have over the years an experience that it’s a perfect system that works all the time or is it not

unusual that a computer system crashes?

Mr. HEISSNER. Well, I guess that’s a truism that to fail is human

but to really foul things up takes a computer, sir.

Mr. KANJORSKI. All right. I would like the record to reflect, Mr.

Chairman, that in my congressional office here in the House in the

last 7 weeks my computer system has crashed about seven times;

and I would be hard pressed to identify what materials have been

lost because we’re reconstructing what was on that. That is not unusual, is it? The computer contractors for the House of Representatives tells me that happens all the time. Maybe my friends on the

other side can tell me their computers are absolutely perfect and

have never crashed and therefore they have never lost any material, but then I would tend to think there probably was a conspiracy in the House at least to have this happen.

This was just an occurrence of the weakness of our reliance on

a computer to receive and assemble material, hold material, etc.,

is that correct?

Mr. HEISSNER. That’s correct sir.

Mr. KANJORSKI. And your job was not to assemble information or

evidence for anyone. It was merely for archival purposes to get this

problem straightened out as best you can and to do that in a

prioritized basis, 2000 issue being the most important, is that correct?

Mr. HEISSNER. That’s correct, sir.

Mr. KANJORSKI. Thank you, Mr. Chairman.

Mr. BARR. Mr. Heissner, Mr. Lyle, you’re both aware of the fact,

I presume, that the White House computer system is not just any

computer system. Is that correct?

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Mr. HEISSNER. Correct.

Mr. BARR. There are special laws that pertain to the White

House computer system as the computer system that is officially

designed to and required by law to maintain communications, data,

records and so forth of the executive branch; therefore, very special

laws apply to the retention of that information and to ensure its

integrity that might not apply to other computer systems such as

the gentleman alluded to. Is that correct?

Mr. HEISSNER. That’s correct sir.

Mr. BARR. That’s your understanding, too, I presume, Mr. Lyle?

Mr. LYLE. There are rules, Federal Records Act, Presidential

Records Act, Armstrong, those types of rules apply to data on—at

least on the Executive Office of the President systems.

Mr. BARR. If somebody tried to imply that what we’re looking at

here is irrelevant simply because some other computer systems

somewhere, sometime break down or don’t maintain records properly and therefore that’s an excuse for what we’ve seen happen

here. That would certainly not be an accurate or legal interpretation or implication, would it?

Mr. LYLE. Are you referring to Mr.—Congressman Kanjorski’s

statements?

Mr. BARR. Certainly not.

Mr. LYLE. I don’t know that—what other—whatever happens to

other systems. I focus on the Executive Office of the President.

Mr. BARR. You understand that there are very special laws and

regulations that apply to that and make it very different from

other systems.

Mr. LYLE. The rule—— Mr. BARR. There are legal obligations that relate to the White

House computer system, records retention system, that don’t apply

to any other systems, isn’t that correct?

Mr. LYLE. I know that we, the Executive Office of the President,

are subject to the Federal Records Act, the Presidential Records

Act and related cases, including the Armstrong case. What goes on

for other agencies or other branches of government I’m not in a position to comment on, sir.

Mr. BARR. Nor is it relevant, is it?

Mr. LYLE. I have no idea, because I have no idea what the rules

are.

Mr. BARR. Which would mean it would not be relevant for these

proceedings here today.

Mr. LYLE. I have no way to say one way or another. I have no

basis to state.

Mr. BARR. Well, I suspect you do, because you just cited to me

special laws that relate to the White House records system.

Mr. LYLE. I understand that they apply to our systems. The applicability of those rules and what other cases are applicable to

other systems I have no idea.

Mr. BARR. Which makes them irrelevant for our process here

today. All I’m saying is they really have no relevance. If somebody

tries to say that inquiring—inquiries by the Congress into lapses

into the records management system and retention system at the

White House are inconsequential because these sorts of things

might happen to other systems really is not relevant because of the

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special laws that apply and the requirements apply to the—I’m not

asking a question. I’m making a statement. So you don’t have to

worry about it for purposes of our inquiry here today. I think you

understand that, and I think Mr. Heissner understands that, too.

Mr. KANJORSKI. Would the gentleman yield?

Mr. BARR. I’ll be happy to yield.

Mr. KANJORSKI. If I may, I happened to have the occasion to be

in the White House the third day after the inauguration of President Clinton, and I recall something that was astounding to me,

and that is that every computer that I saw in every office of the

White House was gutted under court order. It had a sticker on it,

and all the insides and all the materials were taken. And had backup systems or computers existed in the White House the third day

that this administration took office—I would ask the question, how

could you possibly reconstruct what happened archivally for those

3 or 4 days or 2 weeks before an entirely new system was implemented in the White House?

Mr. HEISSNER. I think we are dealing with two kinds of systems.

The desk top computers that individuals use use two kinds of storage, use storage that resides on that machine’s hard drive, and

they also use network storage. The e-mail systems are more centralized systems. And so anyone that can—that has an account can

access e-mail.

And I think at that time it was not—it wasn’t Lotus Notes. It

was another system. All In One I believe it was called. Anybody

that could connect with All In One from any terminal had an account, could send e-mail. However, any records that they would

have created during those first 3 days were then removed because

the hard drives were removed from their system, could not be reconstructed, no.

Mr. KANJORSKI. So, in fact, to the laws that Mr. Barr refers to

about this tremendous obligation that the executive branch has to

keep records, we know for a fact—and I think you are aware of the

fact—that the computer materials were extracted from the White

House at the end of the Bush administration and didn’t exist for

several weeks. Then all those archival records are basically lost, is

that correct?

Mr. HEISSNER. That’s very likely true, sir.

Mr. BARR. If you all feel comfortable operating on that basis, you

all feel free to. I think you’ll find real problems if you rely on that

sort of legal reasoning.

The gentleman from Connecticut is recognized for 5 minutes.

Mr. SHAYS. Mr. Heissner, I made some assumptions that, given

this was your area, you would have been aware of this document.

And I really apologize, but that itself is news to me and news to

the committee. This is a document—this is exhibit 62 which you

have in front of you. This is the document that was supplied by

Northrop and prepared by Bob Haas. Do you know Bob Haas?

Mr. HEISSNER. Yes, I do, sir.

Mr. SHAYS. It’s your testimony you have never seen this document before.

Mr. HEISSNER. That’s correct, sir.

Mr. SHAYS. OK. Wouldn’t it have made sense for you to see this

document?

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Let me just clarify one point, because I think it’s important for

you to know that—look under the first person, Carole Lieber. And

it says in writing 5. These are rejected e-mails. It gives the number—each one of those numbers and the numbers of rejected emails—209, 441, 647. I mean, I accept the fact under oath you

haven’t seen this document. I think it’s astounding. We added them

all up. There are over 246,000.

Mr. HEISSNER. I’ve sent—I’ve never seen the document before.

This happened before I became involved in this process.

Mr. SHAYS. But the point is, you then wanted to recapture and

provide some meaningful information to somebody, and it’s almost

like you were set up. Like you were providing information to someone else and you weren’t being provided all the information, which

I think is curious. And again with my suspicious mind, given all

that’s transpired in the past, I think it was purposeful, but we’ll

probably never be able to prove it. 246,000 e-mails that weren’t

captured just under the Mail2 problem, not to mention the letter

D problem and the Vice President problem. The Vice President

used a different system, so we don’t have his.

So you go with 246,000, and then you say those are the all incoming e-mails not in ARMS, and then we subtract the e-mails

found in individual PCs, then we subtract the e-mails found attached to sent e-mails with history, then we subtract the e-mails

found in printed files, then we subtract the e-mails retrieved from

back-up tapes. And then what you do is you take the—you subtract—all these undisclosed e-mails, these 246,000, you then subtract the not relevant and then you get the subpoenaed, not produced. And right now we have potentially a lot of subpoenaed, not

produced.

Now, Mr. Lyle, because you’ve wanted us to believe that somehow the fact that you have the Y2K problem that they are mutually exclusive and that this problem can’t be dealt with, that you

can’t hire someone else to deal with it, that you can’t ask Congress

to provide more information, that you can’t say to Congress, you

know, we have a Y2K problem but, by the way, we can’t find

246,000 e-mails and let Congress know about it.

And what really amazes me is that, even if you made a decision

on your own and others, maybe not you, not to abide by the law

to hand over all subpoenaed or requested information—let me

make this point, and I’ll let you respond—you and others chose not

to, at least publicly, explain that there were 240,000 e-mails that

we hadn’t yet found. And I suspect and in my suspicious mind that

it might have something to do with impeachment.

And, by the way, I voted against impeaching the President. But

I suspect it might have been because of that and because you simply didn’t want the story to come out. What else am I to expect?

Because nothing prevents the White House from explaining to all

the relevant jurisdictions that we had this problem.

Mr. LYLE. Mr. Shays, as I’ve said previously, I’m aware of no effort by anyone not to be responsive to your request for information.

I certainly was not, and I’m aware of no one who was. The information exchange between this committee and the White House counsel’s office is something I simply do not know. I have no knowledge

of whatsoever. I cannot—I cannot tell you.

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Mr. SHAYS. So you didn’t know there were any e-mails missing?

Mr. LYLE. I did not know one way or another what information

you had sought.

Mr. SHAYS. That’s not the issue. The issue is—let’s just go

through the way your mind thinks. You didn’t know there were any

e-mails missing from the ARMS.

Mr. LYLE. I’m not saying——

Mr. SHAYS. No, no. Just tell me yes or no. Did you know?

Mr. LYLE. I am not saying that I was not aware that e-mails

were not captured on the Automated Records Management System.

I want to be clear on that. I am not saying that. What I am saying

is that the information about those anomalies was not information

that I was charged with or anyone on my staff was charged with

providing to the committee. Those matters were just the—all the

Office of Administration was was a conduit of information to the

appropriate people.

Mr. SHAYS. Should I be surprised that implicitly you’re telling me

you didn’t know we were subpoenaing information—we, the Judiciary Committee, the Government Reform Committee, Mr. Starr’s investigation? You weren’t aware that any—there weren’t subpoenas

out there to look at e-mails?

Mr. LYLE. Remember, I joined the Office of the President in November 1998.

Mr. SHAYS. November 1998.

Mr. LYLE. I have never seen any of the subpoenas that——

Mr. SHAYS. Where did you live before you—you are—weren’t

aware—were you aware there was an impeachment?

Mr. LYLE. I’m not saying I wasn’t aware that there was an impeachment. I’m saying that I wasn’t aware of the subpoenas or the

information in terms of what was being sought and what was being

provided. It simply was not a function that was within the Office

of the Administration.

Mr. SHAYS. I understand you’re saying it’s not your line of responsibility. I just want to understand you. I want to understand

the mentality of the people who worked in the White House. I want

to understand why we didn’t learn about this problem until 2 years

after, basically. And it’s just helpful to know because, ultimately,

somebody knows. It’s like—it’s—really, it’s the same kind of problem I had when I just want to know who hired Craig Livingstone.

Craig Livingstone didn’t know who hired him, and nobody else

knew. He just happened to work at the White House. I think almost any American knew there were hearings on the President and

knew that information was being subpoenaed.

Mr. LYLE. I didn’t say that I didn’t know there were hearings,

and I didn’t say I didn’t know information was being sought. And

that was being provided. What I’m saying is I don’t know what that

was. I don’t know—I never saw the subpoenas.

Mr. SHAYS. Were you ever—I’m sorry.

Mr. LYLE. I had no idea as far as the communications between

this committee and the White House counsel’s office. I wasn’t in

the White House counsel’s office, never have been. I was in the Office of Administration, which is a different—it’s actually housed in

a completely different building.

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Mr. SHAYS. Were you aware of the problem? You were aware that

there was a problem that there were these missing e-mails.

Mr. LYLE. As I said earlier, I learned of the Mail2 anomaly.

Mr. SHAYS. What did it matter that there were missing e-mails?

What did your mind say? So there are missing e-mails. You

thought, well, big deal, there’s missing e-mails. Nobody wanted any

of them? What was in your mind?

Mr. LYLE. In April 1999, when I learned about the e-Mail2 anomalies, I was learning about it in connection with the letter D anomaly which I’ve discussed. And in the context of those discussions,

we—a number of things had to happen. Look, OK, what do we do

about the anomaly? What do we do? The e-Mail2 was a guide. We

need to do a couple of things. We needed to do a couple of things.

We need to make sure we’ve got the data on the back-up tapes,

which we did assure ourselves of. So that information was put, and

it was secured, it is tucked away now under lock and key on the

back-up tapes. It’s all there. So the Federal Records Act, the Presidential Records Act, all those—the laws that Mr. Barr was asking

me about, you’ve got the back-up tapes so that you can have them

for archival purposes.

The other thing that needed to be done is, OK, we need to advise

White House counsel’s office.

Mr. SHAYS. Let me just say—— Mr. LYLE. What we needed to do was advise White House counsel’s office of the issue. Mr. Lindsay had previously handled the eMail2 anomaly. He had communications with the White House

counsel’s office. So those two components were the things that were

going on. So we had elevated it—— Mr. BURTON [presiding]. Mr. Shays, let me interrupt briefly. I

yield to Mr. Kanjorski. Then I’ll give you my time.

Mr. SHAYS. I’m happy. I’m going to very patient, but I will take

a little more time.

Mr. LYLE. I’m happy to answer your questions.

Mr. BURTON. Mr. Kanjorski, you have questions?

Mr. KANJORSKI. If I may, on this document maybe I could ask

counsel for the committee to explain, is the number of e-mails missing on the extreme left hand column of the page? Is that the number or is it the number under the name?

Mr. BURTON. It’s the number under the name. The counsel would

be happy to explain if you choose.

Mr. KANJORSKI. What’s the number on the left hand corner?

Mr. BURTON. Let me put the counsel——

Mr. WILSON. Our understanding—the test was conducted by Mr.

Haas, and he determined two things. First of all, all the individuals

who were then employed who were served by the Mail2 server—

so these are all the individuals whose accounts were affected by

this computer problem, by the e-mail problem. So he printed out

a master list of all of the individuals who were affected by the

problem.

And then he determined two types of information. One, the number of e-mails that were then on their system. So on that particular

day, June 18, 1998, for example, Carole Lieber, there were 158 emails on her system that, you know, many could have been erased

the previous month or week, but on that particular day there were

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158. Of those 158, 5 e-mails had not been captured by the ARMS

system.

So the first column represents the total number of e-mails that

were on the person’s system at that particular time. The second

column indicates the number of e-mails that were not captured by

the ARMS system. The total number of that second column is

slightly over 246,000.

Mr. KANJORSKI. If you would go through the entire document and

total it up, the second column, 246,000.

Mr. WILSON. Yes, sir.

Mr. KANJORSKI. OK. Now that you’re looking at that document

down there, it strikes me I’ve just gone through this in a cursory

manner, but I see some of the most important people in the White

House—the chief of staff and the President’s assistants—they get

very few e-mails, and very few were lost. Do you notice that? If you

go to Erskine Bowles, page 00309. Is that correct? Yes. He—that

day only—he had 1,108 e-mails and 161 were lost, about 10 percent

or 15 percent.

Mr. KANJORSKI. Counsel has just explained to me that all of

these are retrievable, is that correct? Erskine Bowles, 161 were

lost. He had 1,108 on his computer that day.

Mr. HEISSNER. Yes, the purpose of the reconstruction design of

the system design is to design a system that allows the retrieval

of these managed records subject to the ability to read the tapes

on which the back-ups were created and the presence of those

tapes.

Mr. KANJORSKI. And you have the tapes.

Mr. HEISSNER. We maintained—when the problem was discovered, the directions were given to Northrop Grumman to retain all

the tapes. This is sort of the three blind men and the elephant kind

of a problem, because as you ask different people you get different

answers. It appears, but nobody can tell for certain, there was a

short time period somewhere between 1996 and 1998 where these

back-up tapes were, after being recycled, which means after the

tape had been created and had been maintained for maybe 4 weeks

or 6 weeks or whatever the retention period was, that same type

was used again.

That practice was stopped as soon as Northrop Grumman became aware there was a serious problem. So I cannot say for certainty that everything that ever went on a Mail2 server that was

an e-mail message can be recovered. But to the extent that the

tapes exist and they can be read and we believe we stopped the

bleeding, which—we corrected the problem. We also made every effort to make sure that the tapes—the back-up tapes were created,

were kept. To that extent, these records that appear here should

be recoverable.

Mr. KANJORSKI. And at some point we’re going to be able to have

them and you’re working on reconstructing them now, is that correct.

Mr. HEISSNER. That’s correct. And the objective is to recover

them.

Mr. KANJORSKI. So these hours we’re spending here, we’re eventually going to be able to read these things.

Mr. HEISSNER. That’s correct, sir.

619

Mr. KANJORSKI. Maybe I think we have too much time. We don’t

have anything to do in the Congress. We’re going to rehash this because we can’t wait or we’re trying to find out why they aren’t

here. I’m not sure I understand the thrust of the issue at this point

where we’re beating you three gentlemen to death over something

that is going to be reproduced. It wasn’t your responsibility. You

weren’t involved in subpoenas. You’re technical people. You’re

doing the best you can to reconstruct.

Mr. BURTON. The gentleman’s time has expired.

Perhaps I can shed just a little bit of light on it.

Subpoenas were issued by the Congress, a number of committees

and the independent counsels asking for all documents that may be

relevant to these various investigations. These e-mails were part of

the subpoenaed material. From September 1996 through 1998 we

don’t have them, and we think that they may be very relevant to

what we were looking into, and that’s why this whole issue is so

important.

Mr. KANJORSKI. I agree with the President, Mr. Chairman. We

ought to find out what happened to those 10 pounds he lost.

Mr. BURTON. Let me just ask one question, then I will yield to

Mr. Shays, and that is go back to exhibit 134, and that’s Mr. Lyle,

that’s the document where the Mail2 reconstruction was crossed

off, and that was not put on the final draft. It was prepared for the

Appropriations Committee, and you said it was because of the Y2K

problem that you had so much—you had to focus so much attention

on that, and the e-mail problem was not that significant importance at that time, so you didn’t pursue it. I would just like to ask

you this question: At the same time the White House was installing Palm Pilots for the White House staff, they were creating new

fax cover sheets for the White House staff, and they were working

on the White House Christmas card list. Now, that was going on,

and you thought that was important enough to pursue it. But the

e-mails that were important, relevant to all of these subpoenas and

these investigations, wasn’t as important as the Y2K. Can you explain the difference there in the priorities?

Mr. LYLE. The—my understanding is that the system that you

talk about, the Christmas card system——

Mr. BURTON. Well, and the other two, yeah.

Mr. LYLE. The other two are the day-to-day operations that our

staff was doing. Those were ongoing. I mean, you still had to service customers, you still had to provide service. You had to fix their

systems.

Mr. BURTON. The Palm Pilots and all that.

Mr. LYLE. Those are customer service types of things. Those are

always ongoing. You have to do that. So those were projects that

were ongoing.

Mr. BURTON. And the fax cover sheets for the White House staff?

Mr. LYLE. Well, again, those are ongoing customer service initiatives. We have to have a day-to-day operation capability that allows people to do their jobs, which would include——

Mr. BURTON. Why wouldn’t subpoena compliance be ongoing? I

mean, it seems to me that would be pretty important, subpoena

compliance. Why wouldn’t that be ongoing? I mean, if the fax cover

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sheets and the Palm Pilots were important, why weren’t the subpoenas an ongoing—— Mr. LYLE. Subpoenas, responses to subpoenas are always done,

and we do respond to subpoenas. We’ve gotten subpoenas from this

committee. We’ve gotten subpoenas from the Office of Independent

Counsel since I’ve been there. We respond to those accordingly in

the same process that I’ve described in my prior testimony.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. Mr. Lyle, I’m a little confused, and I apologize if it’s

my fault. I realize, Mr. Heissner, you are a career employee of

many years and serve with distinction, so this is a real unusual circumstance for you to be before the committee, but I think you understand the challenge. I mean, the challenge is that information

was subpoenaed by Starr’s investigation, by this committee, by the

Judiciary Committee, and for 2 years, from basically September

1996 to November 1998, the problem existed, but people in the

White House, and we just need to know who, knew the extent of

the problem, knew on June 18th. But you didn’t know the extent

of the problem because for one thing you were never supplied the

document that described how there were 246,000. And that’s telling, because, you know, this is an area that you should have been.

And then it strikes me you were asked in the fall later in that

year of 1998 to describe the problem to others, and you were not

given all the relevant information. Am I off track a little bit? I

mean, were you given all the relevant information—— Mr. HEISSNER. The—— Mr. SHAYS [continuing]. To know the extent of the problem?

Mr. HEISSNER. The collection of the information involved the discussions with other technical staff to get an overview of the problem and to get an order of magnitude of the problem, and it is very

likely that I was not given full details to the infinite degree.

Mr. SHAYS. Your testimony says that you weren’t given this document that was provided by Bob Haas of Northrop to someone; you

were not given—and it was provided on June 18th, 1998—you were

not given that document, and this document shows 246,000 e-mails

that weren’t captured just under the Mail2 problem. And you did

not have that document.

Mr. HEISSNER. No I did not have that document.

Mr. SHAYS. You did not have that document, when you then tried

to clearly state the problem as it existed in the fall of 1998, you

did not have this document to refer to.

Mr. HEISSNER. That’s correct, sir.

Mr. SHAYS. I don’t know whose clock this is now, whose time that

is. Is that my time now?

Mr. BURTON. You and Mr. Barr are both next.

Mr. Barr, do you want to go next?

Mr. Shays, you have 5 minutes. That was my time.

Mr. SHAYS. Thank you for your time, Mr. Chairman.

Mr. Lyle, what I’m trying to wrestle with in your explanation is

you just proceeded to say that you have provided subpoenaed information to various committees at request. Is part of your responsibility to provide subpoenaed information?

Mr. LYLE. It’s part of everybody’s responsibility to provide information responsive to subpoenas.

621

Mr. SHAYS. Let me just say the problem is, with everybody, when

everybody is responsible, nobody is. So I need a little more accuracy. When is it your responsibility?

Mr. LYLE. When a request for information is received, and information internally needs to be provided to the White House counsel’s office, a notification is sent throughout the Executive Office of

the President complex for individuals to search their files——

Mr. SHAYS. OK.

Mr. LYLE [continuing]. And their files and materials, and then,

in a fashion just like what Mr. Heissner described, submit that up

the chain to make it to the White House counsel’s office for them

to review.

Mr. SHAYS. So your information was only to provide the information you personally had or in your capacity as the director of the

Executive Office of the President’s Office of Administration, you

would have a more expanded task to make sure others complied

with subpoenas.

Mr. LYLE. When it comes into the Executive Office of the President into the Office of Administration, it goes in through the General Counsel’s Office, who sees to it that everyone responds back.

It’s all gathered up, and certification is sent up to the counsel’s office wherein they——

Mr. SHAYS. But what I’m trying to clarify is when you get requests, it’s not just for your own specific e-mail, but it can be other

e-mails that are in your system.

Mr. LYLE. It’s whatever is under my control.

Mr. SHAYS. Right. Under your control. Which could include a

number of the people on this list, correct?

Mr. LYLE. I don’t know.

Mr. SHAYS. I mean, just some of them, let’s just say Ira Magaziner, if there was a request for Ira Magaziner information, they

might make that request to you to provide information that would

be in your system.

Mr. LYLE. What information is sought in the notification that we

receive in the first instance is what we endeavor—what each person is required to endeavor to respond to.

Mr. SHAYS. Mr. Lyle, could you look at this exhibit 62 and just

tell me if you have ever seen it?

Mr. LYLE. I have looked at it, and I don’t believe I’ve seen this

before.

Mr. SHAYS. You don’t believe it, or you haven’t seen it?

Mr. LYLE. I don’t believe I’ve seen it.

Mr. SHAYS. So it’s a pretty strong statement that you haven’t

seen it to the best of your knowledge.

Mr. LYLE. That’s right, to the best of my knowledge I haven’t

seen it this was in June 1998.

Mr. SHAYS. This includes 246,000 e-mails that slipped through,

and they were different personnel. Ira Magaziner, Betty Currie,

Bill Clinton, the list—Bruce Lindsey. Now, would you have heard

some of these names come through you as requested subpoenaed

information?

Mr. LYLE. I don’t recall what I’ve responded to in terms of subpoenas.

622

Mr. SHAYS. But lots of names of people, certainly more than just

a handful.

Mr. LYLE. The subpoenas that I responded to could include both

names and, you know, types of topics.

Mr. SHAYS. But lots of names, correct?

Mr. LYLE. I don’t know.

Mr. SHAYS. Lots of e-mails.

Mr. LYLE. I’m sorry?

Mr. SHAYS. You were requested to turn over e-mails, right, that

were in your system?

Mr. LYLE. Well, there again, there’s a couple of ways that you

proceed. Again, there’s the automated records management search

portion of the request which is coordinated by the counsel’s office,

and then, yes, you search your files, your e-mails, you search your

hard copies, you search what’s in your office.

Mr. SHAYS. But you had the central file system, correct? I mean,

you have the names of a lot of people in your system.

Mr. LYLE. In our Automated Records Management System, yes.

In the ARMS, there’s a good number of people in the ARMS system.

Mr. SHAYS. I’m just trying to get beyond the point of your own

little individual computer. You were in charge of the system.

Mr. LYLE. No, I think I understand what you’re trying to get.

Each person searches their space or their office or their documents

that are in their—and then a request is submitted for an automated records management search to be done. That request is generated out of the counsel’s office.

Mr. SHAYS. To you.

Mr. LYLE. No, not to me. It goes right into the IT people, information technology people, in the Automated Records Management

System.

Mr. SHAYS. But it’s fair for me to assume that you were aware,

because the White House kept, frankly, criticizing so many committees in Congress that we were requesting too much information on

lots of different names. So, I mean, you weren’t in the Dark Ages

on that. I mean, you must have heard complaints about all the emails that we wanted and all the records we wanted about so many

different people.

Mr. LYLE. That’s something that Mr. Heissner touched on earlier

in this hearing.

Mr. SHAYS. So you were aware of it.

Mr. LYLE. Yes.

Mr. SHAYS. So what I’m trying to establish is what you were

aware of and what you weren’t. So you knew that Congress was

looking at a lot of different people that worked in the White House

and wanted a lot of different records, and that’s one of your points,

too, it was a costly effort to comply with that.

Mr. LYLE. Yes, it was costly.

Mr. SHAYS. Besides having to fix the problem. But you weren’t

in the Dark Ages about that. I feel better about knowing that. But

what I don’t feel good about is that you would then make an assumption that I think is—blows my mind that some of these emails would not have been subpoenaed e-mails.

Mr. LYLE. Some of which e-mails?

623

Mr. SHAYS. Some of these lost e-mails.

Mr. LYLE. I don’t know what’s on the backup tapes. I don’t know

what was sought in the subpoenas. I have no basis to know.

Mr. SHAYS. You have a little basis. You have a basis that to correct the problem is going to cost about $600,000, that that was a

big job and involved a lot of people. And what I’m hearing you say

is that notwithstanding, you made an assumption that this didn’t

involve any subpoenaed records.

Mr. LYLE. No, I did not make an assumption. Two points. First, the reconstruction is not going to cost $600,000, it’s going to cost $8 to $10 million. The—— Mr. SHAYS. OK. I’m just going on the memos that you provided.

Mr. LYLE. That was an earlier statement of work that you’re referring to, and that was just a cost for an assessment on how to

fix it.

Mr. SHAYS. OK. So the problem is even bigger and involved a lot

more people.

Mr. LYLE. It’s going to take a long time and cost a lot of money.

We are working as quickly as we can.

Mr. SHAYS. I understand. Trust me on that.

Mr. LYLE. That’s the other portion. With respect to the subpoena

issue that you keep asking about, when I was briefed in April 1999

about the Letter D problem, we were discussing in that meeting,

OK, what has to happen and the subpoena problem.

Mr. SHAYS. You didn’t know about the Mail2 problem then?

Mr. LYLE. As I said, my most—my best recollection is that I

learned what I know most about the e-Mail2 project in the April

1999 meeting. And it was because it was—it served as a historical

framework as far as how to deal with this letter D issue. And during the course of those conversations, Mr. Lindsey, who I worked

for and who was my predecessor, had explained the process in

terms of, listen, we need to notify the counsel’s office, which is exactly what took place.

Mr. SHAYS. Why would we need to notify the counsel’s office?

Mr. LYLE. Because you had this anomaly.

Mr. SHAYS. Why would the counsel’s office have to be notified at

all?

Mr. LYLE. Because Counsel’s Office was responsible for responding to subpoenas.

Mr. SHAYS. So you did know there was a subpoena problem.

Mr. LYLE. I did not know—the e-Mail2 subpoena problem, as I

understood it based on my conversations, had been resolved prior

by Mr. Lindsey and Mr. Ruff. The letter D e-mail problem was a

new issue that had just come up. It just occurred. It was discovered

in April 1999. The same notification had to take place, and Mr.

Lindsey worked to make sure that that happened. On Office of Administration’s side what we needed to do is be sure that we had

all the data on the backup tapes for the compliance with the other

Federal Records Act.

Mr. SHAYS. Can I make a request, Mr. Chairman? This is the

last line of questioning. I would like more time afterwards.

Mr. BURTON. We’ll come back then. Let me just followup and ask

one quick question. When did the White House go to—before the

Appropriations Committee for the year 2000 budget?

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Mr. LYLE. When did we go?

Mr. BURTON. Yeah. What month was that?

Mr. LYLE. I don’t remember. It was in early 1999.

Mr. BURTON. It was in April, May, June?

Mr. LYLE. I believe it was in the February/March timeframe,

somewhere in there. I would have to look.

Mr. BURTON. But you knew about the second e-mail problem, and

you said that you were—— Mr. LYLE. I learned about that in April 1999.

Mr. BURTON. Kicking it up to Mr. Lindsey because you knew that

there was a subpoena, and that had to be given to him, he had to

be aware of that.

Mr. LYLE. I didn’t know about a particular subpoena.

Mr. BURTON. You knew there were subpoenas pertaining—you

knew about the previous subpoena on the previous e-mail problem.

Mr. LYLE. Certainly.

Mr. BURTON. You didn’t connect the two?

Mr. LYLE. I’m sorry?

Mr. BURTON. You didn’t connect the two, that the subpoena was

relevant to the second missing e-mails as well?

Mr. LYLE. I didn’t say that. I said in the context of discussing

in the April 1999 meeting, we were discussing the letter D issue,

we needed to make sure that information about that anomaly was

conveyed to counsel’s office because—— Mr. BURTON. I understand. But during this entire timeframe, you

were crossing out or they were crossing out information that was

going to be conveyed in the final document to the Appropriations

Committee about the need for funds for the missing e-mails, and

I just can’t understand how you could miss all this when you were

kicking things up to Mr. Lindsey, who was kicking them up to— to the chief counsel’s office at the White House.

Mr. LYLE. As I said, Mr. Burton, I have no recollection of having

seen these drafts in the February timeframe. I told you that earlier. I learned of them more recently when we were producing documents for this committee.

Mr. BURTON. Mr. Barr, do you have any further questions?

Mr. BARR. Just a few here if I could engage counsel just to colloquy or ask him a few questions.

Going back, counsel, to exhibit 61, which is the list of various

names and numbers of e-mails, the handwritten numbers, the larger numbers on the very left of those pages, again, there’s a number

for each name, and that would represent the total number of emails in that individual’s computer on that particular—and the day

of June 18th.

Mr. WILSON. Correct.

Mr. BARR. The number immediately under the user’s name would

be the number that was not captured as of that day.

Mr. WILSON. That’s also correct.

Mr. BARR. Thinking back, if counsel would, on counsel’s legal

training and understanding of the law, if you have, for example, as

at the top of page NGL 00309 that the gentleman from Pennsylvania referred to earlier, Mr. Erskine Bowles, where you have the

number of 1,108, which is 1,108 e-mails in Mr. Bowles’ system that

day, and 161, which would be the number that was not captured,

625

if, in fact, counsel had been advising that individual on that day

to comply with the subpoena that required all of those e-mails,

would he give Mr. Bowles an A because he was able to capture 90

percent?

Mr. WILSON. No, he would not.

Mr. BARR. In other words a subpoena, presuming it is lawful,

whether it is from an independent counsel, the Government Reform

and Oversight Committee, the Government Reform Committee of

this Congress, or the House Judiciary Committee requesting certain documents including e-mails, it does not presuppose nor does

it excuse that simply because a certain number of documents are

not captured that day, that they did not have to be produced or

they are not covered by the subpoena, correct?

Mr. WILSON. That’s correct. And just to fill this on that, it was

the understanding of the committee through representations made

by lawyers for the White House that we had received all information that was germane to our subpoenas. We had not at any time

been told that there was a universe of documents that had never

been searched for responsiveness to our subpoenas. We were laboring under a misapprehension at that time.

Mr. BARR. We now know that we have not been furnished full,

accurate and complete information pursuant to those lawful subpoenas. Is that correct?

Mr. WILSON. That is correct. We also know from not only this

document, but subsequent to the discovery of this document, or at

least the furnishing to the committee of this document, there have

been other problems presented to us, one in particular that implicates the entire Office of the Vice President, where information— and the extent is still not entirely clear—but information of the Office of the Vice President has not been searched for responsiveness

to committee subpoenas.

Mr. BARR. Is it also counsel’s understanding based on his knowledge of Federal law and the law that pertains to enforcement of

subpoenas that the cost of compliance with a subpoena is not a defense for failure to comply with that subpoena in whole or in part.

Is that correct?

Mr. WILSON. No, it is correct, yes. The cost should not be a factor.

Mr. BARR. I would urge the witnesses to review their understanding in light of some of the statements made earlier by some

other members of the committee in light of what counsel has just

said that when a subpoena is issued, whether it is by an independent counsel, a committee of the Congress or some other legal proceeding or judicial officer, that full compliance is presumed, required and will be enforced either by an order of a court or a finding of contempt or a case of obstruction of justice for subsequent

knowledge that a subpoena has not been honored.

The fact that there may be certain Federal laws that relate to

retention of certain records for archival purposes, that does not dispose of the issue. If, in fact, a subpoena has not been complied

with, if, in fact, as we now know, that the White House counsel,

the Office of Administration, and indeed probably the Department

of Justice knew that these subpoenas were not being complied

with, then subsequent action certainly is relevant inquiry for this

626

committee, notwithstanding the fact that there may be technical

compliance with the Presidential Records Act or the Federal

Records Act, for example, because these records are maintained in

some way, in some place, in some form for archival purposes, and

that is the heart of at least part of the reason why this committee

is very concerned about this.

The subpoenas have not been complied with. Apparently no efforts have been undertaken to secure compliance with those subpoenas, and the best that we are being told by this administration,

by this Department of Justice is that in 6 to 8 months maybe something will happen. That will not—and in my experience as a former

U.S. attorney, and I presume, counsel, in your experience as well

as an attorney, that certainly would not get one off the hook in a

legal proceeding, nor should it.

I commend you, Mr. Chairman, for holding these hearings, and

I know there will be further, because some very important principles regarding the rule of law and the prerogatives, the lawful

prerogatives of this committee, of the House impeachment and judiciary committees, the independent counsel and legal parties entitled to their day in court such as in the Alexander case have a

great deal at stake here in ensuring compliance with lawful subpoenas. We have not seen that in this case, and that’s very disturbing.

Mr. BURTON. Thank you, Mr. Barr.

Mr. Shays, did you have more questions?

Mr. SHAYS. Yes. Thank you.

Mr. Lyle, when Beth Nolan, the counsel of the President, testified on March 23rd, in her statement she said when the counsel to

the President Charles Ruff was told by OA—that’s your organization, before your time, in 1998, but OA is Office of Administration.

Mr. LYLE. OA, as I understand it, is Office of Administration.

Mr. SHAYS. When then counsel of the President Charles Ruff was

told by OA in 1998 that there were e-mails that may not have been

captured in a previous search because of a technical glitch—by the

way, I buy that as a technical glitch. I don’t debate that—he understood that OA would be collecting those e-mails so that any responsive e-mails that had not been produced could be produced. Now,

responsive e-mails means requests for information or subpoenaed

information.

Now, what Ms. Nolan is telling us is that Charles Ruff, the previous counsel, was told that all these e-mails would be provided,

and you’re hired later, and you’re not providing that information.

You’ve not providing the so-called responsive information. You are

not providing the information, and e-mails that were subpoenaed.

So it’s kind of like you both are like ships passing in the night

here. I mean, Mr. Ruff is saying you guys are going to provide it,

and you’re saying you made a decision that you saw this as an archive problem, not a subpoena problem, and therefore you decided

that you would focus on other issues.

Mr. LYLE. I cannot shed any light for you, Mr. Shays, on the

communications that took place between Mr. Ruff and Mr. Lindsey.

Mr. SHAYS. I understand that, but what I am just sharing with

you is the fact that Mr. Ruff was told, according to Ms. Nolan, and

she was under oath, that these e-mails had been captured, and

627

that they were—would be collected, and that all responsive emails—in other words, all the subpoenaed e-mails that hadn’t been

produced would be produced. So excuse me for, you know, just

being a little cynical. His argument is I was told it was going to

happen, you’re hired, and you don’t even know that there’s any

subpoena problem. And that’s relevant information, and I accept it

under the basis you’ve said it. But what am I supposed to think

up here as a Member of Congress when I know these were subpoenaed information, and it wasn’t provided, and Congress wasn’t told,

and Starr wasn’t told, and the courts weren’t told?

So, I guess we’ll just keep trying to figure out who hired Craig

Livingstone, and we’ll try to figure out who knew what when. And

I just wish someone would help us out.

I yield back.

Mr. HORN. Mr. Chairman, if I might on this question?

Mr. BURTON. Yes. The gentleman from California.

Mr. HORN. Gentlemen, I’m sorry I had to come in late, but it triggered me on the question of who hired Mr. Livingstone because I

asked that question, and Mr. Clinger, then the full chairman, sent

it to the Attorney General and made it very clear that one of our

witnesses which was counsel to the President had committed perjury. And so I wonder if any of you have any information on that.

I don’t think that this committee has ever received a reply from

the Department of Justice, and there’s no question, the question I

asked was, was it Vice President Gore, was it the First Lady, etc.

And I think they knew, and they lied. So I would like to see an

answer to Mr. Clinger’s letter to Mr. Burton at the time.

Mr. ZWERLING. I am advising my client to take the fifth amendment on that, Your Honor.

Mr. BURTON. Does the gentlemen have any more questions?

Mr. HORN. That’s it, because I’m tired of lies.

Mr. BURTON. Well, I want to thank you both for being so patient.

And we’ll now go to the next panel. Thank you very much for being

with us.

Mr. Raben, we’re glad that you’re with us. We’re sorry that you

had to wait so long. While you’re standing, would you take the

oath?

[Witness sworn.]

Mr. BURTON. Be seated.

Do you have an opening statement, Mr. Raben?

Mr. RABEN. Yes, sir I do. I’ll get to it right now.

Mr. BURTON. All right. Take your time.

Proceed, Mr. Raben.

STATEMENT OF ROBERT RABEN, ASSISTANT ATTORNEY

GENERAL FOR LEGISLATIVE AFFAIRS

Mr. RABEN. Thank you, sir. Mr. Chairman and members of the

committee, I am here today in response to your request by letter

of April 26th. As the committee understands, many of the questions

posed in the chairman’s letter of April 26th relate to matters and

activities in which I have had no personal involvement, but I have

prepared as best I can in the days since the chairman’s letter to

answer the committee’s questions consistent with the Department’s

and the public’s fundamental interest in effective law enforcement.

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More than a month ago, the Department’s Criminal Division, acting through the Campaign Finance Task Force, began an investigation into whether the Executive Office of the President complied

with subpoenas issued by the task force and this committee. In

conjunction with that inquiry, Criminal Division attorneys conferred with representatives from the Office of Independent Counsel

because the Office of Independent Counsel had commenced its own

investigation into nearly identical allegations surrounding the

White House e-mail retrieval issues.

Thereafter on March 22nd, the Office of Independent Counsel explicitly authorized the Department of Justice to continue its investigation pursuant to the Ethics in Government Act, which provides

in pertinent part that whenever a matter is in the prosecutorial jurisdiction of an independent counsel, the Department of Justice

shall suspend its investigation regarding such matter unless the

independent counsel agrees in writing that such an investigation

may be continued by the Department.

Since last month when the independent counsel authorized the

Department to continue its investigation of the e-mail retrieval

issues, the independent counsel and the Campaign Finance Task

Force have been working in coordination conducting many joint

interviews and reviewing numerous documents and other evidence.

This criminal investigation is active and ongoing.

Several of the questions in the chairman’s letter of April 26 relate explicitly to matters currently under review in this criminal investigation. As I have explained in my letters on this and other

committee requests, disclosure of matters involving an open investigation can compromise the efforts of prosecutors and FBI agents

to enforce Federal law. Experienced prosecutors tell me that it

would undermine law enforcement if defendants or prospective defendants learn the government’s factual or legal theories or what

information the government had gathered and from what sources.

Even neutral witnesses can have their recollections influenced or

confused by public disclosures of statements or speculation from

other witnesses.

The disclosure of raw or preliminary investigative information

that has yet to be fully investigated or substantiated can also damage unfairly the reputations of innocent individuals and mislead

the public about the underlying facts.

Finally, congressional inquiries into ongoing investigations create

the added danger of undermining the credibility of law enforcement

by injecting or appearing to inject political considerations into the

criminal justice process.

Therefore, at this time, the Department cannot comment about

any particular actions that have been undertaken or may be undertaken during the course of the ongoing investigation into the e-mail

retrieval issues. Nor can I comment on who at the White House or

Justice Department may have known what and when about the email retrieval issues as that is part of the ongoing criminal investigation. All I can do is convey the assurance of the Campaign Finance Task Force that the prosecutors working in coordination

with the Office of Independent Counsel will follow the facts and the

law wherever they may lead.

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You have also asked why the Department has not agreed to

make the Civil Division attorneys working on the Alexander case

available to the committee for interviews. My letter of April 12

identified several reasons why the Department declined the committee’s request. As I stated in that letter, the committee’s proposed inquiry relates directly to the ongoing criminal investigation

now under way by the Campaign Finance Task Force and the Office of Independent Counsel. In the Alexander case, the Department asked Judge Lamberth to defer consideration of the e-mail retrieval issues precisely because multiple investigations of the same

conduct and multiple interviews of the same witnesses would interfere with and undermine the ongoing criminal investigation.

Just last week Judge Lamberth agreed to continue deferring consideration of the e-mail retrieval issue. The court’s judgment that

this investigation should proceed before a public airing of these allegations also is applicable, in our view, to the committee’s request

to interview the Civil Division attorneys assigned to the Alexander

case. In the Department’s view, committee interviews of these attorneys would interfere with and may undermine the ongoing

criminal investigation.

In addition, the committee’s proposed inquiry of the lawyers in

the Civil Division runs counter to the Department’s view that line

attorneys and agents should not be required to answer questions

from Congress about the conduct of litigation or the pending criminal investigation. We try our hardest to ensure that the Department’s line attorneys and agents can exercise the independent

judgment essential to effective law enforcement and litigation. That

independent judgment is seriously threatened when Congress seeks

to question Department attorneys or agents about the actions they

took and the litigation decisions they made in an ongoing case.

There have been bipartisan objections to congressional inquiries

of Department line attorneys, even when those attorneys have been

sought to explain matters that have concluded. Former Attorneys

General Barr and Civiletti have argued against subpoenas to line

assistant U.S. attorneys as has former Acting Attorney General

Stuart Gerson. The American Bar Association has also argued

against it. The bipartisan National Association of Former U.S. Attorneys sent a letter to Assistant Attorney General Robinson last

month making the point that the effect on morale and the prosecutorial process would be devastating if career prosecutors were

called before Congress to explain and defend their decisions.

Similarly, Mr. Chairman, we are not in a position at this time

to answer your questions or provide documents about the recent

interviews of the President or Vice President conducted in furtherance of the ongoing campaign finance investigations. As I mentioned in my letter of December 30, 1999, the prosecutors and

agents assigned to the Campaign Finance Task Force continue to

pursue actively any and all criminal violations of the campaign finance laws. The questions asked of the President and Vice President, like those addressed to other recent witnesses, pertain to ongoing campaign finance criminal investigations. To date these investigations in which the President and Vice President have been

interviewed a total of 7 times have produced 24 prosecutions with

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maries and documents about recent interviews would risk compromising the ongoing investigations and undermine the confidentiality that is essential to effective law enforcement.

Mr. Chairman, I appreciate the committee’s oversight interest in

this matter, and I understand the committee’s frustration with the

Department’s pending matter policy, but I also know the committee

respects deeply the responsibilities of the Attorney General to enforce the law, and I know the committee has tried to avoid any action that would jeopardize the effectiveness of this or any other

criminal investigation. I continue to hope that we can work together to accommodate the committee’s legitimate oversight needs

while protecting the integrity of our law enforcement efforts. I will

continue to try to do everything I can to make that possible. If I

could have that introduced into the record.

Mr. BURTON. Without objection.

[The prepared statement of Mr. Raben follows:]

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Mr. RABEN. There are two small but important mistakes in the

written testimony, but not in the oral that I know that I just said.

In the first paragraph, on page 1 of the written, it says, ‘‘In the

few days since the Chairman’s letter was sent,’’ but it has been 7

days, and I appreciate your forewarning of the questions.

Also on page 4, the written testimony says that the investigation

has produced 22 prosecutions. I’m told this morning it’s been 24.

I appreciate that.

Mr. BURTON. Well, we were going to—did you want to—you want

to make some opening? You want to have some opening questions

on your side? We’re going to go to our counsel.

Mr. WAXMAN. Go ahead.

Mr. BURTON. We’ll go with our counsel. Let me just say as I yield

to our counsel, you talked about the record of the Attorney General

and the Justice Department. Charlie Trie, who fled the country and

was in China for some time, got virtually a slap on the wrist, no

jail time and a very small financial penalty. John Huang likewise

got some community service time, a slap on the wrist and a very

small financial penalty, and that’s the administration of justice

that we have seen.

When you cite all of these convictions and all of these people

being brought to justice, it rings hollow, at least with this chairman, because people who are very, very instrumental in bringing

millions of dollars into the DNC and the President’s reelection committee were never really brought to justice. They just got a little

slap on the wrist, and we think that’s—we think that’s an aberration of what justice is all about. We don’t think that’s what the administration of justice should be.

Go ahead, Mr. Wilson.

Mr. WILSON. Mr. Raben, good afternoon. I’ll try and be as brief

as possible on these questions, and indeed your opening statement

and the letter that was furnished to this committee early this

morning answered some of the questions that we were going to ask.

So thank you for providing the answers albeit at a late date.

We are aware that the Campaign Finance Task Force and the

Office of Independent Counsel are conducting a joint investigation,

and indeed in your opening statement you said that the OIC and

Justice Department have even conducted joint interviews of individuals. Do you know whether there’s ever been a joint investigation like this between the Department of Justice and any Office of

Independent Counsel?

Mr. RABEN. It’s a good question. I don’t know. I’ll find out for

you.

Mr. WILSON. The reason I asked, it’s one of the questions we

posed to you in our letter last week. We’re interested in knowing

whether it is appropriate to conduct such an investigation. Is it indeed appropriate for the Department of Justice and the Office of

Independent Counsel to engage in a collaborative effort?

Mr. RABEN. Thank you. It’s the view of the Department of Justice that we have the legal authority, and it is appropriate. I can’t

and wouldn’t speak for the independent counsel, but the independent counsel explicitly authorized the Department of Justice to pursue the investigation, and the authority under which that authorization was exercised was 28 USC 597(a).

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Mr. WILSON. I read your statement with interest, and I know 28

USC, section 597, and it allows any Office of Independent Counsel

to authorize the Department of Justice to investigate a matter, but

that’s a different issue than we’re facing today. It is certainly true

that the Office of Independent Counsel could authorize the Department of Justice to investigate the same matters that it itself is investigating. The statute provides that, but is it appropriate, is it indeed legal for the Department of Justice and the Office of Independent Counsel to engage in a collaborative effort?

Mr. RABEN. I think it’s a fair and interesting question. I can only

speak for one of the parties engaged, which is the Department of

Justice thinks it is appropriate to coordinate and has coordinated

with the OIC on this matter. I don’t know if joint—I’m not quibbling with you. I don’t know the joint investigation is a term of art.

I don’t—I’d be very hesitant to overcharacterize or undercharacterize, for that matter; that is, I don’t want to say anything inaccurate. To the extent—let me tell you the extent of my knowledge

is that we were—the Campaign Finance Task Force is coordinating

in a way that they think is appropriate with the independent counsel. Again, I can’t speak for the independent counsel.

I do know that Judge Lamberth has been hearing from the Campaign Finance Task Force. I don’t know, I assume he has been

hearing from the independent counsel, but again, I don’t know

about that prong, but Judge Lamberth himself has been hearing

from the Campaign Finance Task Force about the pace and substance of their investigation.

Mr. WILSON. I’ll put a request to you now that you provide an

answer to the committee as to whether it is indeed provided for in

the statute that there can be a collaborative effort. I don’t want to

get theoretical here. It’s my understanding that the Office of Independent Counsel and members of the Department of Justice are

sitting in the same room interviewing people at the same time, and

one concern is that undercuts the very nature of independence that

is in the title of independent counsel statute.

So that’s something perhaps we can’t resolve today, but if you

could provide for us the legal analysis that allows that to happen.

If you could tell us what the safeguards are that would insulate the

task force and this—and the independent counsel investigation

from political influence or supervision at the Department of Justice. What special safeguards have you built into this particular

collaborative effort?

[The information referred to follows:]

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Mr. RABEN. I can’t speak to every one of them because I don’t— the demands of my job are such that I can’t participate in every

conversation or every meeting on all the important things going on

at the Department of Justice all the time. That being said, I know

that the Department and the individuals who are charged with

doing the different components of what I—what we all know to be

a multifaceted issue here are careful to respect the lanes, and it is

not uncommon for the Department to find itself in a position where

in the normal course of representation of an agency, or in this case

Executive Office—— Mr. WILSON. I respect that. What I’m asking is, is there anything

special that’s been done in this particular case to set up a firewall?

Do you know of anything different in this case than any other case?

Mr. RABEN. I need more information to answer you properly because I haven’t participated in other cases, so I don’t know if this

one is different, and no one has said in this case we have to do it

unlike any other case. I can tell you what I witnessed, which is a

division, and it’s a division and a reminder that there are different

lanes, and that the divisions need to respect those lanes, and that

division, as I say, has been monitored by Judge Lamberth.

Mr. WILSON. I will ask if you would, please, in the not-too-distant

future, if you could provide for us the analysis of what has been

done, if anything. Perhaps it’s the same situation that’s been set

up for the task force. Maybe there’s nothing different, and if there

is nothing different, that’s the answer, and that’s acceptable in

terms of the answer.

On March 27, which is now, I guess, 5 weeks ago, the chairman

of the committee made a request to the Department of Justice to

appoint a special counsel to investigate the e-mail matter. As of

this date, there has been no response to the request, and now that

you’re here, perhaps you can provide us an official response if there

is one.

Mr. RABEN. Yes. The official response is that we continue to work

on it, that it’s a serious request, and that it’s being taken seriously.

At the risk of not being seen as a team player at the esteemed Department of Justice where I’m very happy to be employed, I would

have hoped that we could have provided an answer even to ourselves earlier than now. I know that we said in a letter to you of

April 12 that we’d get you an answer promptly, and I continue to

hope that it’s promptly, and that’s the best I can do.

Mr. WILSON. From the perspective of the committee, we have

asked this question because an awful lot has happened in the last

5 weeks.

Mr. RABEN. I’m reminded by folks, and clearly this is not on all

fours, but I’m reminded that under the then existing independent

counsel statute, the Department had 90 days to determine, but I

would fully hope that we would get you an answer long before 90

days.

Mr. WILSON. Let me—I’ll work into this slowly. Do you know

when the Justice—— Mr. BURTON. Excuse me. Let me just interrupt here. I don’t know

what kind of timeframe would be allowable, but we would certainly

hope it would be quicker than 90 days. In fact, it doesn’t seem like

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tice Department being on both sides of an issue. You have one division of the Justice Department on one side and another on the

other side. How can the Justice Department work against itself?

That’s the issue, and I don’t think that issue should take 90 days

or 30 days. We need to have an answer back, and the Attorney

General and her top aides over there ought to be able to sit down

and resolve this in a matter of a few hours.

Mr. RABEN. It’s not the Department of Justice working against

itself. I know that that characterization has been said before, but

there are, as I understand it, a group of career employees in the

Civil Division about whom allegations have been made. Allegations

became sufficient such that the Campaign Finance Task Force

thought it appropriate to open a criminal investigation. Once that

occurs, the ordinary course of business is to stay or defer that aspect of a civil litigation, in this case the Alexander case, which

might be implicated or interfere with the criminal investigation,

which we think takes primacy. We think that’s the most important

thing.

I appreciate the characterization that’s been made that it’s the

Department of Justice working against itself, but I have learned

that, in fact, it is not uncommon for—— Mr. BURTON. I want to make sure I understand. What you’re saying is the civil case is, in essence, being put on hold while the

criminal case proceeds?

Mr. RABEN. No, I don’t mean to say that, and if I did, I apologize.

Those aspects of the civil case, the Alexander litigation, which are

implicated by the criminal investigation are deferred, but they are

only deferred through the approval of Judge Lamberth. We can’t do

that on our own, but the Campaign Finance Task Force folks go

to the judge and engage him on the progress of the criminal investigation, and the judge makes a decision of what pace, what aspects

of the civil litigation should be deferred or not.

Mr. BURTON. But the request has been made that he defer action

on the civil case until the criminal case has been resolved. That’s

what they requested of the judge, right?

Mr. RABEN. I’m with you 92 percent of that, I think. I have to

go look at the filing again.

Mr. BURTON. In essence, what the Department of Justice is asking for is a deference of the civil case while they run out the clock

on the criminal case.

Mr. RABEN. They are asking for a deferral of those aspects of the

civil case. There are aspects of the Alexander case which precede.

There are aspects which we asked to defer, and the judge has

taken it——

Mr. BURTON. Taken it under advisement.

Mr. RABEN. Taken it under advisement, thank you.

Mr. WILSON. There are two real-world problems that have come

up, and maybe they are not of great significance at the end of the

day, but help me work through these. One, it has come to our attention that when the Mail2 problem was discovered, individuals at

the White House contacted a Department of Justice attorney

named Jason Baron, and we have no idea what that contact entailed, but the White House reached out to a Department of Justice

lawyer named Jason Baron. Yesterday, late in the afternoon, we

643

were provided documents by the White House that had been kept

from us subject to claims of privilege, and on one of the documents

there was the name Jason Baron and his telephone number.

Now, we have not had an opportunity to ask people what happened, and we’ll do that in the future, but we have been asking to

talk to Department of Justice attorneys, and you have very respectfully declined our requests and said, we cannot do that. I am wondering whether you know if the Department of Justice has or has

not authorized Mr. Baron to talk to anybody in the White House?

Mr. RABEN. I don’t know that.

Mr. WILSON. We would very much like you to find that out if you

could.

Mr. RABEN. Whether the Department has authorized Mr. Baron

to talk to anyone in the White House?

Mr. WILSON. Yes. It’s my understanding that Mr. Baron, who

may not be employed by the Department of Justice now, but falls

under the same constraints that you apply to us under your request for line attorneys to testify—we are prevented from having

line attorneys to talk to in this particular case, and yet we were

very surprised by a contemporaneous notation of Mr. Baron’s name

with his telephone number on top written by somebody who is employed by the White House.

We do not know whether there’s been a contact or not, but this

is one of the real-world problems that we face. We ask for a special

counsel because we’re concerned by the types of appearances and

problems that occur when the Department of Justice is investigating, first of all, its own lawyers, and second of all, people in the

White House counsel’s office. That’s one thing. I will return to that

slightly in a moment.

Second thing is documents were withheld from us temporarily by

the Department of Justice under claims of privilege. Do you know

whether the White House consulted with the Office of Legal Counsel regarding claims of privilege?

Mr. RABEN. I don’t have any information about that.

Mr. WILSON. That’s another question we would very much like

you to answer because in the past when the White House has decided to embark upon considering claims of executive privilege, as

has indeed happened in this particular case, the White House has

gone to the Office of Legal Counsel.

Now, this committee obviously would have a particular concern

with the White House going to the Department of Justice, which

is already on both sides of the same case, and getting a reading as

to whether the Department of Justice concurs with a claim of privilege, and this is another conflict that we’ve seen just in the last

week potentially.

So again, if you could provide an answer to that specific question.

Mr. RABEN. There’s two prongs to that. I’ll find out, and then I

have to find out what the restrictions are in revealing what I find

out. Help me out. What’s the conflict in—I don’t know that they

did, and I’ll try to find out, but what’s the conflict in the White

House asking about the legal aspects of asserting a privilege which

is the White House’s to assert, which I understand they didn’t assert?

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Mr. WILSON. I don’t want to be mysterious. Congress wants documents. Just as we would have liked to have had full searches of

all this universe of e-mails back 2 years ago and not have had to

wait all this time, Congress has asked for information, and the

White House decided to take an approach that would have denied

the committee access to certain documents. And one of the questions we would ask is whether the Department of Justice was at

all complicitous in preventing documents from coming to Congress.

That’s part of, again—— Mr. RABEN. They didn’t assert privilege, right? A person mentioned they were thinking about it?

Mr. WILSON. There was a delay. Documents were not produced

to us immediately. So we’d like to know whether the Department

of Justice was providing legal services. Did the Department of Justice provide legal service to the White House in a case that is already on two sides of the issue?

Mr. BURTON. Let me ask a question for clarification. The gentleman’s name that was in the margins of this document that was delivered to us and his phone number, is he a member of the Department of Justice?

Mr. WILSON. Mr. Baron was the Department of Justice attorney.

He apparently has been teaching at a university in Canada and is

on his way back to the United States. He’s going to be taking up

a position apparently in the U.S. Government. We do not know his

current—— Mr. BURTON. Is he on sabbatical from the Department of Justice

or on leave?

Mr. WILSON. We don’t know.

Mr. RABEN. I’ll find out his status, sir. I’m glad his name—I’m

not glad his name came up, but since his name has come up, I answered—I was told yesterday—you had asked me the last time I

was here the Civil Division attorneys that worked on the case, and

I ultimately was able to provide toward the end of that hearing a

list of four or five people. Apparently Mr. Baron is one of the attorneys who worked on the case. He was not—his name does not appear on the pleadings apparently.

Mr. BURTON. But he’s one of the attorneys that worked on the

civil case?

Mr. RABEN. Yes.

Mr. BURTON. Those documents that we received, were those regarding the civil case?

Mr. WILSON. The documents we’ve received appear to be documents that relate to members in the White House trying to find out

what’s happening in this matter right now. So it appears to be the

White House gathering information, and so we might say they are

doing their homework right now, and the simple way of putting it

is has the Department of Justice helped the White House do their

homework to prepare for these hearings? And we will be hearing

from former White House and current White House employees tomorrow. The simple question is has the Department of Justice, notwithstanding this potential conflict, helped the White House prepare for the hearings that we’re putting on right now?

Mr. RABEN. I have no knowledge of that. I have not—I have

stayed away from that, but I’ll find out.

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Mr. WILSON. If you could followup on that. That would be very

helpful.

Mr. RABEN. Yes.

Mr. WILSON. Just to stay on the line attorney policy for just a

moment, I worked at the Department of Justice. I’m extremely

sympathetic to the Department of Justice’s line attorney policy. As

I’ve pointed out to you and associates who are behind you, the committee has a conceptual problem with the way the Department has

handled the line attorney policy. We are well aware that line attorneys have been made available to Chairman Dingell’s subcommittee, in the Rocky Flats dispute. They’ve testified to us in Waco investigations we’ve conducted. Senator Specter recently had line attorneys testify before him in the Senate.

There appears to be a unifying factor in all of this, and that is

when the line attorneys have been able to tell a story that’s helpful

to the Department of Justice, they have been provided for questioning. Now, what I’d like, if you could help us with this, if you could

distinguish the situations where line attorneys have testified before

Chairman Dingell, before ourselves in the Waco investigation, before Senator Specter, just in the last few weeks from our request

to have access to line attorneys that we would like to talk to.

Mr. RABEN. I can convey to you the distinctions that are conveyed to me. The distinctions are either fact witness, subpoena, or

mistake. Those are the three basic exceptions—not exceptions, but

those are the three basic defenses or justifications, if you will, that

I have been able to discern distinguishing one matter from another.

I hear your neutral principle that we serve it up when it tells a

good story or not. I’d be eager to talk with you more about that.

And I don’t mean this flippantly, but I think we would serve up

a lot more if that were the neutral principle. That would be my

sense. I am more comfortable—as one of the spokespersons for the

Department and my name goes on a letter, I’m more comfortable

articulating the policy along the lines of the following: We try

mightily, and we do almost everything we can to prevent line attorneys from testifying in public or responding, especially during an

ongoing matter, to questions from Congress about how they are

handling a case, both the strategy and the substance of the case.

Sometimes those efforts are successful from our point of view, and

sometimes they are not.

Mr. WILSON. I appreciate that, and what you say makes sense to

us, but in this case we’re not looking for strategy in a case. We’re

not looking for the substantive material that’s being discussed in

the case. The conduct of the attorneys themselves is under investigation both by the Department of Justice and the independent

counsel and by this committee.

Let me just try and at least clarify one thing that’s been now outstanding for a year and a half, and that is it was represented to

us by the very colleague that’s sitting behind you 18 months ago

that the principle that the Department of Justice was standing on

is that if line attorneys had talked to the press, that was a deciding

factor in making them available to testify before Congress. That

was not one of the three factors you just cited a moment ago, and

I would like to know and the committee would like to know finally

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whether that is indeed a principle that you hold out as having any

relevance whatsoever to your decision.

Mr. RABEN. Oh, you asked an easier question than I thought you

were going to ask. Does it have any relevance? I think that every— I think that we treat every accommodation and every committee as

sui generis. The use of stare decisis in these cases has confused me

from the moment I got to the Department. In that sense, it’s relevant. I have disagreements with my superiors and people with

whom I work and myself on any number of matters, small and

large, and I think I need to continue to learn more about this one,

but I would go so far to say it would be a relevant factor, but I

wouldn’t consider it dispositive.

Mr. WILSON. Let me turn to another subject very quickly, if we

may. At the last hearing at which you testified, we had asked for

your assistance in providing the names of Civil Division lawyers

who had worked on the e-mail matter in the Alexander case, and

you have provided those names, and we are grateful for that. Can

you tell us the lawyers who actually participated in preparing the

affidavit submitted by Daniel Barry in the Alexander case?

Mr. RABEN. Not yet. I can’t yet. That is a key fact. I presume it’s

a key fact. It’s a fact in the ongoing criminal investigation. Who

said what to whom and when and whether or not there was anything inappropriate in consultation or action vis-a-vis that affidavit

is a fact that is being vetted by the criminal investigation.

Mr. BURTON. You know who it is?

Mr. RABEN. No, I don’t. Because I knew I could not speak about

it, there was no reason for me to inquire.

Mr. BURTON. How long ago has it been since we asked for that?

About a month. Unless it’s covered by grand jury or 6(e) or an ongoing investigation, we would like to know who that was or who

they were. Can you speed that up for us? It’s been a month.

Mr. RABEN. I can ask the criminal investigation to speed their

investigation up. Absolutely.

Mr. BURTON. It can’t be that hard to find out who participated

in helping with that document.

Mr. RABEN. You’re right, but I wouldn’t be able to reveal that information even if I knew it until the criminal investigation is complete.

Mr. WILSON. This morning we received a letter from the Attorney

General that was helpful in explaining in very general terms a decision that has been made. The committee has subpoenaed recent

interviews of the President and the Vice President, and this morning we learned in a letter from Attorney General Reno to the chairman that the Department of Justice would not provide those—the

interview summaries of those two interviews, and I’d like to—we

understand the rationale of the letter. We understand your basis.

However, the first question is, is it true to say that everything in

those interviews pertains to ongoing cases?

Mr. RABEN. I don’t know. I don’t know. I presume that is—— Mr. WILSON. I don’t think that’s answered in the letter, and I

don’t think it’s answered in your statement, so it won’t help to look

back. If you could answer that question as well. What you are representing to us is that we cannot have these interview summaries.

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quests from the Department of Justice to not interfere with ongoing investigations. In the Johnny Chung hearing we kept names off

of the table. In the Trie hearings, in the Huang hearings we did

not ask certain questions because we were requested not to, and we

have been respectful of the 6(e) policy, and we have been respectful

of ongoing investigations.

So simply put, the question is if there is material that does not

pertain to ongoing investigations, then we should at least have an

expectation to receive that information.

Mr. RABEN. Right. I can confirm that the interviews were conducted in furtherance of an ongoing investigation. You know that,

but you’re asking a more nuanced question, if there are 2, 3, 4, 5,

8, 9, 10 questions that are clearly relevant to a closed investigation?

Mr. WILSON. Closed or not open. I’ll give you a specific example

because it helps explain what I’m saying. The committee has been

publicly very critical and the chairman has made many statements

about the failure of the task force to ask the Vice President about

the Hsi Lai temple, Buddhist fundraiser. Many, many times the

chairman has said not one single question was asked of the Vice

President. It is our understanding that questions were asked of the

Vice President at his recent interview about the Buddhist temple

fundraiser.

Now, we have been told that the Vice President is not under investigation. There has already been a prosecution of Maria Hsia.

It’s difficult for us to understand what is ongoing about this investigation unless you were to try and say that it was the contempt

prosecution of the nuns or something else, but there appears to be

nothing ongoing. Indeed it would be manifestly unfair to question

somebody after the prosecution of Maria Hsia if this issue was still

ongoing. So what we don’t understand is what is off the table, what

is ongoing about the Buddhist temple fundraiser?

Mr. RABEN. Right. You’ve been told in a variety of fora orally and

in letters that the Campaign Finance Task Force is pursuing ongoing investigations, and that’s a dynamic concept. Things close, and

they learn new information, as would be the case, I assume, in

many prosecutions. That may reopen something.

Mr. WILSON. Fair enough.

Mr. RABEN. I recognize that the independent counsel statute is

done, but you can learn information from a witness that leads you

to a new line of inquiry, and I think—the Campaign Finance Task

Force, I avoid asking too many questions of them. I don’t want to

politicize what they are doing either. That’s a risk that I have to

throw into the mix, but they remind me that they have interviewed

the President and Vice President several times, and they have

asked, they say, a lot of questions.

Mr. WILSON. Recognizing that investigations are dynamic, they

close, they open, and that’s a rationale for a prosecutor questioning

somebody else, I’ll ask you the specific question, has the investigation of the Vice President been reopened in the Hsi Lai temple

matter?

Mr. RABEN. I don’t know.

Mr. WILSON. Is it because you’re not able to tell us, or you don’t

know?

648

Mr. RABEN. The latter, I don’t know.

Mr. BARR. Excuse me, if I could, counselor.

Something is coming to my mind called deliberate ignorance.

What I don’t understand here is you’re saying, gee, I don’t want to

ask questions because I don’t want to interject politics into it. How

would your asking a question, an employee, an official of the Clinton Department of Justice, inquiring into the status of an investigation of another attorney in the Clinton Department of Justice

politicize something?

Mr. RABEN. A political appointee confirmed by the Senate?

Mr. BARR. You just said a few moments ago that you don’t ask

too many questions because you don’t want to interject politics into

it.

Mr. RABEN. You want to be very careful about ongoing criminal

investigations.

Mr. BARR. How could you possibly interject politics into one Department of Justice official inquiring of another Justice Department official?

Mr. RABEN. A political appointee asking questions of a career— of a line attorney, you don’t think that has an inherent—— Mr. BARR. I think there’s a lot of politics with this administration, but this is the first time that I’ve heard that used as a defense

to finding out information and transmitting information to Congress by somebody within the administration. I think it’s thoroughly politicized.

Mr. RABEN. Your characterization of a defense is interesting. I

didn’t assert it as a defense to anything. I said it’s one of the considerations I have. I have to prepare myself and do prepare myself

and try to prepare myself for your very valid questions.

Mr. BARR. He just asked a very valid question, and you said, I

don’t know.

Mr. RABEN. Right. I don’t know.

Mr. BARR. Apparently you haven’t—I think that was a very relevant question, and certainly the answer to it is not going to compromise any investigation, just asking is the investigation still

open.

Mr. RABEN. I don’t know. I can ask. If we can communicate that

to you, we will.

Mr. BARR. It requires you to ask a question, and you seem to be

even hesitant to ask questions of your people at the Department of

Justice. That’s what I don’t understand.

Mr. RABEN. You’ve asked me to ask a question. I will ask that

question.

Mr. BURTON. The chief counsel’s time has expired. We have two

or three votes on the floor. We will stand in recess at the fall of

the gavel, at which time Mr. Waxman will have some time.

[Recess.]

Mr. BURTON. Mr. Raben, we apologize once again for the timeframe. We had four votes on the House floor. We will now yield to

Mr. Waxman for his time.

Mr. WAXMAN. Thank you, Mr. Chairman.

Mr. Raben, the chairman has criticized the Justice Department

for not allowing our committee to talk to line attorneys working in

the Civil Division about the Alexander case. That is the case

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brought by Judicial Watch concerning FBI files that were provided

to the White House. The Department has responded quite reasonably, I believe, that it has a clear and consistent policy of not providing the line attorneys to Congress to answer questions about

Department litigation, particularly when the litigation is still ongoing.

Now, the committee could subpoena those same line attorneys

and force them to come up here and testify. The issue, however, is

not whether we have the power to do that, but whether that would

be a wise, prudent exercise of our subpoena power.

It may be helpful for us to consider an affidavit filed by Robert

J. Conrad, Jr., the head of the Department’s Campaign Finance

Task Force in the Alexander case, and I’d ask unanimous consent

that this affidavit be part of the record.

Mr. BURTON. Without objection.

Mr. WAXMAN. In that affidavit, signed on March 23 of this year,

Mr. Conrad notified the court that the task force had launched a

criminal investigation into the missing e-mails, and that he asked

a court to postpone any inquiry into the e-mails until the task force

had concluded its investigation. Mr. Conrad stated emphatically

that allowing civil attorneys to investigate the e-mail problem,

‘‘would interfere with and potentially compromise the task force’s

own investigation of the pending allegations.’’ Now, the chairman has suggested that this was simply a ploy to

prevent the court from looking into the e-mail problem. He’s free

to make whatever allegations he wants, but let me point out that

the Office of Independent Counsel Robert Ray supported Mr.

Conrad’s request. Mr. Conrad says just that in paragraph 10 of his

affidavit. Once more, the judge in Alexander, Royce Lamberth, who

is not known to be particularly partial to the White House, agreed

with Mr. Conrad’s request, so apparently the Department’s task

force, the Office of Independent Counsel, and Judge Royce

Lamberth all agree on one thing, that the Department’s Civil Division line attorneys should refrain from investigating the e-mail

matter further until a criminal investigation is complete.

By the way, all three of these people, Mr. Conrad, Independent

Counsel Ray and Judge Lamberth, are all in on this conspiracy to

protect the White House. This is perhaps one of the most remarkable conspiracies in the history of the Republic.

Now, the chairman can subpoena these line attorneys and insist

that they discuss their e-mail investigations before this committee,

but if he does so, he is going against a determination made by the

Department’s task force, the independent counsel and Judge

Lamberth that public testimony by those same Civil Division attorneys about their e-mail investigation would compromise the criminal investigation. Given those circumstances, I think it would be

inappropriate and imprudent to demand that those line attorneys

appear before our committee to discuss their activities in the Alexander case. I wanted to put that view on the record and have that

out there.

Chairman Burton recently subpoenaed the Department of Justice

for interview summaries. These are known as FBI 302s of dozens

of interviews concerning the DOJ’s campaign finance investigation.

My understanding is the Department has given our committee acVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00657 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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cess to these FBI interview notes when the Department considered

its investigation to be closed. Is that correct?

Mr. RABEN. Yes.

Mr. WAXMAN. All of the interview summaries requested by

Chairman Burton involved investigation of Democrats. However, I

understand that the Justice Department’s campaign finance investigation has examined allegations relating to both Democratic and

Republican fundraising practices; is that correct?

Mr. RABEN. I don’t have independent knowledge of that. I have

read accounts of those. I presume that to be true.

Mr. WAXMAN. Some investigations into Republican practices are

also closed investigations. If the committee requested copies of the

FBI interviews relating to these closed investigations, is there any

reason why the Department could not provide copies of the interview notes?

Mr. RABEN. Our policy for the provision of 302s has been that the

302 should be a summary of a closed case, and it should be a request of the committee, and then we would redact for the normal

6(e) and privacy redactions. If there are any others, I’ll let you

know, but that’s the basic policy.

Mr. WAXMAN. There have been serious allegations relating to the

fundraising practices of former national committee head Haley

Barbour. In fact, some of the most serious allegations involving foreign campaign money in the 1996 election concern Haley Barbour

and the National Policy Forum. According to these allegations, Mr.

Barbour solicited over $1 million in foreign money from a Hong

Kong businessman named Ambrous Young for an entity called the

National Policy Forum, which was an arm of the Republican National Committee. These funds were then used in 1994 congressional races around the country. According to press accounts and

other sources, individuals reportedly with knowledge relevant to

the Haley Barbour allegations include Haley Barbour and Ambrous

Tung Young, Benton Becker, Richard Richards, Mark Braden, Steven Richards, David Norcross, Michael Baroody, Fred Volcansek,

Donald Fierce, Scott Reed, Daniel Denning, Henry Barbour, JoAnne Coe, Kevin Kellum, John Bolton, Jay Benning, Steven S.

Walker, Jr., Ed Rogers and Kirk Blalock. Mr. Raben, will you provide the committee with summaries of any FBI and DOJ interviews

with these individuals as well as any other FBI and DOJ interviews with witnesses with knowledge related to allegations that

Republicans raised illegal contributions?

Mr. RABEN. We respond to these requests in a nonpartisan way.

At the request of the committee, we will provide 302s of closed investigations redacted, as I said, for 6(e) and privacy, yes, sir.

Mr. WAXMAN. Another area that I have repeatedly asked——

Mr. RABEN. I should probably clarify that so as not to mislead

you. It needs to be at the request of the committee.

Mr. WAXMAN. If the committee has requested the 302 interviews

from you of the closed cases for Democratic campaign questions,

then I see no reason why this committee shouldn’t also request of

you the 302s of the interviews relating to closed investigations of

the Republican National Committee, Mr. Haley Barbour, and those

that I mentioned.

651

Mr. Chairman, I would like to ask you to join me in requesting

the DOJ provide the committee with these interview summaries.

Mr. BURTON. I just was made aware of the request by the ranking minority member, and I haven’t had a chance to check with the

parliamentarian about the justification of whether or not we should

go ahead with this, and I will be happy to do that.

Mr. WAXMAN. Well, Mr. Chairman, it’s not a question for the parliamentarian. It’s a question for this committee. This committee

has routinely asked for the 302s when there was an investigation

of Democratic potential finance abuses, and when the Justice Department closed the cases, you asked that we get those 302s because we wanted to evaluate how they’ve acted. There have been

investigations of Republicans, and these cases have been closed,

and we ought to get the 302s from those cases as well. There’s no

difference, and there’s no rationale that would say that this committee would want to get the 302s for what the campaign finance

investigation did for some of these Democratic accusations. When

there are accusations against Republicans, we ought to get those

documents as well.

Mr. Raben, another area I repeatedly asked the committee to investigate are allegations made by Texas businessman Peter

Cloeren regarding the 1996 campaign and Republican candidate

Brian Babin. According to these allegations, Majority Whip Tom

DeLay and Mr. Babin knowingly participated in a scheme to funnel

illegal conduit contributions to Mr. Babin’s campaign through vehicles that include an entity known as Triad Management.

The DeLay-Babin allegations are also some of the most serious

allegations that have been made relating to conduit contributions

in the 1996 campaign. In this case there is specific and credible

evidence that a senior Republican Member of Congress and a Republican congressional candidate knowingly participated in a

scheme to funnel illegal conduit contributions. According to media

accounts and information gathered by my staff’s investigation of

these allegations, individuals who purportedly have knowledge relevant to the DeLay-Babin allegations include Peter Cloeren, Brian

Babin, Representative DeLay, Robert Mills, Paul Peveto, Mike

Lucia, Gail Averyt, Robert and Dawn Cone, Floyd and Anne

Coates, Karen Malenick and Walter Whetsell.

Mr. Raben, will you provide the committee the interview summaries for any interview DOJ and FBI conducted of these and

other individuals regarding the DeLay-Babin allegations?

Mr. RABEN. As I said, sir, our policy is at the request of the committee, we will provide 302s for closed investigations redacted for

privacy in 6(e).

Mr. WAXMAN. Every time I’ve raised this issue for our committee

to investigate it, the chairman has said this issue has been investigated by the Department of Justice, and they closed the case. So

I would like to ask the chairman if he would join me in requesting

that DOG provide the committee with these summaries of any

interviews with these individuals regarding the DeLay-Babin allegations.

Mr. RABEN. We’ve been called many things, sir, but not DOG.

Mr. WAXMAN. After a while even a J becomes a G with my

speech impediment. I’m hopeful.

652

Obviously discussions are going on that we can get these documents. There’s no reason not to. We ought to get the documents

from you for our committee to know what kind of job Justice Department has been doing investigating allegations of campaign finance abuses. And I would hope, Mr. Chairman, that we can have

an agreement on this. If not——

Mr. BURTON. Give me a second.

I’ve talked to the staff about this. We have, according to the staff,

a large number of 302s outstanding, and if we agree to this, the

302s relating to Peter Cloeren and Haley Barbour, we want the

Justice Department to understand that we want all of the 302 outstanding document requests that we’re talking about given to us

along with these, and if that’s agreed to, how many—we should

get—we’ve actually asked for those sometime back, but we should

be getting those if not simultaneously, before we get these, and if

we get that agreement from the Justice Department, I have no

problem in joining with you.

Mr. WAXMAN. I think the Justice Department ought to give us

all—our committee on both sides—the 302s of any cases that are

closed. That has been their policy. If you have requests out, you

ought to get your requests satisfied, and we ought to get our requests satisfied, and we ought to have it for our committee’s documents so we can evaluate the job the Justice Department has done

in this regard. There is a distinction between closed and open

cases.

Mr. BURTON. I understand. The open cases—the one thing that

concerns me about the 302s is we believe, Mr. Waxman, that

there’s some politicization of the Justice Department, as you know.

You may not agree with that, we do, and as a result, we believe

that some of the cases may be kept open so we cannot get the 302s.

Now, that’s one of the major concerns that we have.

I don’t think we have any big objection to you getting these 302s,

but what we want to do is get the 302s that we’ve requested, and

if we can get that, since we’ve requested it some time ago, then I

think we can work this out.

Mr. Waxman, we’re talking not only about 302s, but other subpoenaed documents we requested from the Justice Department that

the Justice Department has not given us. I mean, there’s a whole

host of things, 302s, documents that we’ve requested, the La Bella

and Freeh memos which we have never received, and we don’t understand why in the world there should be a——

Mr. WAXMAN. If you’ll excuse me, Mr. Raben. This committee has

asked for 302s from the Justice Department on cases that have

been closed. The Justice Department has furnished 302s on some

of those cases. The majority on the committee is asking for additional 302s for closed cases. We’re asking for additional—we’re asking for 302s on the cases that I mentioned.

Now, the committee majority may be asking for other documents

as well that you may or may not be able to give them for one reason or another. That you have to deal with the committee majority

on. But for the 302s on cases that are closed, the Republicans

ought to get what they’ve requested and we ought to get what

we’ve requested. And, Mr. Chairman, I would like you to join with

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me in making that demand of the Justice Department at this hearing.

Mr. BURTON. The problem that we have—and I have no objection, like I said, to getting these 302s. But when the 302 is requested—for instance, on former Congressman Solomon, that 302

was brought over to us in 1 day. Other 302s that we requested

have been languishing for months and months and we have not received them. And so what we want to do is make sure that the documents and the 302s that we requested we get immediately. And

we’ll go along with the 302s that you request. They can get them

to you as quickly as they want to. But we want the documents

we’ve subpoenaed and the documents we requested in the form of

302s as well.

Mr. WAXMAN. Let me join with you in making a joint request of

the Justice Department that you give us all the 302s that we’re

asking for to which we’re entitled and that they all come in together. And that if the chairman is concerned that we’ll get ours

and they won’t get theirs, let’s make a request that you give them

all to us as quickly as possible.

Mr. BURTON. Why don’t we do this? If you gentleman would

yield—if the gentleman would yield, there is no motion on the floor.

If the gentleman would yield, why don’t we issue a subpoena for

the document—for the 302s that you have requested and in that

subpoena we will request or we will issue a subpoena that includes

the documents that we have requested and the 302s that we have

requested. That way, everything will be in one subpoena. That way,

you’ll get what you want, and we’ll get what we want. Do you have

any objection to that?

Mr. WAXMAN. Mr. Chairman, I think we have the makings of an

agreement. I just want to clarify that what we want in the subpoena are the names that I read with regard to the Haley Barbour

allegations and the Cloeren allegations, all of those, and you have

the list we’ve given you, of those cases. And so all of those names

ought to be subpoenaed for 302s that the Justice Department, FBI

would have. If you want to add to that subpoena other documents,

I have no problem with that.

Mr. BURTON. Well, what we want to do is make sure that all documents that we have previously subpoenaed, all 302s that we’ve requested and subpoenaed in addition to what you’ve requested here

today, all be given to us in a timely fashion and that we don’t

want—and this has to be spelled out so Justice understands it, we

don’t want the 302s for Republicans given to the Democrat minority before we get the documents that we’ve requested subpoenaed

in the past. Simultaneously, that’s fine. But we don’t want this favoritism shown one way or the other.

Mr. WAXMAN. Mr. Chairman, that’s agreeable with us.

Mr. BURTON. How about in the subpoena it be specified that all

the documents be given jointly to both the majority and minority

staff simultaneously?

Mr. WAXMAN. That’s reasonable.

Mr. RABEN. Sir, I——

Mr. BURTON. If you would just hold for just a second here. Is

there—I actually don’t even need a motion, but if you care to make

a motion.

654

Mr. WAXMAN. Well, Mr. Chairman, but based on the

agreement—— Mr. BURTON. They said a motion is not necessary.

Mr. WAXMAN. Based on our discussion here we have given and

we will submit on the record a list to you.

Mr. BURTON. We have a list.

Mr. WAXMAN. You have the list.

Mr. BURTON. The list is a matter of record. We will submit the

list for the record today so that there’s no doubt today but what

it consists of. So it will be a part of the record. It will be in there

today.

Mr. WAXMAN. Mr. Chairman, I want to thank you very much for

this agreement. And we will go along with your request.

Mr. BURTON. The subpoena in detail will be issued and we will

consult with both the majority and minority counsels to make sure

that correspondence going along with the subpoena is detailed thoroughly so there’s no misunderstanding about that.

Mr. BARR. I would like unanimous consent that the record reflect

that I object to this procedure.

Mr. BURTON. The record shall reflect that.

Is there further discussion? Mr. Waxman you still have time.

Mr. WAXMAN. I still have time, and I’ll yield to my members who

want to ask Mr. Raben some questions. Otherwise, I think members who have come—— Mr. RABEN. May I, sir, say what I have been trying to say? I

would be eager to work with you as we have tried to work in the

past to be responsive to all of the requests. If I heard part of your

agreement to be that nothing would be produced until everything

that was producible was produced, if I heard that to be the case,

then I would need clarification on that. That would be inconsistent

with what I think is a relatively healthy protocol that we have

been able to work out with the majority which prioritizes among

the list of documents and 302s they want.

Now, we have not, for a variety of production reasons, been able

to meet the priorities jot and tittle, but the priorities have been

useful, I understood, for both the committee and for us. And I

would hope that we would—among the cohort of materials that

you’re going to identify in this subpoena that we would hold open

the opportunity to talk with you about that.

Mr. WAXMAN. Let me say on our part we’ll talk to the chairman

about that and decide how we’re going to proceed.

Mr. BURTON. OK. The thing that Justice needs to know, though,

is that we are adamant about documents that have been previously

subpoenaed and requested that we have not received. And if we’re

going to—as we’ve agreed to, we’re going to ask for these 302s in

a subpoena for the Democrat minority. We want to make sure that

the Justice Department gives us the documents that we are entitled to—legally entitled to that we have not yet received in accordance with the subpoena. You will convey that to them.

Do you have any more comments?

Mr. WAXMAN. I have some time if anybody wants me to yield. If

not, I yield back the time.

Mr. BURTON. The gentleman yields back the balance of his time.

Mr. OSE. Mr. Chairman, down here amongst the——

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Mr. BURTON. Mr. Ose.

Mr. OSE [continuing]. Kiddie table. Thank you. Did I understand

the comments from this gentleman to be that we would not receive

anything until we received everything?

Mr. BURTON. It was my understanding—and, of course, this is

something that was sprung on us very late in the day here. It was

my understanding that there might be a rolling production of these

things, but the minority and majority together would make sure

that they were given in a timely fashion and in a fair and equitable

way.

Mr. OSE. Are we going to have a date certain, a date certain by

which these things will be produced?

Mr. BURTON. We will put a date certain on the subpoena. I think

that’s something that should be done. But it has to be in a fairly

reasonable period because we’re talking about a substantial number of 302s.

Is there further discussion? Any questions or any comments from

any members?

I apologize for hauling everybody in here, but we thought we

were going to have a procedural vote, and we didn’t want it to be

biased.

Is there further discussion to come before the committee today?

Mr. Raben, did I get that right?

Mr. RABEN. No, Raben.

Mr. BURTON. I have a heck of a time with that. We would like

to meet with you or somebody from the Justice Department—you

have further questions, Mr. Barr?

Mr. BARR. I do Mr. Chairman.

Mr. BURTON. Mr. Barr, you’re recognized for 5 minutes.

Mr. BARR. Mr. Raben, with regard to your statement—I think it

was contained in your April 24th letter—that, ‘‘no limits were imposed on the subject matter of the Campaign Financing Task

Force’s interviews of the President and Vice President.’’ Where did

that information come from?

Mr. RABEN. Where did the information that no limits were imposed come from?

Mr. BARR. Yes. What’s your basis for making that statement?

Mr. RABEN. That letter was written in part with help from the

Campaign Finance Task Force, and the basis for that statement is

that it’s the truth. That—I’m sorry. Let me start again. Let me

start again.

We’ve had a subsequent correspondence after that letter. When

we got a letter from the chairman on April 28th pointing out confusion about that statement, I agreed with the chairman that the

statement is inconsistent with the factual evidence that we provided with that letter. That is letter—an exchange of letters between I believe it’s the Campaign Finance Task Force and counsel

to the President and Vice President in which there appears to be

an agreement on the subject matter for that set of interviews.

When I looked at that in response to the chairman’s response to

my letter, I agreed with him that that is a record that seems to

limit the questioning. I think the proper statement—and had I to

do it over again, I would have said that there was—we have no inVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00663 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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formation, we have no evidence of an imposed limitation, that is,

from outside the Campaign Finance Task Force.

I have the Attorney General saying on the record in a letter to

the chairman March 21st that she has—‘‘I have repeatedly urged

the task force to follow the evidence wherever it leads.’’ That’s the

closest sense of a statement from her that I have with respect to

her involvement. But what I should have written and what is accurate is that we have no—I have no evidence of an imposed limitation on the task force.

Mr. BARR. There were limitations on their questioning of the

President and Vice President.

Mr. RABEN. The farthest I go on that is they seem to have engaged in an agreement—a voluntary agreement with counsel about

the subject matter of that set of interviews, and we have records

of that which we provided. And if there are more, I’ve asked people

to redouble and see did we miss something given my too small view

of what records means in that case. And I am told—I’ve never prosecuted, I know you have, but I have never prosecuted—that it is

not uncommon for prosecutors to consult with counsel for witnesses

or defense about the range of questioning that might come. But, as

I say, I have no sense that there was an imposed limitation from

elsewhere in the department or elsewhere.

Mr. BARR. For example, there were no—at no point has the

President been asked a single question about James Riady, John

Huang or Charlie Trie.

Mr. RABEN. I don’t know that I know that.

Mr. BARR. That wasn’t a question. It’s a statement. The President was not asked. Was this just——

Mr. RABEN. The President wasn’t asked in certain interviews

that you’ve seen the 302s from.

Mr. BARR. That is true, too.

Mr. RABEN. But the President and the Vice President have been

interviewed a total of seven times, and I don’t know what the subject matter was of the last sequence.

Mr. BARR. Charles La Bella has also said that it was the Attorney General’s decision that the interviews would be—I think the

word was ‘‘focused,’’ which means limited.

Mr. RABEN. Yeah. I don’t know what he was referring to. He

may—I read that as well. He may have been referring to the voluntary agreements that were entered into by the Campaign Finance Task Force and counsel for the President in those interviews.

I don’t know. I know that the President—that the Attorney General

has written to you, to the committee, ‘‘I have repeatedly urged the

task force to follow the evidence wherever it leads.’’

Mr. BARR. It may not be uncommon for prosecutors and attorneys for defendants to—or for deponents to have an agreement beforehand about certain areas, although it would be uncommon for

prosecutors to simply not go into fruitful areas of inquiry. That certainly is not the case.

It is also very common that if there is an agreement between a

prosecutor and the attorneys for a witness to limit the area, the

prosecutor is going to get something in return for it. I mean, good

prosecutors don’t just go in and say, oh, please limit the areas that

657

I can question you on. They want to get something in return, and

they then reduce that to writing.

Were either of those things done in this case when the decisions

were made, as they apparently were, to limit or focus—whatever

word you want to use—or agree to go into only certain areas? One,

what did the prosecutors get in return for it, that concession on

their part? Because that is a concession on the part of a prosecutor

not to go into certain areas of questioning. Was it reduced to writing?

Mr. RABEN. Two parts. You have prosecuted. I have not. I can’t

speak to the strategy which sounds——

Mr. BARR. I’m just asking two factual questions.

Mr. RABEN. OK. I may have misunderstood your question. But

your premise was that give and take, that it’s a bargain——

Mr. BARR. You don’t have to respond to the premise. That’s my

premise. What I would appreciate you responding to is the two

questions.

Mr. RABEN. OK. I only remember one. I have one question. You

have to tell me what the other is. The question that I know is, that

I hear you asking, is there documentation or evidence of such an

agreement. The only thing which I am aware is what we provided,

the exchange of letters that seems to define the categories for that

interview.

Mr. BARR. Those letters we have. There are no other letters.

Mr. RABEN. Yes. Last night—last night, after rereading the

chairman’s letter of April 28th—and, as I said, I agreed with him,

and I have asked staff and relevant Campaign Finance Task Force

people to look again and see if we underinterpreted the request the

first time around.

Mr. BARR. Will you be able—we have another hearing—another

day of hearing on this subject matter tomorrow.

Mr. BURTON. We do.

Mr. BARR. Could the chairman direct that we receive a final, definitive, absolute answer to that question tomorrow at least?

Mr. RABEN. Am I directed?

Mr. BURTON. I can make that request. Is there a ball bat in the

House? Maybe I can make sure I get it.

Mr. RABEN. Is there a what in the House?

Mr. BURTON. The request that he’s talking about.

Mr. RABEN. I just didn’t hear what you said, I’m sorry.

I’ll direct it ASAP. I think it’s very important.

Mr. BURTON. We would like to have it by tomorrow.

Mr. RABEN. I hear you.

Mr. BARR. There really shouldn’t be any problem because, presumably, there isn’t anything because they have already been

tasked with——

Mr. RABEN. I hear you. We’ll look.

Mr. BARR. The other part to my question, premised on the same

basis, is what did the government prosecutors get in return for conceding not to go into certain areas of inquiry with these two witnesses?

Mr. RABEN. I have no knowledge of that. I have no idea that anything of the sort occurred. I have no knowledge.

658

Mr. BARR. Wouldn’t it make sense? Wouldn’t it be common sense

that if a prosecutor is going to go into an interview with a witness

and not go into fruitful areas of inquiry, that they at least are getting something in return unless all three of the parties, the prosecutor, the government, the witness’s lawyers and the witness are

colluding, which may be what happened here, that the three of

them got together and said we are—we don’t want these areas gone

into. The Department of Justice says, yes, sir, absolutely, we will

not go into these areas, because you’re the President or your attorneys don’t want us to. That’s certainly possible, is it not?

Mr. RABEN. I hear you, sir. To me, it’s a speciality. It’s not about

common sense. I don’t prosecute.

Mr. BURTON. Does the gentleman have further questions?

Mr. BARR. I have no idea what he just said. There’s no common

sense in—— Mr. RABEN. You asked me, sir, was it common sense that there

would be a bargain like that. I don’t think that’s a question of common sense. I think that’s a question of professionalism and strategy

about prosecution, and I don’t do that.

Mr. BARR. Professionalism, one would hope, is common sensical.

Used to be.

Mr. BURTON. Gentleman’s time has expired.

Are there further questions by any member of the committee?

If not, this has been a very interesting day. I hope tomorrow is

as interesting but not as contentious. We stand adjourned. Thank

you very much.

[Whereupon, at 5:10 p.m., the committee was adjourned.]

(659)

WHITE HOUSE E-MAILS: MISMANAGEMENT OF

SUBPOENAED RECORDS—DAY FOUR

THURSDAY, MAY 4, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

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

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Morella, Shays, Ros-Lehtinen,

Barr, Hutchinson, Terry, Chenoweth-Hage, Waxman, Lantos, Kanjorski, Norton, Cummings, Kucinich, and Ford.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Mark

Corallo, director of communications; Pablo Carrillo and M. Scott

Billingsley, counsels; Jason Foster and Kimberly A. Reed, investigative counsels; Kristi Remington, senior counsel; Robert Briggs,

deputy chief clerk; Michael Canty, legislative adie; Leneal Scott,

computer systems manager; Lisa Smith Arafune, chief clerk; Maria

Tamburri, assistant to chief counsel; Corinne Zaccagnini, systems

administrator; Phil Schiliro, minority staff director; Phil Barnett,

minority chief counsel; Kenneth Ballen, minority chief investigative

counsel; Kristin Amerling, minority deputy chief counsel; Paul

Weinberger, minority counsel; Ellen Rayner, minority chief Clerk;

Jean Gosa and Earley Green, minority assistant clerks; and Andrew Su, minority research assistant.

Mr. BURTON. The committee will come to order.

A quorum being present, the Committee on Government Reform

will now sit in session.

I ask unanimous consent that all Members’ and witnesses’ written opening statements be included in the record; and, without objection, so ordered.

I ask unanimous consent that all articles, exhibits and extraneous or tabular material referred to be included in the record.

Without objection, so ordered.

I also ask unanimous consent that questioning in this matter

proceed under clause 2(j)(2) of House rule 11 and committee rule

14 in which the chairman and ranking minority member allocate

time to members of the committee as they deem appropriate for extended questioning, not to exceed 60 minutes equally divided between the majority and minority. Without objection, so ordered.

I also ask unanimous consent that questioning in the matter

under consideration proceed under clause 2(j)(2) of House rule 11

and committee rule 14 in which the chairman and ranking minorVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00667 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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ity member allocate time to committee counsel as they deem appropriate for extended questioning, not to exceed 60 minutes divided

equally between the majority and minority. Without objection, so

ordered.

Today marks day 4 of our hearings into the White House e-mail

matter. Yesterday, we focused on what was happening in the Office

of Administration. I made four general points about what we

learned. I think they bear repeating.

First, more evidence is emerging that the Northrop Grumman

employees who discovered the problem were threatened by White

House staff and ordered to keep their problem secret.

Second, it’s clear that technical people in the Office of Administration were trying to get the problem fixed. But months and

months were going by, and they couldn’t get anyone at a higher

level to approve it.

Third, there was an appropriations committee hearing in March

1999. There was discussion going back and forth within the Office

of Administration about whether to tell the Appropriations Committee about the e-mail problem, but the committee was never informed.

Fourth, we have been informed that there was a second briefing

of the White House counsel’s office about the e-mail problem. The

first briefing happened in June 1998. The second briefing happened

in the spring of 1999. But this committee was never informed that

our subpoenas had not been complied with until we read about it

in the newspaper in February 2000 and started our own investigation.

I think it’s worth restating why we’re here today and why we’re

conducting this investigation.

There was a very serious illegal fundraising scandal involving

the Clinton administration. Several million dollars from foreign

sources were funneled into the DNC. The head of China’s military intelligence agency gave Johnny Chung $300,000 to give to the

President’s campaign. Charlie Trie, a friend of the President’s,

brought hundreds of thousands of dollars from a Buddhist sect in

Taiwan to the Presidents’ legal defense fund. More than a 120 people have either taken the fifth amendment or fled the country to

avoid questioning.

This was a serious problem. This committee started an investigation. We issued several subpoenas to the White House for documents. We struggled for a long time to get those documents, and

I’ll talk about that more in a minute. Eventually, we got a certification from the White House that we had been given all the documents to which we were entitled.

Now in June 1998 the White House discovered that it had a serious e-mail problem. Two and a half years of incoming e-mails

weren’t put into the ARMS system. That means 21⁄2 years of incoming e-mails weren’t searched to see if they had to be produced to

the Congress or the Justice Department or the independent counsels that subpoenaed documents.

This was not a trivial number of documents. It was 246,000 plus

e-mails. Now, if you receive a lawful subpoena and you’re in possession of relevant documents that haven’t been turned over, you have

a legal obligation to tell the investigating agency and you have an

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obligation to produce the documents. If you don’t do it, it’s called

obstruction of justice.

We were not informed in 1998. Neither was the Justice Department and neither were the independent counsels.

We weren’t informed in 1999. Neither was the Justice Department or the independent counsels.

We weren’t informed until March 2000. That’s 1 year and 9

months after the White House counsel’s office was briefed. And I

want everyone to understand how we were informed, because we

didn’t just get a call out of the blue. Here’s how it happened:

On February 14th, the e-mail problem was reported on the front

page of the Washington Times.

On March 7th, my staff interviewed the Northrop Grumman contractors.

On March 8th, I wrote to the White House counsel and the Attorney General. And it wasn’t until I interviewed those contractors

and wrote those letters that anything happened.

On March 10th, the Justice Department called the White House

to ask for an explanation.

On March 15th, the White House counsel’s office provided an explanation to the independent counsel.

On March 20th, the White House gave the Justice Department

a written explanation.

So, to summarize, in coming e-mails from 21⁄2 years were kept

under wraps. The White House knew about it for almost 2 years,

but they didn’t inform the Justice Department until we started

looking into it. And the justice Department didn’t start an investigation until they realized that we were looking into it. And lawyers within the Justice Department’s Civil Division had known

about this for a long time.

That’s a shameful record. Time and time again, we’ve seen a very

cozy relationship between this Justice Department and this White

House. That’s why the Attorney General should have appointed an

independent counsel for the fundraising investigation 2 or 3 years

ago. That’s why she should appoint a special counsel for the e-mail

investigation today.

Today we’re going to focus on the White House counsel’s office.

The reason is simple. The technicians in the Office of Administration are not responsible for complying with subpoenas. The White

House counsel is.

So the question is this: What did the counsel’s office know and

when did they know it?

The counsel at the time was Charles Ruff. We know that on June

18, 1998, the day after the problem was discovered, he got a detailed memo. He was briefed on the entire situation. According to

his calendar, the deputy counsel, Cheryl Mills, was with him.

So far, we’re being told that there was a big disconnect. The people at the counsel’s office just didn’t get it. It was too technical for

them.

Yesterday, we were told that there was a second briefing. Mr.

Lyle told us that in the spring of 1999 the so-called letter D problem was discovered. He told his boss, Mr. Lindsay. Mr. Lindsay

told Mr. Lyle that he briefed the counsel’s office. Mr. Lindsay is

662

here today, and we’re going to ask him who he talked to and what

he told them.

So was there a second disconnect? Did the counsel’s office still

not get it or did they understand it and just decided not to do anything about it? Mr. Ruff and Ms. Mills are here today, and we’ll

ask them.

Mr. Ruff and Ms. Mills have been here before. They both testified

in the fall of 1997, and I’m sorry to say that we haven’t had much

in the way of cooperation from them over the years.

We almost had to hold Mr. Ruff in contempt to get him to turn

over any documents to us in 1997. We discovered that hundreds of

videotapes of the President at fundraisers had been withheld from

us, and we were told that the counsel’s office didn’t realize that

they were there. But Ms. Mills had written memos on the subject

to the White House staff.

Ms. Mills withheld important documents from the White House

data base investigation in her office. Ms. Mills refused to cooperate

with this investigation. We called her three times to ask for an

interview, and she didn’t return our phone calls. We sent her a letter, and she said she was too busy to give us an interview. I told

her that we would subpoena her, and she said that she was busy.

We were able to subpoena her, but since she has refused to cooperate we have not been able to speak to her before today. Her lack

of cooperation really makes me ask what she’s trying to hide.

And now we have 246,000 e-mails that were never searched.

If something like this happens once, you might believe it’s a mistake. If it happens twice, you get a lot more skeptical. If it happens

over and over again, it doesn’t leave much doubt about what’s

going on.

I think Harold Ickes summed it up best. He was quoted in a new

book. He said, the White House has a foot-dragging, screw you attitude. And I’m being generous with that terminology. That’s the PG

version of what he said.

So we’re going to listen to what Mr. Ruff and Ms. Mills have to

say today, but, given the past track record, they’ve got an uphill

road to climb to convince us that everything was on the up and up.

On our second panel we have invited White House Counsel Beth

Nolan and Associate Counsel Dimitri Nionakis to testify.

Last fall, Mr. Nionakis was handling document production for

our Waco and FALN subpoenas. He sent us several letters assuring

us that all documents were being searched. He told us specifically

that archived e-mails were being searched. He never said anything

about 21⁄2 years of incoming e-mails that were not being searched.

Did Mr. Nionakis understand the e-mail problem? We’ll ask him

that question today.

Getting him here wasn’t easy. He really resisted coming. Yesterday, he disappeared when we tried to serve him with a subpoena.

For the first time ever, I think, we had to ask the U.S. Marshal’s

Office to serve a subpoena to the White House. Instead of tracking

down fugitives yesterday afternoon, the Marshals had to spend the

afternoon tracking down a White House lawyer.

Last night, my staff asked Beth Nolan if she had instructed Mr.

Nionakis not to accept service of the subpoena; and she said, ‘‘I will

not answer that question.’’ They asked her if he had gone to work

663

yesterday or if he was avoiding the Marshals. She said, ‘‘I will not

answer that question.’’ I think the American people have a right to know what happened. What happened yesterday was not what I call a bright new

beginning in our relationship with the White House. Instead it was

more of the same.

However, we’ve reached an agreement. Mr. Nionakis is going to

testify alongside the chief counsel for the President, Ms. Nolan,

today.

I want to get on with the questioning, so I’ll stop here. I think

we have a full day ahead of us. I would like to get things moving,

and I now yield to Mr. Waxman.

Mr. WAXMAN. Mr. Chairman, I am looking forward to the testimony we’re going to receive today so I have no formal statement.

But I do want to point out for the record what your statement that

was just delivered is filled with inaccuracies and omissions and creates, unfortunately, a distorted picture of the events.

The second thing I want to point out is that we’ve all heard

about frivolous lawsuits, and no one would want to defend a frivolous lawsuit, but this committee seems to be in the habit of making

frivolous accusations and even referrals to the Justice Department

against people who have chosen to serve the public and accuse

them of criminal action, perjury, obstruction of justice, whatever.

One of our witnesses, Cheryl Mills, is no longer working for the

government. She worked at the White House with great distinction.

She’s now in the private sector. And this committee referred to the

Justice Department an accusation against her at one time that because they didn’t like her statements, that she had committed perjury. Well, she was exonerated from that charge. It besmirched her

reputation when those kinds of accusations were made. I think an

apology is due her, and I would hope the committee would find it

in its sense of decency to apologize to her as well.

She is here today even though she asked, because she’s in the

private sector, that her schedule be accommodated, but this committee was not willing to accommodate her schedule. I think that’s

unfortunate.

Mr. Ruff is no longer with the government either. He served with

great distinction as the White House counsel. He has an unsurpassed reputation for integrity and honesty and legal ability. He is

here at the request of the committee to answer questions.

And the issue before us is one of whether there was any intentional withholding of information about e-mails that because of

technical snafus didn’t get picked up in a centralized system,

whether some of those e-mails were withheld from the appropriate

committees of Congress and other investigators, whether they were

actually withheld, and if they were withheld, whether it was an intentional act.

These are questions worth pursuing. We pursued it over and over

and over again. This is the fourth or fifth hearing we’ve had on this

subject. I don’t think that we’ve established to this point evidence

of any wrongdoing or any kind of conspiracy, even though the majority has tried to paint that picture.

I just point out this is probably one of the few committees that

has in its room a clock that is never right. I don’t know what that

664

tells us. But the clock that’s running evidently in this room appears to not be an hour behind or to have failed to change for daylight savings time or whatever. It just is incorrect. And it is fitting

in this room, where so many of the statements are often incorrect,

that we’re sitting in this hearing today.

I look forward to the testimony. I appreciate these witnesses

being here. Mr. Lindsay, who’s also testifying, already testified before us for many, many hours. I don’t know what else there is to

ask him. But I’m sure there will be questions, and he was very

forthright in his responses last time. I expect him and the other

witnesses to be so today. I look forward to their testimony.

Mr. BURTON. Would you please rise so you can be sworn.

[Witnesses sworn.]

Mr. BURTON. Do any of you have opening statements you would

like to make?

STATEMENT OF CHARLES RUFF

Mr. RUFF. Mr. Chairman, thank you. I do not have a formal

opening statement, but I do wish briefly, if I may, to respond to one

theme that you have sounded not only today but in prior hearings.

Because, independent of the e-mail issue that we will be talking

about today, I fear that the record reflects a simply incorrect version of historical events. You and I have over the course of my tenure at the White House had I think not necessarily a fully friendly

but always an open and candid relationship in which you have

been very direct with me and I have been very direct with you. I

intend to do the same today, as I’m sure you will.

The notion that somehow the White House was less than forthcoming or cooperative with this committee is I think a

mischaracterization of the White House and the White House counsel’s office. I no longer have any official role nor need to defend the

institution of the White House counsel’s office, but to the extent

that it suggested that either somehow the threat of contempt,

which was very pointed and very real to me, was necessary to extract missing documents from the White House or that we were

somehow laggard in our efforts to produce documents for this committee over the years is simply incorrect.

As the Chair knows, our battles in the spring of 1997 over certain claims of possible privilege involved a full disclosure to the

committee of what those documents were, a relatively small handful of them ultimately turned over in the face I admit of your contempt threat. But as you know from having seen those documents,

there was absolutely nothing of any substance in them, and they

were entirely legitimate in our efforts to bring them under what we

understood them to be, equally legitimate claims of important constitutional privilege. Any suggestion that somehow the White

House counsel’s office during my tenure and Ms. Mills’ tenure was

anything other than forthcoming to the full extent of our knowledge, Mr. Chairman, I submit with all respect, is simply, flat-out

wrong.

Mr. BURTON. Ms. Mills.

665

STATEMENT OF CHERYL MILLS

Ms. MILLS. Thank you. Mr. Chairman, Representative Waxman,

members of the Committee on Government Reform, my name is

Cheryl Mills. For almost 7 years I served in the White House counsel’s office under President’s Clinton. During my tenure, I served

first as an associate counsel and later as deputy counsel.

When I arrived, I was 27 years old. I was 34 when I left last October. I came into government because I believed that the opportunity to serve this country was a valuable one. I believed that giving of my time, my energy and even my soul to try to make a difference was important. I believed that the gift of one’s labor, the

gift of one’s love for this country was one of the purer things that

I, like other young people, had to give.

When I left, it had become hard for me to believe anymore. I left

increasingly cynical about Congress’ commitment to improving the

lives of Americans. I left deeply troubled by the culture of partisanship in Washington that with each passing day was threatening

the very essence of what is good and what is right and what is joyful about public service. When I left, it was no longer obvious to

me that serving in government with a Congress that was committed to oversight by investigation was worth the high toll that it exacted.

And the greatness of that injustice is not in its harm to me. I

am only one person. Rather, it is in the damage that it does to all

the ideals of the young people who decide never to serve, the young

people who decide that no one should have to love their country

enough to have their integrity and their service and their commitment to doing the best they can impugned by some who sits in this

body, the young people who decide that their desire to serve their

country and a President is not outweighed by the risk to their reputation, their livelihood and their family, the young people who decide that too many who toil in this body have forgotten that their

exalted positions are but loaned to them by the young on the understanding that they will seek what is best for our country and

not what is least.

I left because I knew that time and distance would allow me to

see again the many Members who serve honorably in Congress

every day, Members who choose to work hard for their constituents

on issues that will enrich their lives and men and women who get

up each day not thinking about how they can bring someone down

but how they can lift us all up.

Mr. Chairman, I left because I was tired of playing a role in

dramas like today, when so many issues that mattered to me were

not addressed. You have held 4 days of hearings and spent countless more dollars on depositions and document productions but yet

you have not chosen to use your oversight authority to hold 1 day’s

worth of hearings about a man who was shot dead by an undercover New York police officer while he was getting into a cab after

refusing to buy drugs from that officer; not 1 day’s worth of hearings about any of the 67 cases and counting that have been overturned because officers in the Los Angeles Police Department

planted guns and drugs to frame people, shot an unarmed man,

and quite possibly murdered another with no criminal record, by

shooting him 10 times; not 1 day’s hearing about why African

666

American youths charged with drug offenses are 48 times more

likely than white youths to be sentenced to prison.

Not to mention all the other ways there which you could spend

your time making the lives of the individuals you serve better, as

opposed to tearing down the staff of a President with whose vision

and policies you disagree. You could choose from a myriad of issue,

from health care to prescription drug benefits to family medical

leave, education reform, Social Security, judicial reform. Nothing

you discover here today will feed one person, give shelter to someone who is homeless, educate one child, provide health care for one

family or justice to one African American or Hispanic juvenile. You

could do so much to transform our country, but you are instead

choosing to use your great authority and resources only to address

e-mails.

The energy your staff will spend pouring over hearing transcripts

to create a perjury referral for you to send to the Justice Department could be spent pouring over the latest statistics in the Justice

Department’s report on unequal treatment African American and

Hispanic youths receive before the law. And the resources that the

Justice Department will expend reviewing your allegations causing

those public servants and their families considerable pain could instead be spent investigating why America’s justice system unfortunately is still not yet blind.

I know I say all this at some personal peril as my words today

undoubtedly will make me an even greater target of your ire. But

when I received your letter last week about attending this hearing,

despite having advised you of my long scheduled commitments, a

letter in which you simply dismissed my engagements, stating that

you could not indulge my schedule, I got tired and angry all over

again.

And if I had not had a chance to attend a dinner that night in

honor of the Robert F. Kennedy Memorial Foundation I probably

would still be angry. Because I would not have had the chance to

have my faith renewed by the example of what other men with

your power have chosen to do throughout history to enhance the

lives of others. I would not have been reminded of Robert Kennedy’s work on behalf of issues like race and justice and poverty

and how they embody the true spirit of his greatest words. ‘‘It is

from numberless diverse acts of courage and belief that history is

shaped. Each time a man stands up for an ideal or acts to improve

the lot of others or strikes out against injustice, he sends forth a

tiny ripple of hope, and crossing each other from a million different

centers of energy and daring those ripples build a current which

can sweep down the mightiest walls of oppression and resistance.’’

Had I not gone to that dinner that night I would not have been

reminded that the smallness of any person can never overshadow

the greatness of those whose acts are bigger than life. I would not

have been reminded that today, too, will pass and that we who love

our government are strong enough and not too weary. We can outlast a culture of investigation and intimidation and idleness on behalf of issues that could truly improve the lives of Americans.

Mr. Chairman, I believe in your humanity and in that of your

staff, that you, each, have good and bad days, make good and bad

judgments, render good and bad decisions. Won’t you believe in the

667

humanity of others with whom you disagree? Won’t you believe

that, as with your mistakes, they too can make mistakes that are

not conspiratorial? That they too can make a bad judgment without

that judgment being pernicious? That they too can do their best

each day and expect more than a biased shake or a perjury referral

from this committee? That they too can be human, without this

body using its awesome power to exploit their humanity for political gain? Can Tony Barry, a man who served his government since

1992, expect that?

I give my last quotation to Robert Kennedy, because to me it is

particularly fitting today. He said, ‘‘the Constitution protects wisdom and ignorance, compassion and selfishness alike.’’ But that

dissent which consists simply of sporadic and dramatic acts sustained by neither continuing labor or research, that dissent which

seeks to demolish while lacking both the desire and the direction

for rebuilding, that dissent which, contemptuously or out of laziness, casts aside the practical weapons and instruments of change

and progress, that kind of dissent is merely self indulgence. It is

satisfying, perhaps, only to those who make it.

I decided that smallness in government can’t win and that it will

not be the weapon to defeat my ideals, that it is not powerful

enough to alter my belief in the good that so many Members who

serve in this body do. I decided that, in the final analysis, I am not

too tired to stand up for all of those who believe, even through the

drama, that public service is worth it. Thank you.

Mr. BURTON. Thank you, Ms. Mills.

Mr. Lindsay.

Mr. LINDSAY. I believe that my prior statement from the last

hearing will suffice. I don’t have any opening statement.

Mr. BURTON. We’ll go directly to the questions. Let me start by

making a little comment.

First of all, I thought that was a very eloquent speech that you

made, Ms. Mills. It was very good, as you can see by the reaction

from members of the audience and the committee.

The fact of the matter is, though, that we have been investigating or conducting a number of investigations for about 4 or 5 years

now. Millions of dollars in illegal campaign contributions have

come in from abroad; 120 people plus have fled the country or

taken the fifth amendment. We have tried to get the White House

to work with us to get to the bottom of all this. We have been

blocked again and again and again. And I’ll comment on what Mr.

Ruff said in just a moment.

And so the purpose of the hearing is not to try to intimidate or

bludgeon or hurt anybody but to get the facts out for the American

people. Lincoln said, ‘‘let the people know the facts and the country

will be saved.’’ And, you know, I think that the facts will speak for

themselves.

The White House counsel’s office knew some time ago, not once

but twice, about the e-mail problem. They knew that subpoenas

had been issued by a number of independent counsels, this committee, other committees and the Justice Department for documents.

And those documents could have been and may be in some of those

e-mails. There’s 240-some thousand of them. And yet the White

House chose not to tell the appropriations committee about them,

668

not to ask for resources for that or employees to help go through

that mountain of e-mails to comply with the subpoenas which

they’re going to have to do anyhow, but they chose to either ignore

it or to hide it. That’s what we want to find out. We’re not here

to try to intimidate anybody but to find out where the responsibility lies and why those subpoenas were not complied with as is required by law.

Now, Mr. Ruff, I have here before me the whole litany of correspondence which I will be very happy to give to you so you can

review what happened. But back when you came to my office years

ago in 1997, we asked for documents you said that the President

was not going to claim executive privilege. Then later you said you

were considering privilege, and we said that the executive was not

entitled to that privilege. We contacted you about that. We sent

you subpoenas, you did not comply, and then we started to move

for contempt, and then you did comply.

I have a letter here, Mr. Ruff, that’s from you that says that you

have, to the best of your knowledge, given us everything. Four

months later, we got another 10 or 12 boxes of documents, many

of those on a Friday night and a lot of it was released on Saturday

morning to the papers; and they blamed us for leaking that to the

media when my office had not even opened those boxes until Monday.

So, you know, it’s a little disingenuous for you to say that you

were cooperative with us from day 1 when you and I both know,

Mr. Ruff, that that’s not accurate.

Now let’s get to the questions.

Mr. FORD. Mr. Chairman, would you yield for one moment, sir,

before you get to your questions?

Mr. BURTON. I think Mr. Waxman was going to have 30 minutes.

I would prefer that you ask Mr. Waxman for the time because we

have a full litany of questions.

Mr. FORD. It’s just a unanimous consent request, if you don’t

mind, sir.

Mr. BURTON. Stop the clock.

Mr. FORD. Just in light of what has been said this morning, I

was wondering if I could, with a unanimous consent request, enter

into the record what Senator Hagel said yesterday according to yesterday’s the Hill newspaper where he criticized his fellow Republicans for allowing their deep-seated suspicions of Clinton to derail

their own political agenda. And I think it reads, GOP’s Distrust of

Clinton Drives Congress’s Agenda. Just in light of what has been

said this morning, if the committee does not object.

Mr. BURTON. Without objection, so ordered.

[The information referred to follows:]

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Mr. BURTON. Mr. Lindsay, it was in June 1998 when you learned

about the Mail2 problem, wasn’t it?

Mr. LINDSAY. Yes, sir.

Mr. BURTON. After you learned about the problem, you took steps

to determine the nature of the problem and then assisted in the appropriation of exhibit 1—do we have Exhibit 1 to put on the

screen? exhibit 1. If not, you have it before you, which is a memo

from Virginia Apuzzo to John Podesta explaining the problem— didn’t you?

Mr. LINDSAY. That’s what I testified to last week.

Mr. BURTON. On June 19, 1998, you met with Charles Ruff, the

chief counsel, to inform him of the problem, didn’t you?

Mr. LINDSAY. That’s what I testified to at the last session.

Mr. BURTON. Was Cheryl Mills present at that meeting?

Mr. LINDSAY. I have no recollection of ever discussing this matter

at all with Ms. Mills.

Mr. BURTON. Was Cheryl Mills present at the meeting?

Mr. LINDSAY. Not to my recollection.

Mr. BURTON. You don’t recall whether or not she was at the

meeting.

Mr. LINDSAY. No, I do not, sir.

Mr. BURTON. Well, exhibit 48, Mr. Ruff’s calendar, indicates that

she was present. Now she’s one of the highest-ranking people in

the White House counsel’s office, and you don’t remember whether

she was there.

[Exhibit 48 follows:]

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673

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Mr. LINDSAY. If your question, sir—if that reference refreshes my

recollection as to whether or not Miss Mills was there, my answer

to that question would be, no, it does not.

Mr. BURTON. You don’t remember. And you don’t remember the

phone call that you made also and talked with Ms. Crabtree, then

Ms. Crabtree, about with the people from the Northrop Grumman

corporation present either. You don’t remember that either.

Mr. LINDSAY. No, I don’t. As I testified before, sir, there are

many, many different conversations that I had with lots of people.

Mr. BURTON. I understand you just don’t remember. Did you

state anything to the effect that the technical problem was limited

only to Monica Lewinsky’s e-mails?

Mr. LINDSAY. I don’t have a specific recollection of that other

than what is contained in the memorandum, and I think that that

document speaks for itself.

Mr. BURTON. Did anyone at the meeting indicate that they didn’t

understand what you were talking about?

Mr. LINDSAY. I don’t have any recollection of the reaction of what

people said to what I said. All I was focused on was conveying the

information. I believe that the information contained in the document contains at least the sum and substance and speaks for itself

for what I was trying to convey.

Mr. BURTON. Mr. Ruff, your meeting with Mr. Lindsay on June

19, 1998, was that the first time that you were made aware or exposed to the Mail2 problem?

Mr. RUFF. I can’t recall, Mr. Chairman, whether I received the

Apuzzo memo contemporaneously or shortly before the meeting,

but it’s my best recollection that the meeting was the first occasion

on which I heard of it.

Mr. BURTON. Do you recall what Mr. Lindsay told you about the

problem?

Mr. RUFF. Only in very general terms, Mr. Chairman.

Mr. BURTON. You do recall that Mr. Lindsay told you there was

a failure with the ARMS system that disabled ARMS from capturing incoming e-mail.

Mr. RUFF. I have that general recollection, yes, sir.

Mr. BURTON. Based on the information that Mr. Lindsay gave

you, were you concerned that the problem might have affected the

White House’s ability to comply with outstanding subpoenas?

Mr. RUFF. I was, yes.

Mr. BURTON. You were aware of that.

Ms. Mills, were you at that meeting?

Ms. MILLS. I don’t believe I was.

Mr. BURTON. You don’t believe you were.

Ms. MILLS. No, because my first recollection of learning of this

matter was from Mr. Ruff.

Mr. BURTON. So you say you don’t recall attending or you didn’t

attend that meeting.

Mr. HILL. I don’t believe I did attend the meeting.

Mr. BURTON. Categorically, can you say you did not?

Ms. MILLS. That’s my best recollection.

Mr. BURTON. So what you’re saying, your best recollection is you

really don’t remember whether you attended the meeting or not.

676

Ms. MILLS. My best recollection is that I did not attend the meeting.

Mr. BURTON. But you’re not sure.

Ms. MILLS. Well, Mr. Chairman, I’m under oath, and I’m familiar

with the practices in this room, so I’m trying to be as honest and

truthful as I can, and so I want to make sure that I am giving you

accurate information. I don’t believe I attended the meeting. That’s

my best recollection, because I recall learning of this matter from

Mr. Ruff.

Mr. BURTON. Did you get a copy of the Podesta memo?

Ms. MILLS. I did not.

Mr. BURTON. What did Mr. Ruff tell you about the problem before the meeting?

Ms. MILLS. I don’t recall having a discussion with Mr. Ruff about

the problem before the meeting.

Mr. BURTON. What is your recollection of Mr. Lindsay’s briefing

about the e-mail problem?

Ms. MILLS. I don’t know what Mr. Lindsay’s briefing was. I spoke

with Mr. Ruff after his meeting with Mr. Lindsay.

Mr. BURTON. Mr. Ruff, what did you do to handle the problem?

Mr. RUFF. Mr. Chairman, my recollection is—and I will tell you

that it is not a detailed recollection—is that, following the meeting

with Mr. Lindsay, I did discuss the matter with Ms. Mills. I believe

that the next steps—and I cannot tell the committee exactly what

those steps were—was to make further inquiry into whether or not

the problem that Mr. Lindsay described did indeed have an adverse

affect on our collection and production of documents.

Mr. BURTON. Did you tell Ms. Mills that she needed to make sure

the problem didn’t affect both past document productions and future searches?

Mr. RUFF. I do not recall the specifics of my conversation with

Ms. Mills. I think it’s fair to say that my immediate focus was on

whether we had adequately complied with the outstanding independent counsel subpoena relating to the Lewinsky matter.

Mr. BURTON. Ms. Mills, what did Mr. Ruff ask you to do to solve

the problem?

Ms. MILLS. Mr. Chairman, Mr. Ruff indicated that there had

been a problem with certain e-mails that might not have been captured, that OA was gathering them, that they were going to forward them to our office. We were going to then need to make a determination whether or not those e-mails had or had not been produced and if they had not been produced that we needed to produce

them immediately.

Mr. BURTON. Did you work with any other members of the White

House counsel’s office in determining the scope of the problem?

Ms. MILLS. The e-mails—the material came from OA over to our

office; and I forwarded them to Shelly Peterson, an associate counsel in our office, who reviewed the materials to determine whether

or not they were duplicative or whether or not in fact there were

e-mails that had not been captured.

Mr. BURTON. Shelly Peterson is her name.

Ms. MILLS. Yes.

Mr. BURTON. What steps did you take to determine the nature

of the problem?

677

Ms. MILLS. It was my impression that the problem—that there

was an e-mail problem where certain e-mails had not been captured and that the e-mails were being gathered that had not been

captured and we were then going to have to make a determination

as to whether or not those e-mails had, in fact, not been captured.

Mr. BURTON. Did you develop a test search to diagnose the problem?

Ms. MILLS. I did not.

Mr. BURTON. What was the search that you developed?

Ms. MILLS. Mr. Chairman, I didn’t develop a search. It was my

understanding that the Office of Administration was going to be

forwarding over e-mails that may have been missed and that those

e-mails needed to be searched and reviewed with respect to prior

document productions to make a determination as to whether or

not they had or had not been produced.

Mr. BURTON. I think we were told by the Office of Administration

that the White House counsel’s office had developed a search.

Ms. MILLS. If that is the case, I wasn’t a part of that development.

Mr. BURTON. Who would have been?

Ms. MILLS. I don’t know the answer to your question.

Mr. BURTON. Mr. Ruff, who would have been the one that was

in charge of—— Mr. RUFF. I do not know who conversed with the Office of Administration on this subject, Mr. Chairman.

Mr. BURTON. That’s kind of mystifying, if we were told that the

counsel’s office developed a search procedure and was sent to the

Office of Administration and you say you don’t recall any of that.

Mr. RUFF. I do not. I was not—— Mr. BURTON. And Ms. Mills doesn’t either.

Ms. MILLS. That’s correct.

Mr. BURTON. Well, the Office of Administration said they didn’t

develop searches. Is that correct, Mr. Lindsay?

Mr. LINDSAY. That’s correct.

Mr. BURTON. So nobody was developing any search program.

Mr. LINDSAY. I don’t think that that’s an accurate characterization of people’s testimony here. I believe my recollection—what I

testified about last time was that I did not recall who the person

was who gave the information to me to have the search conducted.

And, frankly, considering the fact that there are other investigations going on, there are other matters that were going on and lots

of other important business that was going on, the actual individual, the identity was not something that I would log in my memory

as being particularly significant. As long as the task was performed, that was the important fact.

Mr. BURTON. Who developed the search?

Mr. LINDSAY. I don’t know sir.

Mr. BURTON. You don’t know. Ms. Mills doesn’t know. Mr. Ruff

doesn’t know. Does anybody know?

Have you talked to anybody that developed the search?

Mr. LINDSAY. I have not inquired on that issue.

Mr. BURTON. Why not?

Mr. LINDSAY. For a variety of reasons. I think that one of the

reasons why I wouldn’t inquire with those individuals as to how

678

they were developing those things is because there were serious allegations that were made against me and my conduct in this matter. I have been very careful in my communications with people

who could be potential witnesses and come before the committee.

I am very sensitive to the fact that it is possible that people could

make an allegation that I was trying to conjure testimony or conjure information. What I can do and bring before you is information

which is within my knowledge and what I can testify about. And

I’m giving you that state of knowledge as I am presenting to you

here today.

Mr. BURTON. So, you don’t—there was a test search, though,

done, and you’re familiar with that.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. OK. Did you discuss the test search with anyone

else either in the counsel’s office or the Office of Administration?

Mr. LINDSAY. When I received the information I passed it on to

the technical staff so they can conduct the work.

Please remember that this is not a usual practice, for that kind

of information to be passed onto me. So I passed it on to the people

who were working with—and my direct involvement with this particular matter that was Laura Crabtree and the Northrop Grumman employees. They conducted the work, I don’t have a recollection as to how long it took, and then that information was passed

back to the counsel’s office.

Mr. BURTON. Who actually carried out the search for the

Lewinsky related e-mails?

Mr. LINDSAY. I could not tell you who actually looked at it. It was

my understanding that it was a team of people. I passed the information to Laura Crabtree. Ms. Lambuth, I believe, was involved

with it in some way; and Mr. Haas was involved with it in some

way. It was my understanding at the time, and I believe that this

may not be completely accurate, that he did that on his own in an

office and conducted that review.

Mr. BURTON. But you requested the test search.

Mr. LINDSAY. Yes, sir.

Mr. BURTON. How long after the search was requested, how long

was it before you got the results?

Mr. LINDSAY. I don’t recall, sir.

Mr. BURTON. You don’t recall that. Do you know who brought the

results to you?

Mr. LINDSAY. It was either Laura Crabtree or Betty Lambuth,

one of the two.

Mr. BURTON. Did you then analyze the e-mails that were gathered in response to the search and how did you analyze them?

Mr. LINDSAY. I did not analyze them. To this day, I have not

looked at a single one of them.

Mr. BURTON. What was your conclusion about the e-mails that

had been gathered when they gave the information to you?

Mr. LINDSAY. I made no conclusion, sir.

Mr. BURTON. Did you see the report, after the search was made,

Ms. Mills?

Ms. MILLS. Could you clarify your question? I’m trying to understand what you mean by report.

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Mr. BURTON. Well, the research that was done regarding the

Lewinsky matter, when it was concluded and given to Mr. Lindsay,

obviously you or somebody at the Office of Administration got that.

Did you review that?

Ms. MILLS. You use the term ‘‘report.’’ What we received were emails that were the result of the search.

Mr. BURTON. These are the e-mails from the Lewinsky search.

Ms. MILLS. Obviously, I’m not in a position to——

Mr. BURTON. You can take my word for it. That’s what they are.

Did you analyze those after the search was done?

Ms. MILLS. I sent the e-mails to Shelly Peterson in our office,

who was handling a lot of the investigative matters related to the

Lewinsky investigation, to review them to determine whether or

not the e-mails had been produced or were duplicative or had not

been produced. So——

Mr. BURTON. Did the results of your analysis or reviewing this

lead you to conclude that the problem Mark Lindsay told you about

in fact did not affect the White House’s compliance with subpoenas?

Ms. MILLS. I’m sorry, I don’t understand your question. Because

it suggested that I did an analysis. What I did was receive the emails and forwarded them to Ms. Peterson to review the e-mails to

determine whether or not they had been produced or not. And if

they had not been produced, then we needed to produce them; and

if they had been produced, they would obviously have been duplicative and would have been captured.

Mr. BURTON. Once that you saw that there was a problem with

e-mails that had not been produced, did that concern you or did

you understand that there was a problem with noncompliance with

subpoenas that had been sent by the independent counsels and the

Congress?

Ms. MILLS. Could you explain your question? You said once I

saw——

Mr. BURTON. Once you saw there was an e-mail problem.

Ms. MILLS. I didn’t see that there was an e-mail problem. It was

my understanding that there were e-mails that had not been captured, that those e-mails were then being collected, that we then

needed to make a determination as to whether or not they had

been captured or not. If they had not been, then we needed to

produce them immediately.

Mr. BURTON. Well, Mr. Lindsay, the Office of Administration had

made the counsel’s office aware that there was an e-mail problem

that they hadn’t captured since September 1996. Weren’t you

aware of that?

Ms. MILLS. No. I was not a part of the meeting, to the best of

my recollection. I learned about the matter from Mr. Ruff afterwards.

Mr. BURTON. That’s the meeting that Mr. Lindsay had with Mr.

Ruff where you’re not sure you were in attendance and Mr. Lindsay is not sure you were there.

Ms. MILLS. I don’t believe I was there. That’s my best recollection.

Mr. BURTON. Your best recollection.

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Ms. MILLS. And I don’t recall occasion where I had a conversation with Mr. Lindsay on this matter.

Mr. BURTON. Didn’t Mr. Ruff mention to you after his meeting

with Mr. Lindsay there was a problem with the e-mails?

Ms. MILLS. Mr. Ruff indicated that there was a problem that emails may not have been captured, that the Office of Administration was collecting those e-mails, and we were going to have to

make a determination as to whether or not those e-mails had or

had not been captured, and if they had not been we needed to

produce them immediately.

Mr. BURTON. Can you tell us exactly or to the best of your recollection what you told Ms. Mills about the e-mail problem and what

you instructed her to do?

Mr. RUFF. As I think as reflected in my interview with the committee, Mr. Chairman, I did not have a recollection as to whether

Ms. Mills was or was not present at the original meeting with Mr.

Lindsay. And thus, candidly, I do not have a recollection of a subsequent conversation. But I take at face value Ms. Mills’ recollection

as being accurate, and I cannot either add or subtract from her description.

Mr. BURTON. Mr. Ruff, you were the chief counsel to the President. You were the one that was supposed to make sure the subpoenas were complied with. You were told by Mr. Lindsay that

there was a problem with e-mails that had not been captured since

September 1996, which was right at the beginning or the height of

the campaign finance scandal. So you knew there was going to be

some concern about that.

Mr. RUFF. I have already so stated.

Mr. BURTON. So what did you do? I mean, did you—what did you

do?

Mr. RUFF. My best recollection is that, either directly or indirectly through my conversation with Ms. Mills, we were going to

have a search performed by the Office of Administration who typically does our electric—or did our electronic searches, to determine

whether in fact what I had been told by Mr. Lindsay about this

problem did indeed have an adverse effect on our collection and

production of documents, specifically focused, for obvious reasons,

on the most recent subpoena issue, that is, the Lewinsky subpoena

from the Office of Independent Counsel.

Mr. BURTON. So you knew that there was a problem. You knew

a search had to be done.

Mr. RUFF. That’s correct.

Mr. BURTON. And you don’t recall who you asked to conduct the

search.

Mr. RUFF. I do not.

Mr. BURTON. And Ms. Mills—you don’t recall talking to Ms. Mills

about this.

Mr. RUFF. I recall either talking to Ms. Mills afterwards or during the meeting. I take at face value, as I’ve said, her recollection

that she was not present and that we talked there after rather

than at the meeting itself.

Mr. BURTON. Well, did you ask Ms. Mills to pursue the search

and to make sure that the search was done by the Department of

Administration?

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Mr. RUFF. I don’t recall what I specifically said to Ms. Mills, but

I knew that a search was being conducted. I do not know, as I’ve

already said, who framed the boundaries of the search or how it

was being conducted by OA.

Mr. BURTON. Mr. Ruff, you’re one of the brightest lawyers in this

town. You know the gravity of the situation. You knew that there

was a problem. You had to instruct somebody to conduct the search

to make sure there was compliance with the subpoenas. You don’t

remember who you asked to do the search?

Mr. RUFF. I do not know whether indeed I did ask somebody to

do the search. My recollection is that a search was being conducted—was being conducted by the Office of Administration and

the appropriate people within that office and that the goal of the

search was to determine whether or not the e-mail problem that

Mr. Lindsay described to me had adversely affected our collection

and production of documents and response to the independent

counsel’s subpoena.

Mr. BURTON. Where does the buck stop? In compliance with subpoenas, where does the buck stop?

Mr. RUFF. Mr. Chairman, as has been the case from the very

first moment that you and I talked, I take—I took responsibility

then, I take responsibility now for the work of my office and my

staff. And in that sense the buck stops with me.

Mr. BURTON. So it stops with you. And you’re a very bright attorney. I cannot for the life of me believe that you saw there was an

e-mail problem, you knew a search had to be done, and you talked

to Ms. Mills about it, you had been talked to by Mr. Lindsay about

it, and you don’t know who you asked to conduct the search to comply with the subpoenas from independent counsels and the Congress and the Justice Department.

Mr. RUFF. Mr. Chairman, I can vouch for this much. I knew that

a search was being conducted by one of the members—one or more

members of my staff, and I cannot tell you who was responsible for

document production and I am certain was talking to the Office of

Administration. If I knew who that was, I would tell you who it

was. But I do not recall.

Mr. BURTON. This was a very broad problem. How is it confined

down to a very narrow search of just the Lewinsky case?

Mr. RUFF. My understanding of the problem was that the problem existed. I did not know how broad it was or what effect it had.

Thus, in my view, a search particularly focused on compliance with

the independent counsel’s subpoena in the Lewinsky matter was a

device for determining whether indeed the problem described to me

had had an affect on our compliance with subpoenas.

Mr. BURTON. Who did you ask to conduct that limited search?

Mr. RUFF. As I’ve said, Mr. Chairman, in response to your previous questions, I do not recall having such a conversation. I cannot tell you who framed that search request for the Office of Administration.

Mr. BURTON. And, Ms. Mills, you don’t recall—you don’t recall ordering the search or having anything to do with it other than having Mr.—the counsel, Mr. Ruff, tell you about it.

Ms. MILLS. I did not order the search. I did understand that emails were being collected, that they were going to be provided to

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us, that we needed to review them to make a determination as to

whether or not they were duplicative or whether or not they had

not been captured, and if they had not been captured then we

needed to provide them.

Mr. BURTON. But you say you do recall Mr. Ruff bringing this to

your attention.

Ms. MILLS. Yes.

Mr. BURTON. And do you recall him asking you to conduct a

search or to make sure a search was done?

Ms. MILLS. I recall him telling me that OA was conducting a

search and they would then be providing us with the materials.

Mr. BURTON. But he didn’t ask you to be in charge of that.

Ms. MILLS. No.

Mr. BURTON. What did he ask you to do?

Ms. MILLS. He told me that the materials would be coming over

and then we were going to need to make a determination with respect to whether or not the materials reflected that e-mails had not

been captured or that they had been, and so that we were going

to have to have, obviously, our staff review all of the different materials that were collected to make a determination to answer that

question.

Mr. BURTON. But you didn’t ask Mr. Lindsay to conduct a search

or give him any boundaries. And Mr. Ruff, you don’t recall doing

that either.

Mr. RUFF. No, Mr. Chairman.

Ms. MILLS. No.

Mr. BURTON. When you talked to Mr. Lindsay, Mr. Ruff, and he

brought to this to your attention, do you remember what you said

to him? Did you say, ‘‘oh, my gosh, this is something that we have

got to do something about.’’

Mr. RUFF. I don’t remember what I said to Mr. Lindsay. But as

I’ve already stated, Mr. Chairman, I understood that this was an

issue that we needed to address and in particular in the context

of the independent counsel’s subpoena.

Mr. BURTON. What about the other contacts in addition to the

independent counsel’s subpoenas? You had subpoenas from us, you

had subpoenas from a number of independent counsels and probably from other committees of Congress.

Mr. RUFF. My immediate focus, given the time and the circumstances we were living through at that time, Mr. Chairman,

was to focus on our immediate compliance with the independent

counsel’s subpoena. If in fact I had concluded that indeed there was

a broader ranging problem that adversely affected our early productions, obviously I would have done something about it.

Mr. BURTON. This question I have for Ms. Mills is irrelevant I

guess, because she says she doesn’t recall asking them to conduct

the search, but I’ll ask it anyway. Ms. Mills, the names that you

asked the technical people at OA to use in running the test searchs

were related only to the Lewinsky case, but you don’t recall that

at all.

Ms. MILLS. I didn’t ask anyone—I didn’t conduct or undertake

the technical search terms or provide the technical search terms,

that’s correct.

683

Mr. BURTON. Given the nature of the Lewinsky search, how could

it have told you that there wasn’t a broader, larger universe of potentially responsive documents?

Ms. MILLS. To whom are you directing your question?

Mr. BURTON. You and Mr. Ruff.

Ms. MILLS. I didn’t understand or appreciate that there was a

broader problem. From my perspective, I thought we were collecting the e-mails that had been captured. So what we were looking

at then was the e-mails that potentially might have been missed

and that needed to be produced if they had been missed.

Mr. BURTON. So you didn’t know about a broader universe of documents.

Ms. MILLS. Correct. It was not my impression that there was a

broader universe of documents.

Mr. BURTON. Mr. Lindsay came to see you, Mr. Ruff; and when

he came to see you he told you that there was a broad problem

with the e-mails, not just restricted to the Lewinsky matter. I

mean, he had to tell you that because he knew that the e-mails

since September 1996 hadn’t been captured. And so my question is,

if you knew there was a broader universe, why—— Mr. LINDSAY. Excuse me, Mr. Chairman. It was not that there

were—all e-mails. We’re only talking about incoming e-mails,

which is a very much smaller—— Mr. BURTON. It was 248,000 that we know of. In any event—— Mr. LINDSAY. We don’t necessarily know that, sir.

Mr. BURTON. When he brought to your attention that there was

a broad array of e-mails that were not captured, you knew it went

beyond the Lewinsky matter. Why wasn’t the whole thing looked

into instead of limiting just to the Lewinsky matter?

Mr. RUFF. Mr. Chairman, my view of the problem, as best I recall it coming out of my meeting with Mr. Lindsay and subsequent

events, was indeed there may have been a problem and it may indeed have affected our past compliance with subpoenas. Once—as

I’ve indicated in my interview with the committee counsel—once it

turned out that the Lewinsky e-mails had, in fact, all been collected, the incoming Lewinsky e-mails had been collected, it was

my view, whether mistaken or not, that indeed the problem Mr.

Lindsay had described to me had not affected our capacity to collect

and produce documents.

Whether that was my technical ignorance or whether it was a

misunderstanding of the problem, what I represent to you, as I

have previously, is that at the point where the word came back to

me that the Lewinsky e-mails had in fact been collected and it

turned out they were duplicative of what we had already found, I

believed that the problem did not, in fact, retrospectively affect our

compliance.

Mr. BURTON. It just mystifies me. Mr. Lindsay had to give you

a complete analysis of the problem. That was his charge. He had

to tell you that there was e-mails that weren’t captured in a broad

array of areas. And you recall it being confined to the Lewinsky

matter. You recall that.

Mr. RUFF. No, Mr. Chairman, that’s not what I’ve said. What I

said was that I came away from my discussion with Mr. Lindsay

recognizing that there was a problem, that my focus initially was

684

on the Lewinsky subpoenas because those were the ones of the

most immediate and practical concern to my office. That when the

report came back to me that indeed the Lewinsky subpoenas had

pro—that our search in connection with the Lewinsky subpoenas

had produced the same documents that had been found in this email search I believed that the problem did not in fact adversely

affect our past searches.

Mr. BURTON. Well, my time is expiring. I will have to yield to

Mr. Waxman. But I have to tell you that it just stretches credulity

to believe that Mr. Lindsay would come to you, tell you about the

problem, Mrs. Mills doesn’t remember whether she was in the

meeting, he doesn’t remember whether she was in the meeting, he

doesn’t remember whether he made a phone call to talk to the Northrop Grumman employees who were threatened. Nobody remembers anything. You don’t remember, she doesn’t remember who ordered the search or how broad the search was. You know, I hope

whoever is paying attention to this realizes that we have a lot of

people in the White House that simply don’t remember anything.

Mr. Waxman.

Mr. WAXMAN. Mr. Ruff, Ms. Mills, Mr. Lindsay, thank you all for

being here today.

This is the 4th day of hearings we’ve had in this committee on

this missing White House e-mails, and during these hearings our

chairman and other Republican Members have made some extremely strong allegations. They’ve alleged that the White House

threatened individuals if they disclosed the e-mail problem, they

have alleged that the White House deliberately covered up the email problem, and they’ve alleged that the White House obstructed

justice by knowingly failing to disclose that the White House had

potentially responsive e-mails that hadn’t been searched in response to subpoenas. So I want to ask you about these allegations.

These are very serious allegations that have been made.

Now let’s look at the first one. The first one is that once the email glitch was discovered the White House threatened outside

contractors who discovered the problem with jail if they told anybody about them.

For example, Representative Chenoweth-Hage, who is a member

of our committee, said in an open hearing, ‘‘Evidence suggests that

contracted staffers were personally threatened with repercussions

and even jail should they mention the very existence of the server

problem to anyone, even their bosses. This occurred while these emails were under subpoena. This is inexcusable. This is criminal.

If this is not obstruction of justice, I don’t know what is. If one

were to apply the standard of an ongoing criminal conspiracy, the

White House fits it.’’

Now that’s the allegation that was made in one of our previous

hearings.

Mr. Ruff, you’ve had a distinguished career in public service. You

have been a member of the U.S. Attorney’s Office for the—you were

the U.S. attorney for the District of Columbia, president of the District of Columbia Bar, corporation counsel for the District of Columbia, White House counsel. Your reputation for integrity is, I

think, untarnished. I want to ask you about this allegation that

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was made. Did you ever threaten anybody with jail or in any way

if they ever revealed the e-mail problem?

Mr. RUFF. Of course not, Congressman Waxman. Neither I nor

anyone on my staff nor candidly anyone that I knew at the White

House would ever have made such a threat.

Mr. WAXMAN. Well, let me ask more specifically for the record,

you say you didn’t do it directly. Did anyone do it indirectly at your

behest to threaten anybody?

Mr. RUFF. Absolutely not.

Mr. WAXMAN. Did you participate in or have any knowledge of

any White House effort to threaten anyone?

Mr. RUFF. Absolutely not.

Mr. WAXMAN. Ms. Mills, let me ask you the very same questions.

Did you directly or indirectly or in concert with others in the White

House threaten anyone if they revealed the missing White House

e-mails that are the subject of this hearing?

Ms. MILLS. I did not.

Mr. WAXMAN. Well, the second allegation that we have to explore

is whether there was a concerted effort by the White House to

cover up the e-mail problem. For example, in our first hearing on

this matter, the chairman said the White House—and this is the

chairman’s statement in a public hearing—basically had two

choices: They could face up to the problem, tell the Justice Department and the Congress what happened and get it fixed, or they

could throw a blanket over the whole problem, ignore it and hope

nobody would find out. It looks like they chose to cover it up.

That’s the statement of the chairman.

Mr. Ruff, let’s hear from you about this allegation. Did you ever

cover up or attempt to cover up the e-mail problem from congressional or other investigative bodies?

Mr. RUFF. I did not, Congressman Waxman.

And let me just say in that regard that whatever the tensions

that existed in our relationship with this committee and indeed

with other congressional committees during the course of my tenure in the White House, we were on every occasion forthcoming

when we found something that had not been produced or where

there was a problem we brought it to the attention of the committee, we produced the documents.

I can tell you that members of my staff spent many an unhappy

hour with the staff of this committee explaining why indeed some

failure in our system had delayed the production of documents.

And rather than even suggest at any time that any member of my

staff or to my knowledge anyone else in the White House would

conceal a problem like this, to the contrary, we stepped forward, we

made our mistakes, if we ever committed them, known to the committee, and produced the relevant documents, and we did so as

quickly as possible.

Mr. WAXMAN. Ms. Mills, let me ask you about this issue of the

cover-up. Were you involved or do you have any knowledge of a

cover-up by the White House to keep the e-mail issue from the legitimate investigators that had subpoenaed the information and

didn’t receive it.

Ms. MILLS. Absolutely not. I would like to echo Mr. Ruff’s sentiments. He was always very clear about his position with respect to

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documents and materials that came to light later, after we believed

that we had been successful in capturing everything; and the clear

direction always was that we needed to produce them as soon as

possible.

Mr. WAXMAN. Mr. Lindsay, did you know about any cover-up or

were you part of any cover-up about these White House e-mails?

Mr. LINDSAY. Absolutely not sir.

Mr. WAXMAN. Then the third allegation that’s thrown around

quite loosely around this place is, the White House knew that it

had not produced all the responsive e-mails, but decided not to tell

Congress or the independent counsel.

Chairman Burton and others have alleged that this is obstruction of justice. For example, yesterday Representative Shays stated

that, the White House obstructed justice and we’re trying to see

who did it. That was his statement at a hearing.

Mr. Ruff, let me ask you about this allegation. Were you aware

at any time that the White House possessed responsive e-mails

that it had not produced to investigators in response to subpoena.

Mr. RUFF. Mr. Congressman, the answer to that question is in

essence the same as the previous one. I took and I know that members of my staff took whatever steps we believed were necessary to

uncover the existence of a problem. If we believed one existed, and

that includes the e-mails, we would have done something to deal

with it. Never, not once, did anyone on my staff seek to conceal,

delay production of or otherwise cover up any document production

whether it be electronic or paper.

Mr. WAXMAN. What about you, Ms. Mills, did you participate or

did you know of any White House cover-up about these e-mails?

Ms. MILLS. I was not aware of any cover-up with respect to the

e-mails and do not believe that that would have occurred.

Mr. WAXMAN. Mr. Lindsay, do you have any knowledge of any

cover-up?

Mr. LINDSAY. I have no knowledge of any cover-up and nor would

I have participated in any one if there was one that existed.

Mr. WAXMAN. Mr. Ruff, I want to walk us through a chronology

of what you know about the e-mail computer glitch from your perspective.

When did you first become aware that there was a potential email problem?

Mr. RUFF. I first became aware it was when Mr. Lindsay met

with me in June 1998.

Mr. WAXMAN. And what was your understanding of the scope of

the problem?

Mr. RUFF. My understanding of the problem at that point was

that there had been a technical problem, that indeed incoming emails may not have been collected during a period of time that extended back beyond the date of our meeting, and that indeed it was

going to be necessary to determine; particularly in the context of

the Lewinsky subpoenas, whether in fact we had collected all the

documents that were in existence.

Mr. WAXMAN. And what did you do after you became aware of

this?

Mr. RUFF. As I’ve indicated in responding to the chairman’s questions, I do not recall what specific conversations I had, but I know

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that efforts were undertaken to shape a tasking for the Office of

Administration to inquire into whether the Lewinsky-related emails had in fact been encompassed in and collected by our previous search.

Mr. WAXMAN. And did your staff report back to you after the

problem had been explored?

Mr. RUFF. They did. It was reported back to me that, in fact,

after searching pursuant to the directions to the Office of Administration, the e-mails that had been found were duplicative of what

had already been produced to the independent counsel’s office.

Mr. WAXMAN. So as far as you knew, these e-mails had gone to

the investigators?

Mr. RUFF. That’s correct, Mr. Congressman. And further, I extrapolated from that, whether accurately or inaccurately, that the

problem that had been described to me did not indeed have an adverse effect on our compliance with earlier subpoenas.

Mr. WAXMAN. When did you learn that the e-mail problem may

in fact have affected this document production?

Mr. RUFF. Candidly, I wasn’t aware of that until it surfaced in

the newspapers earlier this year.

Mr. WAXMAN. Were you at the White House counsel’s office then?

Mr. RUFF. No, I wasn’t.

Mr. WAXMAN. The Republicans have alleged that you or your office participated in covering up evidence of these missing White

House e-mails, but in fact you have a track record in this area; you

referred to it a few minutes ago. On several occasions during your

tenure at the White House counsel’s office, you or your office discovered that relevant evidence had not been turned over to Congress.

Mr. RUFF. That’s correct.

Mr. WAXMAN. Maybe it hadn’t been completely turned over to

Congress. I want to ask you about some of those specific incidents.

In October 1997, your office learned that the White House communications agency had videotaped certain White House coffees,

but it had not provided them to the Congress. What did you do

after you found this out? Did you try to cover this up or did you

promptly disclose it to the Congress?

Mr. RUFF. Congressman Waxman, I think the staff of my office

who were involved in it will tell you that they worked literally 24

hours a day once we discovered the existence of this problem, produced those videotapes both to this committee and to Senator

Thompson’s committee; and I think the record is absolutely clear,

both here and in the Senate, that that failure of production was

originally a product of a technological or logistical snafu, had nothing to do with anyone’s efforts to cover up those videotapes.

Mr. WAXMAN. Well, it’s so interesting that this is similar to the

issue before us today. Because what you’re telling us, that immediately after you found out there was a problem you responded, got

the documents produced, sent them to the Congress, you disclosed

the existence of the videotapes, and you did the right thing.

Mr. RUFF. I like to think so, Mr. Congressman.

Mr. WAXMAN. Do you know what the response was from Members of Congress?

Mr. RUFF. Many of us lived through that response, yes.

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Mr. WAXMAN. Well, Chairman Burton went on CBS, Face the

Nation, and he said, ‘‘Some of the tapes were cutoff very abruptly,

and then you go to another tape. We think maybe some of those

tapes have been cutoff intentionally. They’ve been altered in some

way.’’ So he made an allegation of cover-up and tape alteration, and

that was widely reported.

Then they were thoroughly investigated. This allegation was

made. We had an investigation. We found out that you turned over

these tapes, and we also found out they had never been altered in

any way. Our committee and the Senate Governmental Affairs

Committee failed to produce any evidence of tape alteration; and,

in fact, investigations produced compelling evidence that the tapes

had not been altered at all. And the further investigation revealed

that the reason the videotapes were not initially produced was due

to innocuous mistake. One page of the initial search directive faxed

from the White House counsel to the White House communications

agency had been misplaced. That page contained instructions that

would have resulted in a videotape search.

So you have an example where there was a snafu, you found out

about the snafu, you produced the documents, and rather than get

praised for producing the documents you were accused of a coverup. Then we had an accusation that the tapes were altered, and

it turned out they weren’t altered. We never have an apology for

the accusations that were incorrect, only a new one that comes

along.

Let me give you another one that was given. This committee investigated the White House data base. It’s called WhoDB. And this

followed the similar pattern. In October 1997, in the process of responding to a request relating to the WhoDB investigation, your office found several documents that were potentially responsive to

earlier requests. And within a week you turned these documents

over to the committee, noting that it was your policy to err on the

side of production.

This didn’t satisfy our committee. Representative McIntosh, who

led the WhoDB investigation, alleged that the initial failure to turn

over the documents was a Federal crime—obstruction of justice.

Mr. McIntosh referred Ms. Mills to the Department of Justice,

claiming that her actions regarding the documents at issue were

Federal crimes. The Department of Justice looked into the issue,

and they determined there was just no merit to these accusations.

I think, Ms. Mills, your statement this morning was a superb

one. We have to be reminded that we’re human beings, sometimes

we make mistakes. But we ought to recognize that making a mistake doesn’t mean that you’re guilty of a crime. And if you’re in

public service working for an administration and a President that

someone doesn’t like doesn’t mean that you’re a criminal for being

part of that administration.

And we have a track record on this committee. We have a track

record of wild allegations that are made smearing people’s reputations. When you are accused of perjury or when Mr. Ruff is accused

of obstruction of justice or Mr. Lindsay accused of threatening people and it turns out none of it’s true, one, the press doesn’t catch

up with the facts of the original allegations, they’re already in the

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paper. And then there are new allegations to take their place, and

those new allegations get the headlines, not the facts that clear everybody up. Now it’s not an enviable track record that we have on

this committee to have unsubstantiated allegations of cover-ups,

and I fear that’s exactly what’s happening today.

Now, Mr. Burton focused in his questioning about whether you

took this issue seriously enough and whether someone was in

charge or who was in charge. It sounds like some of these things

in the specifics you can’t recall. I suppose if you had it to do over

again, you might have kept better track of who was doing what.

But I suppose you had a lot of other things going on during that

time as well.

This isn’t the only committee that’s bombarding you with subpoenas. The President was under investigation, the Senate and the

House were looking at impeachment charges, and every opportunity that Members of the Republican leadership in the Congress

had, they wanted to hold another investigation.

In retrospect, Mr. Ruff, do you think you would have been better

off if you kept better track of who was doing what about these

White House e-mails?

Mr. RUFF. I have no doubt in retrospect many events could have

been shaped differently and perhaps better. But I think—and I appreciate your comments, Congressman Waxman. I think the bottom

line for all of us in the White House counsel’s office is that we did

our best. We did our best to act professionally and ethically and responsibly. And if in fact we failed to do so in our efforts to do it,

it was by inadvertence and not by intention.

Mr. WAXMAN. It’s clear to me listening, to the testimony, there

is a lapse. But it seems to me an embarrassing lapse of trying to

remember who was doing what precisely is a lot different from

criminal conduct. And what we have are accusations trying to criminalize the failure to remember who specifically was working on

what in your office.

If there was no threat to anybody about the information, if there

was no cover-up about the information, if you did everything you

could do to get the information to the Congress and the investigators and to correct this technical problem, which was due not to

your actions but to the actions of the contractors, Northrop Grumman, who were supposed to develop a White House data base system that could pick up all the e-mails wherever they may come

from and, as far as you knew, were doing everything you could do,

even if you didn’t do everything that you wished you might have

done, that’s a bit embarrassing because you’re the one in charge.

But it’s not criminal conduct.

Mr. RUFF. I’m not happy, but willing to suffer the embarrassment, which may be justified to the extent that I failed adequately

to pursue or understand the matter. But, as you suggest, Congressman Waxman, and I think I speak here for not only myself but all

of those who worked with me, never, not once, would anybody on

my staff intentionally conceal or seek to cover up any misconduct.

Mr. WAXMAN. I thank you for that answer. You’re before a committee that never seems to acknowledge their mistakes nor be responsible for the embarrassments they have caused to others with

wild accusations. I have in my time——

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Mr. FORD. If you would yield.

Mr. WAXMAN. I yield to Mr. Ford to pursue some questions.

Mr. FORD. Thank you, Mr. Waxman, to the members of the committee. Let me also acknowledge another great patron and servant

in the Clinton administration, Mr. Bruce Lindsay, who I believe is

here with us this morning, and his daughter, who is a fine student

down in my district at Rhodes College and is a frequent phone companion as she is proud of what her dad is doing and trying to do

good work at Rhodes College. I think she is now back at home if

I’m not mistaken. We miss her in Memphis.

Let me thank also Ms. Mills for having the courage to come before this committee with her candor and frankness about how her

contributions in this administration and to contributions she’s

made to the public service arena over the years. As a member of

this committee who is young and who is proud to serve, I am proud

of the contributions you have made and relieved to hear that despite the torturous way this committee and members of this Congress, and I would say to my colleagues on the other side that you

ought to be embarrassed after listening to this young lady. It almost brought me to tears listening to you to describe how and

when you came into the White House at the tender age of 27, leaving at the age of 34, and despite all that you have been through,

the unwarranted impugning of your character and unjustified attacks on your integrity, you remain strong and resilient and I think

a better public servant after all that you have gone through. It’s

unfortunate you had to go through what you had to go through,

and I hope my colleagues on the other side of the aisle, when they

have the opportunity to talk, will apologize to you and apologize to

the young Americans that they might with their action and conduct, as despicable as it might have been, might not discourage

other young people from wanting to enter into public life.

So with that, Ms. Mills, I would also say in your comments you

said you felt that this was risking personal peril, be assured there

are those of us on this committee that won’t allow Dan Burton or

anyone in this committee for that matter to harm you any further

than they already have.

I would enter into the record if I could, Chairman Barr, I think

you’re in the chair now, it probably already has, but there’s been

references made to the McIntosh letter urging the Justice Department to bring perjury and obstruction of justice charges against

Ms. Mills. The May 6, 1999 letter from the Department of Justice

reads: ‘‘The Department has completed its review of your referral

of criminal allegations involving deputy counsel to the President

Cheryl Mills. After careful consideration and review of the materials submitted with your letter of September 17th we have determined that further investigation is not warranted and have declined prosecution.’’ I think it’s somewhat poetic that the author of

this letter was Ms. M. Faith Burton. I would imagine we won’t investigate if there’s any connection to our chairman. I would enter

all of this into the record if that would be OK.

[The information referred to follows:]

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Mr. FORD. Let me move to pick up where Mr. Waxman left off,

if you don’t mind, to all of our witnesses. One of the concerns that

I believe and would hope that all of us would have on this committee is the unbelievable costs that this is imposing on the taxpayer.

I know that Mr. Waxman requested a GAO study back in 1998 that

found in the 18-month period between October 1, 1996 and March

31, 1998, 21 Federal agencies reported that they had received more

than 1,100 campaign finance inquiries from Congress. GAO calculated that the cost of responding to these inquiries cost the taxpayers in excess of $8.7 million. I would point out to members of

the press and the committee that that does not include the $3 million that we spent on this committee investigating all of these,

some of them wild, allegations.

We learned yesterday and this morning in a very reliable Washington Times, after Mr. Lyle’s testimony, that going back—that the

total cost of the e-mail reconstruction could ultimately cost somewhere between $8 to $10 million. This is a large price tag I believe

for reconstructing incoming e-mails that we’re not even certain will

have significant relevance to the investigations.

Mr. Ruff, I’m interested in learning about who will have to foot

this bill. Will the taxpayers be paying for the MAIL2 reconstruction?

Mr. RUFF. Congressman, although I enjoyed my time in the

White House or at least most of it, I am at the disadvantage now

of being a private citizen, and I’m not sure that I can answer your

question officially, but I suspect, yes, indeed, the taxpayers will be

bearing that burden.

Mr. FORD. I ask that to sort of followup, Mr. Ruff, and I appreciate you even coming today being that you should not be put

through further harassment, but since you’re here, the evidence

this committee has received shows that the MAIL2 problem was

due to an inadvertent mistake by White House contractors.

Do you believe that the contractor or contractors that caused the

problem should be responsible for paying the cost of reconstruction?

And I would ask Mr. Lindsay, if he wouldn’t mind, to comment on

this issue as well.

Mr. RUFF. Congressman, I candidly am uncomfortable in trying

to respond to that question because I simply don’t know what the

facts of the case are.

Mr. FORD. That hasn’t stopped us, Mr. Ruff, but I appreciate you

responding. Mr. Lindsay, if you wouldn’t mind responding, sir.

Mr. LINDSAY. Yes. That is an option that we are in the process

of exploring and were in the process of exploring, but because of

the exigencies which were imposed by the request by the committee

and by other bodies, it was important for us to go ahead and move

forward. So the resolution of whether or not we can get any kind

of recompense back from the contractor is something that will have

to be determined later because of the exigencies imposed by the request by the committee.

Mr. FORD. Ms. Mills, excuse me, if I could come back to you for

just 1 second. You described eloquently the cost of this experience.

Would you mind just elaborating a bit the costs that were imposed

upon you by virtue of this committee calling you before us on so

many different occasions, both financial and other, briefly, if you

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wouldn’t mind. It’s good to see you this morning and you look great

by the way.

Ms. MILLS. Thank you very much. Well, I have legal fees that I

am still paying for lots of allegations that have been made against

me, and they’re my fees that I have to pay. Today I had a scheduled event with my company that I was supposed to be presenting

at as well as having a speech this evening that I was supposed to

be giving in New York City, both of which Mr. Burton explained

to me were insufficient and he could not indulge my schedule. So

in addition to that, certainly during my tenure in the counsel’s office, there were many occasions in which the personal toll I felt was

relatively high, and I’m grateful for having had the opportunity to

serve, but I also am enjoying quite nicely now being in the private

sector for the moment.

Thank you for asking.

Mr. FORD. Hopefully we can find a way to bring you back with

the next administration.

Mr. Lindsay, if I could come back to you for one moment. Chairman Burton has made some strong allegations regarding your conduct. He said at our March 30 hearing, which I regret that I was

not present at, that Mr. Lindsay and Ms. Callahan are accused of

doing something that is really wrong. They’re accused of trying to

intimidate people who work for them. He went on to assert or accuse that because you are a potential target of a Justice Department investigation of the e-mails matter, you had, ‘‘every reason to

give misleading testimony or to engage in selective memory loss.’’ I want to ask you a little bit about these allegations because I

think you’re being unfairly attacked. During our first hearing we

heard testimony from six current and former Northrop Grumman

contractors and subcontractors. They discussed a meeting that was

held with an OA career, and I take it OA means Office of Administration?

Mr. LINDSAY. Correct, sir.

Mr. FORD. With an OA career civil servant named Ms. Laura

Crabtree Callahan shortly after the MAIL2 problem was discovered

in June 1998. Several of them testified that you addressed the

meeting briefly by speakerphone. Now, you do not recall participating in that meeting over the phone or that’s correct, that’s my

understanding——

Mr. LINDSAY. That is correct, sir.

Mr. FORD. In fact, you have been harshly criticized by certain

members of the committee for not recalling this phone call, and I

digress for one moment. I would imagine that all of my colleagues

here in the Congress I would venture to say, I don’t know how

many of us, with the large number of calls that we receive a day

and the meetings we participate in, how many of us could pinpoint

the times and all the persons we might have spoken to in a day

and each and every person who might have been present in a meeting. We just got off a recess, as many of you know, and some, if

not all, of us went home to work, and I couldn’t tell you which staff

was present in certain meetings with the Port of Memphis or with

IBM officials or with labor officials or with school officials. I know

certain folks are assigned to those different areas, but I can sympathize and I would imagine some of the allegations that have been

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made against our chairman by lobbyists here in town, and I certainly wouldn’t engage in any smear tarnish attacks, that all of us

at times have this selective memory, to borrow his terminology, I

think just human. Humans forget when you might talk to folks,

and for us to pull up your day planner that day and show that Ms.

Mills’ name or whomever’s day planner we might have pulled up

to show that Ms. Mills’ name was on it at 4:30, I thought was

somewhat ridiculous and low-handed.

But notwithstanding that, it’s still not clear to me why it was to

your advantage to forget this call because not one witness has

claimed you made any threats at that meeting. One of the contractors, Bob Haas, I believe I’m pronouncing his name correctly, Mr.

Waxman, said that Ms. Callahan told him after you hung up the

phone that there would be a, ‘‘jail cell with his name on it,’’ if he

told his wife. Another contractor, Sandra Golas, and I hope I’m pronouncing Ms. Golas’ name correctly, testified that she remembered

the word, ‘‘jail’’ being used in the meeting but could not remember

who said it. Two other contractors who were present Mr. Salim and

Mr. Spriggs do not remember the jail threat or any other threats

being made, but no one suggests that you made any threats at that

meeting, Mr. Lindsay. If anyone doubts what I’m saying, and we

doubt each other in this committee often, all they need to do is go

back and look at the March 23rd transcripts.

Now one of the contractors, Ms. Betty Lambuth, did accuse you

of threatening her in a separate conversation, Mr. Lindsay. She

told us that she had a meeting with you and I believe a

Paulette—— Mr. LINDSAY. Cichon.

Mr. FORD [continuing]. Cichon—you knew I was going to have

trouble there—another OA official which you, Mr. Lindsay, told her

that if she or any of her team, ‘‘who knew about the e-mail problem

told anyone else about it we would lose our jobs, be arrested and

put in jail.’’ There’s a fundamental problem apparently with Ms.

Lambuth’s testimony.

It’s been flatly contradicted by the other person present at that

meeting, Ms. Cichon. She signed a written statement on March

29th in which she said that ‘‘at no time did I perceive Mark, Mr.

Lindsay, threatening Betty or myself. At no time was a threat of

jail mentioned or any other threat. If any threat were made I

would have certainly remembered it and would have taken the appropriate action and response. I did not take part in any other

meetings or conversations in which Mark or anyone else made any

threats.’’

That statement was introduced into the record by Mr. Waxman

at the March 30 hearing and Ms. Cichon has since confirmed her

statement in person during interviews with committee staff. This

is not the only time apparently that Ms. Lambuth has been directly

contradicted by other witnesses. I wish Ms. Lambuth was here.

During the hearing Ms. Lambuth also claimed that Mr. Haas examined the, ‘‘missing e-mails’’ and told her that they contained information relating to Filegate, concerning the Monica Lewinsky

scandal, the sale of Clinton Commerce Department trade mission

seats in exchange for campaign contributions, and Vice President

Al Gore’s involvement in campaign fundraising controversies. Bob

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Haas told the committee that Ms. Lambuth’s allegations were, or

her allegation, excuse me, was completely inaccurate. He said he

had no knowledge of any e-mails relating to Filegate, the sale of

Clinton Commerce Department trade mission seats in exchange for

anything or campaign contributions or Vice President Al Gore’s involvement in campaign fundraising controversies. And he said that

he never told Ms. Lambuth otherwise.

But unfortunately the facts don’t dissuade my committee members, particularly those on the other side. We have no credible evidence that you threatened anyone, yet the chairman and other

members keep repeating that you made jail threats and these

threats keep getting repeated in the newspapers. Unfortunately

you’re not alone in receiving this unfair treatment from this committee. Unfortunately your seatmate can speak to the same type of

treatments.

I introduce to the record as I prepare to yield back to my chairman, Mr. Waxman, GOP’s distrust of Clinton drives Congress’ agenda. You mentioned so eloquently, Ms. Mills, the issue that we

should be addressing here in this Congress. You even reminded

this chairman and perhaps suggested to him and members on the

other side that U.S. attorneys who sit on that side, former U.S. Attorneys, that perhaps we ought to investigate the way young African American men are being treated in New York and Los Angeles

and around this Nation. If we could find a way to link it to something that’s happening at the White House I think we’d probably

have better success in getting this committee to do that.

But I would only repeat the comments of a Republican Senator,

a dedicated war veteran in Senator Chuck Hagel, who is no real

friend of those of us liberals on this side, as we are sometimes labeled, and those of us who are hiding, obstruction of justice and

those who are perjurers, but Senator Chuck Hagel criticized his fellow Republicans for allowing their deep seeded suspicions of President Clinton to derail their own political agenda. Mistrust is the

common thread. It is my hope that in the midst of all of this,

Chairman Barr, Chairman Burton and others on the other side,

that we will remember that government’s about something bigger

and better than us, that we are dispensable to this whole system,

sir.

We, as Ms. Mills so eloquently said, have good days and bad

days, but I hope we would not take our bad days out on those who

disagree with us and who have visions and perspectives and biases

and prejudices that may be different than ours. Mr. Waxman is

going to be upset with me for taking all his time, Ms. Mills, but

I want to say one more time you were absolutely wonderful this

morning and I only wish that more of my colleagues could have

been here to hear you, and only hope that those of us that are here

will take the message back to our colleagues who did not get an

opportunity to hear your outstanding comments this morning.

Mr. Lindsay, I didn’t hear yours. I trust yours were great the

other day.

Mr. BURTON [presiding]. The gentleman’s time has expired. I’m

going to yield my time to Congressman Shays.

Mr. SHAYS. I thank the chairman. I’m sorry, I thought it was my

time. I apologize.

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Mr. BURTON. I’m going to, in the event you need more time, Mr.

Shays.

Mr. SHAYS. I just want to give you, Mr. Ruff and Ms. Mills and

Mr. Lindsay, a different perspective and it comes from my heart as

it comes from yours, Ms. Mills. I participated in the Hart hearings

a few years ago and the Pierce scandal, and I didn’t know that it

was my role then to defend the administration. I was a new Member so I went after just trying to find the truth, and so you had

Republicans and Democrats just trying to find the truth, not defending the witnesses, just trying to find the truth. I’ve learned, I

guess, that’s not the way it happens, and when Debra Gordene

came to that hearing and she declared—took advantage of her fifth

amendment rights all the Democrats in the committee were outraged that she would want to hide something, and I was outraged,

and so I thought when Members would come before this committee

that we would see that same outrage on the other side of the aisle,

and we’ve now had 79 House and Senate witnesses asserting their

fifth amendment.

Now they can do that and it may mean they don’t have anything

to cover up, but in my nonlegal way I begin to think there’s something behind that.

And when I read your statement, Ms. Mills, before you even delivered it, I became so incensed by the focus on you and not about

getting at this issue that I’ve written out a statement, and I’ve

written out the statement so I don’t say more than I need to say.

So, Ms. Mills, you’re not the only one disillusioned by this process. I have been pushed from disappointment to anger to outrage

by the pervasive ethical and moral minimalism of this White

House. Among the important issues you omitted from your list is

respect for law and the affirmative obligation of sworn officers of

the court to disclose material facts to properly constituted authorities. As much as you might not like it, this committee is such a

properly constituted authority. While undoubtedly deeply felt, your

statement conveyed to me a profound lack of respect for this constitutional process, and I’ll say unlike the profound respect that I

thought you showed to the Senate. It’s not enough for those in the

White House you defend to say no evidence has been found that

anyone intentionally sought to hide the e-mail system problems.

That’s far too low a bar to set for yourselves, to convince yourselves

prematurely the problem was minimal, to hide behind the expense

and difficulty of the reconstruction project, to delay any disclosure

of a problem until forced by negative publicity. All bespeak an ethical opportunism that allows by omission, if not by commission, the

obstruction of justice. For evil to prevail, it is enough for good people to do nothing. I don’t get the sense much was done by the good

people in the White House to confront the potential evil flowing

from the e-mail mess.

Now, I also remember some people at the White House. I remember Billy Dale and John Drellinger, John McSweeney, Barney

Brasseux, Gary Wright, Robert Van Eimeren and Ralph Maughan.

I remember them. They were in the White House and they got

fired, and then to defend their being fired the FBI and the IRS had

to take a good look at them.

697

And I was looking at an old article, and this may have been said

in jest, Mr. Ruff, I know it was said in jest, but it has an eerie feeling of strength to it. You were interviewed by Bob Woodward when

you, as the fourth and final prosecutor to Whitewater, acknowledging initially it had gone on too long—Watergate, excuse me, Watergate. This was an article written June 19, 1977, in your admitted

youth, and you were asked to kind of describe where you fit in in

all these committees that had done investigation. You thought you

would show up better than the Warren commissioner and some of

the other commissioners that had looked, and then I’ll read what

Mr. Woodward says. He says Ruff says there’s nothing he has done

to protect himself from a more hostile view of the work of his office.

If called to testify some day at such an inquiry; in other words, defending your committee’s work, Ruff says he knows just what he’ll

do, quote, I’d say, gee, I just don’t remember what happened back

then and they won’t be able to indict me for perjury and that

maybe that’s the principal thing I’ve learned in 4 years, I just intend to rely on that failure of memory.

I know you said it in jest, but the words you used to respond to

questions, I don’t recall, I don’t remember, I understood this is an

issue and so on and don’t remember if I was at a meeting. The

meeting, Mr. Lindsay, on June 19th, how many people were at that

meeting when you spoke to Mr. Ruff?

Mr. LINDSAY. I don’t recall, sir.

Mr. SHAYS. You don’t recall if there’s one, two, three, four or five?

Mr. LINDSAY. I remember that I talked with Mr. Ruff. I don’t remember if there was anyone else at that meeting.

Mr. SHAYS. Do you remember where you met?

Mr. LINDSAY. I’m fairly certain it was in Mr. Ruff’s office.

Mr. SHAYS. You remember it was Mr. Ruff’s office, you don’t remember if anybody else was in the office.

My time has expired. I’ll come back.

Mr. BURTON. Gentleman’s time has expired. Who’s on your side?

Mr. Kanjorski.

Mr. KANJORSKI. Welcome once again to a committee of the Congress. I suspect that you will have spent more time at committee

hearings of the Congress than most of the Members of Congress

after your respected service is done.

Ms. Mills, I’ve had the opportunity to look over your statement,

and unfortunately I wasn’t here when you delivered it because I

would have imagined it would have been most heart rendering to

hear your statements. I have had the occasion of watching your

service for 7 years in the White House, and I want to tell you that

there are Members of this Congress that appreciate what you’ve

dedicated to this country and to this President and that you have

done it honorably, and the fact that this Congress has been so frustrated with a dynamic Presidency that they did not expect or did

not think was warranted in the election of 1992, that a good many

years have been spent with the sole intent of creating an aura

around this President that he was not worthy of the job and was

not serving America. You know I got to thinking about it as we

went tediously through questions yesterday, and some of my colleagues on the other side, particularly the younger Members, may

not recall prior administrations, but in reality they have succeeded

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in creating a new definition for political life in America, and that

is accusations, charges, unsubstantiated and unproven, eventually

will become labeled as scandals, and we so often hear the media

now say another scandal when in fact it’s another unsubstantiated

charge.

And the purpose of this hearing some 7, 6 months before a new

Presidential election is because the majority of this Congress have

no other issues, and their hope against all odds is that the American people will be foolish enough to believe that charges alone represent substance and/or scandals in themselves when in fact we

know better as members of the bar.

The fact that you were called out of private service to come up

here and go over your memories and people on this committee respond with the idea that, oh, you should have an absolute perfect

memory, both yourself and Mr. Ruff, of every occurrence that happened in the throes of probably the second most historical act

against the Presidency, the last impeachment, is beyond me. I have

to think that you were all working 18 hours a day, 7 days a week

and were totally focused and committed to the immediate issue of

the trial and that you didn’t necessarily partake in checking out

every factor or every bit of information.

It is only too bad that because sometimes of the lack of technical

expertise of the American people and the appreciation of what the

new computer age is all about that this hearing would even be

here, the suggestion that oh, my heavens, there where e-mails that

were lost, isn’t that a shocking surprise in a perfect world, when

we know that the instrumentality of the computer is not perfect.

So, you know, as I listen to this testimony developed over these

2 days, I’m becoming frustrated with the Congress myself. I can’t

believe that we do not have more important issues as the only oversight committee of the House of Representatives. We have spent almost our full time for these many years in doing nothing but attempting to denigrate the reputation of those people that serve in

the executive branch of this government and the President himself

and have added nothing from this committee’s work that I’ve seen

over the last number of years of a positive nature.

What have we done to solve some of the problems like overexpenditures, fraud, misuse and abuse and Medicare? What have

we done to analyze the social security problems for the future of

the American people, which is all under the jurisdiction of this

committee, to oversight, what’s happening and anticipate what new

legislation is necessary to solve real problems of real people in their

real lives. Instead for pure partisan political purposes, there are

people on this committee and in this town that have now become

to believe that partisanship is a religion and it has to be practiced

to the fullest extent and in the purest nature, and they forget that

those of you that have tremendously talented lives that have come

to serve in this administration and perhaps lead the way for other

extraordinary people to serve future Presidencies have to stop and

think of whether they really want to do that to themselves, their

lives or their families or their personal fortunes.

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resented by counsel so that they could have said that they served

a President of the United States.

Mr. BURTON. The gentleman’s time has expired. We are going to

recess to the fall of the gavel. We have two votes on the House

floor, and then when we come back Mr. Barr will be the first questioner.

[Recess.]

Mr. BURTON. The committee will reconvene. Mr. Barr, you are

recognized for 5 minutes.

Mr. BARR. Thank you, Mr. Chairman. I hate to interfere with

that love fest that was going on earlier, but somehow I don’t think

that will come as a surprise. The fact of the matter is that at least

two of these witnesses and a third party, I don’t see the other Mr.

Lindsey here, he was here earlier, have in fact been found to have

engaged in criminal violations of Federal law by a Federal judge.

That is a matter of record, and the other side may not like it and

may be irrelevant to them, but in an order issued just recently, I

think the end of May this year, Judge Royce Lambeth found that

Mr. Ruff, the other Mr. Lindsey and Ms. Mills in March 1998 engaged in discussions and advised the President to release the Kathleen Willey letters in violation, clear, knowing violation of the Privacy Act.

So for people to wander around in this Alice in Wonderland funk

and say that nobody has done anything wrong here and how dare

anybody impugn anybody’s reputation, I’m not citing Robert Kennedy, I’m not citing Mr. Waxman, I’m not citing Mr. Burton, I’m

not citing myself, I’m citing Judge Royce Lambeth. So let’s get real.

There are some serious problems here. This is the sort of conduct

that concerns us.

Now, with regard to the issue immediately before us, which relates to hundreds of thousands of e-mails subject to lawful subpoena by at least two committees of this House of Representatives,

the Judiciary Committee conducting an inquiry of impeachment,

which again some people may find irrelevant, funny, inconsequential. I know you all don’t because y’all participated in it and have

very high regard I presume for the process through which we went.

It is very serious. The information contained in the hundreds of

thousands of e-mails that have not yet been searched were also

subject in large part, in large measure to subpoenas issued by the

Office of Independent Counsel, again an office that y’all may not

like, y’all may not like the individual who headed that office, Judge

Kenneth Starr, but the fact of the matter is that there were lawful

subpoenas that were issued that related to the subject matter of

these hundreds of thousands of e-mails that y’all knew had not

been searched and had not been reviewed in order to ensure a full,

complete and timely compliance with subpoenas lawfully issued

and which were not subject to any defense for noncompliance.

Mr. Lindsay, you testified when you appeared before this committee a number of weeks ago that pursuant to a search of some

of the computers conducted by Mr. Robert Haas that a significant

number of e-mails, about 1,000 I think you testified to, were in fact

retrieved from this universe of e-mails out there that you all knew

were not subject to retrieval, had not been reviewed, had not been

retrieved, and you testified that in July 1998 you took that relVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00707 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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atively small batch of e-mails, about 1,000 that he had printed out

pursuant to his search of the computers themselves, the hard disks

I believe, over to the White House counsel’s office. Do you recall

that testimony?

Mr. LINDSAY. The characterization as to the general population

of the e-mails, of that e-mail sampling that you’re referring to was

taken from, I did not make any comment as to the general population. I do not know now and I did not know then—— Mr. BARR. That’s fine. I’m not quibbling over how many. I know

that anything you say is like pulling teeth to get you all to say anything, I realize that, and we’ll just sort of take judicial notice of

that. These are the e-mails here. This is about I’d say, what would

you say, counsel, about 1,000?

Mr. WILSON. It’s certainly at least that.

Mr. BARR. And counsel, these are a copy of the e-mails retrieved

by Robert Haas pursuant to and as he testified in mid-1998 to determine the scope of the problem that was being faced; is that correct?

Mr. WILSON. Correct, the White House produced these 2 days ago

to us.

Mr. BARR. OK. Is this the material, and I know you can see them

so obviously I’m not going to ask you to testify as to what’s in

them, but is this approximately the size of the materials, the number of pieces of paper you took over, as you testified earlier under

oath, to the White House counsel’s office in July 1998?

Mr. LINDSAY. I did not count them when I brought them over.

Mr. BARR. I know you didn’t count them. I’m not asking you to

count them. I said approximately. That’s why I used that term.

You’re not going to be held to a specific number.

Mr. LINDSAY. Some number that approximates that.

Mr. BARR. OK. And at that point your memory utterly failed you,

according to your testimony last time, you have no recollection at

all of who you gave these some—and there is approximately 1,000

documents in here, I’m not asking you to verify that. Reflecting

back and looking at this fairly significant amount of documents,

does that jog your memory, your recollection? Do you recall at this

time who you gave those documents to in the White House counsel’s office in July 1998?

Mr. LINDSAY. No, I do not, sir.

Mr. BARR. Did you receive them, Mr. Ruff?

Mr. RUFF. I don’t believe so. I have no recollection of receiving

them, Mr. Barr.

Mr. BARR. Did you receive them, Ms. Mills?

Ms. MILLS. I did receive a batch of e-mails that were—that represented the search that had been conducted. I did not receive

them from an individual other than my assistant, but at that point

what we did was forward them to another associate counsel to review them to determine whether or not they were in fact duplicative or whether or not they were not and had not been captured

in a prior search.

Mr. BARR. Are you satisfied in your mind——

Mr. BURTON. Mr. Shays has time. I think he’s going to yield to

you and I’m going to yield to Mr. Shays.

Mr. SHAYS. I am happy to yield to the gentleman.

701

Mr. BARR. Are you satisfied in your mind that we are all talking

about the same documents here?

Ms. MILLS. As I haven’t seen those documents, I don’t know

what’s in those documents. I’m not in a position to be able to answer you correctly or honestly as to those documents.

Mr. BARR. You’re always in a position to answer me honestly I

would hope.

Ms. MILLS. Not honestly with respect to whether or not they’re

the same documents that I got. I don’t know.

Mr. BARR. And I’m not asking about these specific documents.

What I’m simply asking is about the documents to which we’re referring, in other words, a batch of documents, e-mails, hard copies

of e-mails printed out that were transmitted personally by Mr.

Lindsay to the White House counsel’s office, as he’s testified to in

prior appearance before this committee in July 1998.

Ms. MILLS. OK. I was not aware that he personally provided the

materials, but I know that the e-mails came to our office.

Mr. BARR. OK. And who conducted the review of those e-mails?

Ms. MILLS. Shelly Peterson, who’s an associate counsel in our office.

Mr. BARR. And what conclusions did—is that Mr. or Ms.?

Ms. MILLS. It’s a Ms.

Mr. BARR [continuing]. Did Ms. Peterson arrive at concerning

those e-mails and whether or not they were subject to any of the

subpoenas that had been served on the White House?

Ms. MILLS. Ms. Peterson, to my understanding, reviewed the documents to determine whether or not they were duplicative with respect to documents we had produced or whether or not there were

in fact new documents that were there that had not been produced.

Mr. BARR. And?

Ms. MILLS. She concluded that the materials were duplicative of

materials that had been previously been produced.

Mr. BARR. In other words, they were identical in every regard,

every single respect to documents that had already been furnished

to the folks who had—whatever entity had issued the subpoenas?

Ms. MILLS. Without addressing the characterization of your question, it was my understanding that these e-mails were duplicative

and had in fact been produced.

Mr. BARR. And therefore who made the determination not to

send those documents to the authorities that had subpoenaed

them?

Ms. MILLS. Well, the authorities that had subpoenaed them had

them.

Mr. BARR. Did you ask them if they had them? You made the determination that they did or Ms. Peterson did?

Ms. MILLS. Well, when we do a document production we then

keep a copy for ourselves of what we sent to the individual that’s

requesting.

Mr. BARR. Let me make you all aware of a problem that we ran

into yesterday, which is one reason why we’re trying to ask very

specifically about duplicative records, for example. We had print

copies of e-mails and I think you all may have them, for example

exhibit 81, which is an e-mail that had a blank in it, and it appeared as if there was some information missing from it. Now Mr.

702

Heissner, the author of that particular e-mail, testified to, and I’m

not saying whether it’s accurate or not, he testified that the e-mail

that was presented to us, which is exhibit No. 81, was identical

with another e-mail that might be found if we went back and

searched the backup records for the ARMS system, although it

might appear differently because the way he printed it out didn’t

pick up some of the graphics in it. It might have listed things a

little bit differently, the spacing might have been different, so

forth. In other words, you can take two documents that have the

same information on them, but it might be formatted a little bit

differently.

As a trained attorney you would recognize certainly the way information is formatted might have a bearing on the accuracy of the

information, how it’s interpreted, would you not?

Ms. MILLS. Well, I think that what you’re asking is when you

asked as to or question whether or not they’re identical or not, I

obviously did not conduct the review but it is my understanding

Ms. Peterson went through the materials and made the determination that these were duplicative of materials that had been produced.

Mr. BARR. What would be the legal theory under which you

would not or the ethical theory or the practical theory under which

you would not just go ahead and send them in overabundance of

caution just to make sure that there was no problem, that you

would have this batch of documents and say, well, these are subject

to subpoena, it may very well be that some of these or maybe all

of these in one form or another have been transmitted but they are

subject to a lawful subpoena and then we’re just going to go ahead

and send them? Wouldn’t that be the more prudent, more ethical

course of conduct?

Ms. MILLS. Well, one thing we are obviously cognizant of is how

much paper and materials everybody is getting. So to the extent

that——

Mr. BARR. Y’all are looking out for the taxpayers.

Ms. MILLS. No. Actually I wasn’t going to say that but obviously

that’s something to be thoughtful about as well. So I appreciate you

making that observation as well. But to the extent that there are

materials that we’ve already sent individuals, it’s probably challenging to send them more to think that potentially they’re getting

something that they don’t already have, and so in this instance because Ms. Peterson was able to determine that these materials

were duplicative there was no reason to send them another copy

of materials that they had.

Mr. BARR. Who reviewed or approved her decision?

Ms. MILLS. Well, we have no reason—I mean I don’t know how

to answer that question. I mean, Ms. Peterson has the skills and

the ability as a trained attorney.

Mr. BARR. The answer would be nobody.

Ms. MILLS. Well, she certainly conducted her research and went

through and did it in a fashion that would be consistent with what

we understand to be or——

Mr. BARR. I know Mr. Waxman is getting antsy over there. We’ll

save the questions for additional time.

703

Mr. BURTON. That is fine. Mr. Waxman, I would like to remind

you that when you had 30 minutes I let you guys run over almost

4 minutes, but we’ll give you your 5 minutes now.

Mr. WAXMAN. Your generosity overwhelms me. We’ve had Mr.

Barr with two 5-minute segments, and the rules of the House entitle me to have my 5 minutes and I want to have my 5 minutes

now. I’d like the clock started over again.

Mr. BURTON. You’re getting your 5 minutes, Mr. Waxman.

Mr. WAXMAN. Mr. Lindsay, I’d like to revisit some of your testimony about your understanding of the MAIL2 problem.

Mr. LINDSAY. Yes, sir.

Mr. WAXMAN. I think you were pretty clear when you testified

about this previously, but there seems to be some misunderstanding about it. You said that you were informed about the MAIL2

problem in June 1998 and after you were informed about it, you

promptly informed the White House counsel’s office. You then assisted in a search for e-mails relating to Monica Lewinsky and that

you had this to say about the search, ‘‘I believed the non-ARMS

managed e-mails were searched. I now understand though that I

did not understand it then that the backup tapes containing the emails may never have been searched.’’

Later you heard back from the White House counsel’s office that

the Lewinsky search had produced only duplicates of e-mails already turned over, and this led you to think, again your words, it

probably isn’t that big of a problem because this information has

already been produced, end quote. So you concluded that there may

not be a legal problem in terms of whether or not documents were

produced, but I still had a problem, and that was I still had a technical staff that reported to me that there was a glitch. Even if that

test came back in a positive way, I may have not had a production

problem but I had a technical problem because my e-mail system

and my ARMS system and how they worked together, that was the

issue I needed to resolve. That was again your statement.

I think your testimony’s pretty clear on this point. You were concerned about the problem initially. You notified the White House

counsel’s office, and when they informed you that the problem had

not affected document productions, your concerns were put to rest.

The concern that you did have was that for reasons relating to the

Presidential and Federal Records Act you still needed to reconstruct and archive the missing e-mails, but this was not a high priority and since you knew that you would have time to do that for

archival purposes later.

Is that an accurate statement, Mr. Lindsay?

Mr. LINDSAY. Yes, it is, sir. It’s important to know also that we

are in the process of conducting reconstruction for years of e-mails

from the Reagan administration, the Bush administration, from the

early Clinton administration. So the process of reconstruction is

one that—was one that took many years and people in the committees and whatever were familiar with the fact we were conducting

those activities.

Mr. WAXMAN. Mr. Lindsay, yesterday the chairman accused the

White House of trying to delay the reconstruction of the MAIL2 emails until after the election in November. He said that the White

704

House was trying to, quote, run out the clock. Is that accusation

accurate?

Mr. LINDSAY. It is absolutely not correct, sir.

Mr. WAXMAN. What has the White House done to ensure that the

e-mails are reconstructed and produced as soon as and as efficiently as possible?

Mr. LINDSAY. When I met specifically and gave direction to my

staff, my instruction to them was that they were to conduct the reconstruction as quickly as possible in accordance with the request

by this committee and by other bodies to have this work done as

quickly as possible. I told them to conduct that and to essentially

give me a schedule for production or reviewing these materials and

making sure that they were reconstructed on a 24-hour, 7-day a

week schedule if necessary to make sure that it was done as quickly as is humanly possible.

Mr. WAXMAN. And when do you anticipate making these e-mails

available to our committee?

Mr. LINDSAY. It is going to be completed on a rolling basis, but

I believe in the June timeframe will be the first time we’ll be able

to produce some information from the reconstruction process.

Mr. WAXMAN. So rather than delaying production, you’re going to

turn over documents as you produce them?

Mr. LINDSAY. Absolutely, and as a matter of fact many of the

contractors that we tried to get to do this work protested by the

fact that what we were doing was such an ambitious and such a

speedy schedule that they declined to participate and to even bid

for the contract.

Mr. WAXMAN. Just so we have this very clear, my understanding

is that the reconstruction project is scheduled to be completed by

Thanksgiving. That does not mean, however, that the reconstructed

e-mails will not be produced until Thanksgiving. Document production will begin long before then. All that it means is that the final

stages of the e-mail project which involve putting the reconstructed

e-mails into ARMS for archival purposes will be completed then.

The actual reconstruction of the e-mails, the placing of those emails into a searchable data base and the production of e-mails to

our committee will begin well before that date and well before the

election.

Is that an accurate statement?

Mr. LINDSAY. That is true, sir.

Mr. WAXMAN. I just think that ought to be clear to everybody so

we don’t keep on hearing these accusations.

One more point, I understand that decisions about what materials will be produced first will be made by the White House counsel’s office in consultation with our committee and other investigative committees; is that correct?

Mr. LINDSAY. I believe so, sir.

Mr. WAXMAN. Thank you.

Mr. BURTON. The gentleman’s time has expired. We were told

initially that probably the e-mail problem, in compliance with our

subpoenas, would be handled by September, and yesterday we were

informed that it would be the Monday before Thanksgiving, which

is after the election. The White House counsel’s office I’m sure will

be the one that will be charged with the responsibility of giving us

705

e-mails as they are produced, and the reason I made the statements I did yesterday was because of the track record of the White

House counsel’s office in complying with subpoenas and working

with this committee to get the facts out to the American people. So

I don’t believe I misspoke yesterday.

I’ll believe we’re getting the e-mails in an orderly fashion when

I start to see them rolling off the presses, coming through the counsel’s office and given to us. Up to now we have not seen that kind

of cooperation from the White House counsel’s office going back to

Mr. Ruff, and I will now yield to Mr. Barr. Excuse me, Mr. Barr.

Did you want the time, Mr. Barr?

Mr. BARR. Thank you, Mr. Chairman. One of the—this is just one

subpoena that I know you are all familiar with. It’s dated September 15th or September 1, 1999. It is a subpoena duces tecum from

this committee addressed to the Executive Office of the President,

Cheryl D. Mills, and it simply has an attachment that subpoena is

returnable 2 weeks later, September 15, 1999. It has attached to

it schedule A, which is two pages of very standard language, and

that’s really what I wanted to ask you all about, and then a third

page of schedule A which has to do with the specific subject matter

of the subpoena, in this case, the Puerto Rican terrorists.

If y’all would glance at the first two pages, please, of schedule

A, which is the definitions and instructions, and if y’all could let

me know if that has been y’all’s view of standard language which

accompanies subpoenas duces tecum in order to identify in very,

very broad terms the types of information that are covered by the

subpoena.

Mr. Ruff.

[The information referred to follows:]

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Mr. RUFF. Let me just note initially that September 15th is

about a month and a half after my departure from the White

House, but without having had the opportunity to either read it

carefully or to compare it with other subpoenas from this committee, it appears on its face to be comparable to similar documents

that the White House received during my tenure.

Mr. BARR. Thank you. Ms. Mills.

Ms. MILLS. I agree.

Mr. BARR. The language, and I might ask counsel, Mr. Wilson,

is the language contained in the first two pages of schedule A what

is referred to in the legal profession as boilerplate language?

Mr. WILSON. Yes, it is.

Mr. BARR. OK. In other words, this is standard language that

would be included in subpoenas duces tecum in order to ensure to

the greatest extent possible that the recipient of the subpoena has

to comply and look for all copies, all versions of various documents

or records? In other words, this language is intended to reach as

broadly, not as narrowly, as possible?

Mr. WILSON. That’s correct.

Mr. BARR. Would it also be counsel’s understanding of the law

and the practice of the Congress certainly in issuing subpoenas

duces tecum that when a subpoena duces tecum such as this one

before us, and I would ask unanimous consent to include this in

the record—— Mr. BURTON. Without objection.

Mr. BARR. Are such subpoenas duces tecums and the language

contained in schedule A, which is standard boilerplate language,

are they intended to reach all different copies of something that

might contain the subject matter, the substantive subject matter,

relate to the substantive subject matter of the subpoena itself?

Mr. WILSON. Yes, the language is intended to reach different copies.

Mr. BARR. And in this case, for example, it’s my understanding,

and if you would confirm this, please, Mr. Wilson, that this subpoena issued in September 1999 would have covered—was intended

to cover what we now know to be e-mails that were not furnished

to the committee because they were among those many thousands

that were not captured in the ARMS system?

Mr. WILSON. Yes, it was. If I could explain one thing very quickly, though, there have been times when the White House has come

in and explained to us that there are certain categories of documents that they will not produce, for example, newspaper clippings,

and sometimes we’ve made agreements. They’re generally reduced

to writing and it’s known in advance. So that’s a very important

thing to understand, that sometimes there are things committed to

paper in advance of the production of documents.

Mr. BURTON. The gentleman’s time has expired. Mr. Kanjorski.

Mr. KANJORSKI. I have no questions.

Mr. BURTON. Mr. Kanjorski passes. Mr. Ford.

Mr. FORD. I took up all of Mr. Waxman’s time. I will be happy

to yield to him. I don’t have any further questions.

Mr. BURTON. The gentleman passes. We’ll now go to Mr. Shays.

Mr. SHAYS. I’m happy to yield to my time to allow the gentleman

to finish.

712

Mr. BARR. Thank you. If I could engage counsel a little bit further, given his familiarity with the procedures of this committee

and his knowledge as counsel generally with regard to subpoenas

issued by a committee of the Congress to the executive branch,

would it satisfy the committee—would it satisfy you as counsel for

the committee that some documents but not all documents were

searched in order to ensure compliance with this lawful subpoena

issued by this committee?

Mr. WILSON. Absolutely not.

Mr. BARR. And why is that?

Mr. WILSON. Well, there is the expectation, unless there is something communicated to us to the contrary, that all available sources

of documents are searched, and something I might point out, to

this day the White House has not communicated to us that they

have not done that. The e-mail problem that we’re talking about

today, they have yet to communicate to us that they have not

searched in the backup tapes for material responsive to the various

subpoenas issued by the committee.

Mr. BARR. Mr. Chairman, just a few moments ago in questioning

of the witness I showed this very large, and I know that in dealing

with this administration that one always has to qualify and I know

these things are all relative, but this very large batch of e-mails,

and I have just leafed through them since we’ve not had time to

go through them in detail, and I assume the independent counsel’s

office will be going through them in some detail, but contained in

here are e-mail after e-mail after e-mail concerning or from or to

Monica Lewinsky clearly which would have been covered by various subpoenas that had been issued. We also have the subpoena

duces tecum that I’ve introduced into the record here which is one

of many issued by the committee in this case regarding another

very important matter before a duly constituted committee of the

Congress and that is the pardons granted by the President to Puerto Rican terrorists.

And in one case, the case of the Lewinsky materials which were

subject to subpoena by the independent counsel and the Judiciary

Committee in its impeachment inquiry, we know that there are, at

least on simply one particular day that these records were searched

by Mr. Haas, approximately 1,000 documents that were never furnished to the impeachment committee or apparently to the independent counsel. And as I say, I think that from what I read in

the newspapers is certainly something that is of concern to the

independent counsel; that is to say, nothing about all of the other

days that were not searched and all of the other individuals whose

names were not queried of the computer. This is just, I believe, one

or two names, actually Raines and Monica Lewinsky.

And in the case of the Puerto Rican terrorist question, we don’t

know at this point how many documents were not searched, and

therefore, we’re not even at the point where we have somebody saying somebody else at the White House did look at these and please

trust us, they said they were all exactly identical.

So I think there are a lot of very, very important unanswered

questions here, and as I said yesterday at the hearing, I appreciate

very much, Mr. Chairman, your going into these matters, and

713

hopefully at some point in the not too distant future we will have

better answers than we’ve received so far.

Mr. BURTON. Thank you, Mr. Barr. Mr. Shays, do you wish to

have the rest of your time or do you want to yield it back right

now?

Mr. SHAYS. I’d like more time, so I’ll start now.

Mr. BURTON. Go ahead.

Mr. SHAYS. Thank you.

Getting back, Mr. Lindsay, you learned about the letter 2 problem—Mail2 problem in June. And you thought this was a serious

problem or you didn’t think it was a serious problem?

Mr. LINDSAY. When I was first told about the problem, I did not

know the breadth or scope of the issue. My instruction to my staff

was to investigate and conduct a review to try and identify the

breadth and scope of the problem.

Mr. SHAYS. You waited to meet with Mr. Ruff until you knew

that, the depth of the problem.

Mr. LINDSAY. I waited—I conveyed the information to Mr. Ruff

when I had some information. At the time I talked to Mr. Ruff, I

did not have a complete picture. And frankly, as we move forward,

it’s a fairly technically complicated issue, we discovered new little

bits of information as we move forward. But, generally, the sum

and substance of the information that was contained in the memorandum of June 18th or 19th fairly accurately states the state of

knowledge that we had at that time.

Mr. SHAYS. And so you were aware that——

Mr. BURTON. I’m going to yield the gentleman my time for this

round—oh, it’s Mr. Barr’s time. You want to yield to Mr. Shays?

Mr. BARR. I can hardly not do that. I yield my time to the gentleman from Connecticut.

Mr. SHAYS. So you knew there was a potential problem with certain e-mails that may not have been captured. You just didn’t know

how many.

Mr. LINDSAY. Sir, I want to place that into context. I had potential problems with computer systems and with e-mail issues frequently. We had an antiquated system that we are working very

diligently to make improvements on, and I took them all seriously.

Mr. SHAYS. That you had a serious problem with not being able

to retrieve e-mails, I’m just asking if you were aware of that. And,

you know, I’m going to say right out, Mr. Lindsay, I don’t think in

my mind that these were done intentionally. What I want to know

is, once the problem was discovered, what was done about it and

who was notified. So I’m not going to get into whether you had an

old system or new system, a bad system, a good system, but you

were aware that some e-mails were not being captured, isn’t that

correct? I mean, do we have to play games on this?

Mr. LINDSAY. It’s not a game, sir. It’s very, very important to understand that it isn’t a simple question of whether or not e-mails

were being captured one way or the other. The information that

was reported to me was that information of what people believed

to be the case at that time.

Mr. SHAYS. That what?

Mr. LINDSAY. That e-mails weren’t being captured.

714

Mr. SHAYS. Good. So we’ve arrived at the point, that e-mails

weren’t being captured, right?

Mr. LINDSAY. Yes, sir.

Mr. SHAYS. What’s the significance of that?

Mr. LINDSAY. The significance of it, from a technical point of

view, is that there was an operation of the system that probably

wasn’t working the way that it should.

Mr. SHAYS. How about from a legal point of view, given that the

White House was required to capture e-mails and identify ones

that fit the request of this committee and Mr. Starr’s work and the

committee on impeachment, the Judiciary Committee.

Mr. LINDSAY. It would be an inappropriate legal conclusion to

come to on my part or anyone’s part that information—because the

information was not captured or may not have been captured—— Mr. SHAYS. I didn’t ask for a conclusion.

Mr. LINDSAY [continuing]. That it wasn’t produced.

Mr. SHAYS. I didn’t ask for a conclusion. What I was asking

was—is whether there was the potential that information wasn’t

being captured that was important to fulfill a legal requirement.

Mr. LINDSAY. I presume that that potential was there. Potentially. Hypothetically.

Mr. SHAYS. So—and I hope so. Because you’re in charge of the

Office of Administration, and I think that you were requested to

provide relevant documents to various parties, through Mr. Ruff’s

office and others, correct?

Mr. LINDSAY. That is correct, sir. But there are other ways of

providing the information. Keep in mind that this information very

well could be—they’re duplicates that are kept in three locations.

Mr. SHAYS. I do hear you. But a little radar, something went off

and said we may have a problem here. And it’s—we may have not

identified all our e-mails, we may not have identified all our emails, we may or may not, correct?

Mr. LINDSAY. I did not come to that conclusion. My issue was to

convey to the counsel’s office the fact that this glitch had occurred

and that it had the potential, hypothetically, for causing an interference in terms of people’s understanding of what they could get

from the ARMS system. That does not mean and I did not make

a representation about any other source.

Mr. SHAYS. You answered the question. There are people that

needed things from the ARMS system, and you are now aware that

you’ve got a problem, and you thought it was enough of a problem

to talk to Mr. Ruff. Why did you think you needed to speak to Mr.

Ruff?

The good thing is you remember meeting with Mr. Ruff. You

think you met with him in the office. You just don’t know who was

at the meeting.

But now I want to ask you what you told him. I first want to

know why you went to see, and I want to know what you told him.

Mr. LINDSAY. I was directed by my boss’s boss to talk to Mr.

Ruff. That’s why I talked to Mr. Ruff.

Mr. SHAYS. And your boss’s boss? Who’s your boss?

Mr. LINDSAY. Ada Poze.

Mr. SHAYS. And your boss’s boss?

Mr. LINDSAY. Virginia Apuzzo.

715

Mr. SHAYS. Now why did they want you to tell Mr. Ruff?

Mr. LINDSAY. Because it was a technical issue and they wanted

the information to be conveyed quickly and to take the time to explain all the details of it through them.

Mr. SHAYS. And Mr. Ruff’s in charge of how to operate the computers, he’s the technical guy on how to operate the computers,

that’s why you did?

Mr. LINDSAY. No, sir.

Mr. SHAYS. You had a technical problem. You needed his help to

fix it.

Mr. LINDSAY. No, sir.

Mr. SHAYS. Obviously not. So why did you tell him?

Mr. LINDSAY. I was directed by the Assistant to the President for

Management and Administration to do so.

Mr. SHAYS. You don’t know why he directed you to.

Mr. LINDSAY. It’s a her, and I believe it was because this issue

affected the ARMS system and there was a potential—because of

the potential of the impact that it could have on searches.

Mr. SHAYS. So we are—it’s taken me about 5 minutes to have

you acknowledge that there was a problem with the potential to do

searches. Correct? That’s what you said now. Finally, we got to

point that you could have just said right off, but we’re playing this

little game to get to a point.

I have a red light. I’ll just wait.

Mr. BURTON. The gentleman’s time has expired, and I appreciate

the patience of the gentleman from Connecticut.

Mr. Hutchinson.

Mr. HUTCHINSON. Thank you, Mr. Chairman.

I want to extend greetings to Mr. Ruff and Ms. Mills. It’s been

some time since I’ve had an opportunity to visit with you. And I

listened to your testimony, Mr. Ruff, and I haven’t been here all

today, and I haven’t looked at all the materials, but I have not seen

anything that would indicate any evidence of intentional conduct

on your part or Ms. Mills’ part that would indicate a desire to cover

up or failure to comply with subpoenas.

And I just wanted to lay that out. I’m not making those allegations. You’re an officer of the court, and I think that any time we

look at your obligation to comply with subpoenas we ought to be

careful before we jump to conclusions on it.

But I am concerned from a number of standpoints. I think there’s

some legitimate points of inquiry. Again, as officers of the court,

subpoenas and the production of documents is a very important

part of our legal system; and, without any question, certain servers

were not reviewed for compliance with the subpoenas; and so, even

to this day, we do not know whether all the relevant documents

have been produced. Is that a true statement, Mr. Ruff?

Mr. RUFF. I don’t have firsthand knowledge, obviously, Congressman, but that’s my understanding from reading the record.

Mr. HUTCHINSON. Correct. And you’re not there day to day now.

Mr. RUFF. No, I view that as a blessing.

Mr. HUTCHINSON. Which is, I’m sure, to your relief. But we don’t

have them today. I think that determining the reasons for it and

what we need to do to correct it is very relevant to our judicial

process today and there’s certainly some ongoing investigation.

716

Second, I think it is very relevant to determine what the causes

were for it and whether there was due diligence in complying with

it. And I hear—again, it certainly didn’t indicate anything that

would indicate intentional conduct, but I did sense a little bit that

would give me some concern about a matter of diligence and perhaps a more of a cavalier attitude toward getting the information.

I know there was a lot going on in life at that particular point, but

that is a concern. You know there were investigations going on that

wanted this information. It was not being retrieved. And this exhibit 1, which is the memo from Virginia Apuzzo which you received, is that correct?

Mr. RUFF. That’s correct, Congressman.

Mr. HUTCHINSON. That in reading it would certainly point up to

me a problem.

Mr. RUFF. Indeed.

Mr. HUTCHINSON. And then you assigned it to different people

who ultimately wound up with a technical person to do some testing, and we don’t know who that is.

Mr. RUFF. I do not know who conducted the test, no, Congressman.

Mr. HUTCHINSON. And at any point did you believe that this is

information that should be provided to the requesting authority

such as the Congress, the independent counsel or the Department

of Justice?

Mr. RUFF. My state of mind is, in essence, as I’ve previously described it, was that I recognized that there might indeed be a problem, as has been expressed; that it was important to find out

whether this problem indeed had affected anything we had done or

not done previously; that when the report came back to me on the

test that had been run, I concluded—I understood that that suggested that there was no such adverse effect on what we had done

previously.

Obviously, my understanding was incorrect in the sense that I

now recognize that there is a body of material out there about

which I do not have any details that had not, in fact, been searched

or had not, in fact, been retrieved. But my view at the time was

very clear in my memory that indeed when the report came back

to me on the materials that had been searched and the duplicative

nature of what had been produced I believed that the problem had

not affected us. And that may well have an erroneous conclusion,

but it was my conclusion.

Mr. HUTCHINSON. How would you have failed if in your defense

of the President you had requested certain documents from the

Congress or from other body and then you had come to find out

that they were never produced?

Mr. RUFF. Obviously, I would not have been happy about that.

And I think the point you make is an absolutely solid and important one. This committee has every obligation to inquire into the

circumstances surrounding those events in order to determine,

first, whether indeed there was any impropriety—and I am firmly

of the belief that there was none; second, to determine whether

there’s a systemic problem that needs to be corrected; and, third,

whether the White House is responding appropriately to the comVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00724 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
717

mittee’s concerns. I view all of those as entirely legitimate inquiries, and we’re doing our best to try to respond to them.

And presumably I would have reacted the same way if I asked

any adversary or any third party for a set of documents. I would

want to know why they weren’t produced. That’s an entirely appropriate inquiry for you to make.

Mr. HUTCHINSON. With your very succinct statement as to the legitimate purpose of this inquiry I’m going to yield back the time.

I know you have all been here a long time. Thank you.

Mr. BURTON. We have a vote on the floor. We’ll stand in recess

at the fall of the gavel.

[Recess.]

Mr. BURTON. I want to apologize to our witnesses for the interruption, but that’s the way the legislative process works. So we’ll

now yield to—who’s next on there? Mr. Shays? It’s my time. OK.

I will yield to Mr. Shays.

Mr. SHAYS. Thank you.

Mr. Lindsay, I have five slots, and I’m not trying to trick you,

and I know you’re trying to be precise, but it really took us a long

time to get to this point. That you met with Mr. Ruff to tell him

about the problems, a technical problem that prevented you to capture certain e-mails. And you knew this was a potential problem

for Mr. Ruff because he needed—there were issues—there were certain e-mails you needed to capture and there were potentials there.

Mr. LINDSAY. Yes, sir.

Mr. SHAYS. So when you went to Mr. Ruff you believe you met

with him in his office, but you don’t know if anyone else was there.

And that’s correct.

Mr. LINDSAY. That’s what I testified to this time. That’s what I

testified to on the 23rd also.

Mr. SHAYS. And that’s correct.

Mr. LINDSAY. That is correct, sir.

Mr. SHAYS. And you’re telling us that your boss’s boss told you

to disclose this information to Mr. Ruff.

Mr. LINDSAY. That is correct, sir.

Mr. SHAYS. And you were saying it was a technical problem, but

you didn’t go to Mr. Ruff because he had any technical expertise

with resolving the problem. He needed to know what?

Mr. LINDSAY. Excuse me, sir?

Mr. SHAYS. He needed to know what? You weren’t there to have

him fix the computers. It was a technical problem in the computers

that prevented certain e-mails from being captured and so you

didn’t go to him to help you with the technical problem.

Mr. LINDSAY. That is correct, sir.

Mr. SHAYS. You went to disclose information. What was the information you went to disclose?

Mr. LINDSAY. The impact of the technical problem on something

that Mr. Ruff had an interest in.

Mr. SHAYS. OK. And what are those things that he had an interest in?

Mr. LINDSAY. ARMS searches.

Mr. SHAYS. OK. And, Mr. Ruff, if you would tell me, what was

the impact of this? I mean, in other words, you’re being told that

certain information isn’t being captured, that you had thought you

718

had—we had captured all the e-mails, all the correspondence, all

the relevant information is being forwarded on to the relevant parties, and your word is golden in this committee and in Congress.

So did you not begin to wonder if you had to come back? Let me

say this. What was your reaction?

Mr. RUFF. I think my reaction is as I’ve described it, Congressman, which is that my first concern was to determine whether

whatever problem it was that existed—and you’re quite correct in

not attributing to me any technological knowledge or understanding—whatever problem existed, did it or did it not have an impact

on searches we had already conducted.

The most immediate point of concern, because it was the nearest

in time and in June 1998 the most sort of prominent, I think, in

all our minds in the counsel’s office, was whether it had affected

our search for Lewinsky-related material. Thereafter—and as I’ve

indicated I can’t trace for you the process that got from my concern

to the framing of a search request that went back to the Office of

Administration. But it was my belief that such a search was being

conducted to determine whether indeed we had made the proper

search and the proper production or whether there was a problem

we needed to address.

Mr. SHAYS. Did you give out certain fairly strong requests for— to ascertain the extent of the problem? I mean, did you—did you

recognize that this could be a challenge that needed to be dealt

with quickly?

Mr. RUFF. Indeed. And that was the purpose for conducting the

search that was being conducted, to determine whether—immediately and as rapidly as possible to determine whether or not

something had happened that would require us to take corrective

action.

Mr. SHAYS. Did you impress upon Mr. Lindsay that this was an

important issue?

Mr. RUFF. I don’t think there was any need to impress on Mr.

Lindsay that. I think both of us understood that the very fact that

a memo had gone from Ms. Apuzzo to the deputy chief of staff and

that Mr. Lindsay was meeting with me on it meant it was an important problem.

Mr. SHAYS. So you agree, Mr. Lindsay, it was an important problem?

Mr. LINDSAY. Yes.

Mr. SHAYS. OK. And the problem was from your side you had a

technical problem which meant certain e-mails weren’t being captured. The problem from Mr. Ruff’s side was he had information he

needed to get to various parties. You made reference to one, Judiciary Committee, I’m assuming, or Mr. Starr.

Mr. RUFF. Mr. Starr.

Mr. SHAYS. Mr. Starr as it related to a particular individual. So

this would be, I would think, a memorable meeting, true.

Mr. RUFF. The fact of the meeting is memorable, but witness my

already stated failure of recollection with regard to the specifics of

the conversation. I fear not memorable in terms of exactly what it

is that Mr. Lindsay told me and what I said to him.

Mr. SHAYS. I would love more time or who is next.

Mr. BURTON. Or who was there.

719

Mr. RUFF. Let me just address that momentarily. Because I said

in my interview with the committee that I thought Ms. Mills was

there but couldn’t vouch for it. It’s been suggested that because my

time planner, my calendar, had Ms. Mills’ name on it that she

must have been there. Let me just make it clear, if it’s not already,

that that is a preplanning calendar and not a reflection of what actually happened. So that as I think back on it and looking at that

calendar, candidly, and I initially assumed that she was there,

however, I take it absolute face value her recollection that she was

not, and my assumption at the moment as we go forward is that

it was Mr. Lindsay and I.

Mr. BURTON. Mr. Cummings.

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

To Mr. Ruff, Ms. Mills and Mr. Lindsay, thank you for being

with us today. I can only echo the comments that have been made

on this side, particularly by my colleague, Mr. Ford, with regard

to your service to this great country.

I might take just a note—make a note, Ms. Mills, that as a father of a 17-year-old young lady, first-year student at Howard university, my daughter was very moved by your presentation when

you represented the President of the United States; and it left a

mark on the DNA of every cell of her body to be the very best that

she could be. I want to thank you for all that you are.

And I also want to thank you for your opening statement, which

is probably, if you heard us on this side you would hear almost

your same words, not as eloquent, but your same words. Because

I’ve sat now on this committee for 4 years and so many of the problems that trouble our young people, so many of the problems that

trouble this Nation are never addressed here. Never addressed. We

don’t spend 1 second addressing them while we spend all this time

and money addressing things like we’re addressing today. But be

that as it may, I thank you.

Mr. Lindsay, let me just ask you a few questions. Even after 3

days of hearings it seems there’s still some confusion about the nature of the e-mail problem we’re discussing. I would like for you to

help me clarify this.

Mr. LINDSAY. Yes, sir.

Mr. CUMMINGS. Did the problem with the Mail2 server affect all

e-mails in the White House?

Mr. LINDSAY. No, it did not, sir.

Mr. CUMMINGS. As I understand the problem, it resulted in incoming e-mails to certain White House employees not being properly archived. This does not mean that those e-mails were not produced, however. There are other ways those affected e-mails may

have been made into ARMS, made into ARMS. For example, anytime a person responded to an e-mail with history, that entire response containing the original incoming message would have been

automatically sent into ARMS, is that correct?

Mr. LINDSAY. That is correct, sir.

Mr. CUMMINGS. Furthermore, if an incoming e-mail was sent or

cc’d to any nonaffected user in the EOP or if it was forwarded by

the recipient, then it would also be in ARMS, is that correct?

Mr. LINDSAY. That is correct, sir.

720

Mr. CUMMINGS. We’ve established that the problem was limited

to incoming e-mails to certain White House users, and some of

those same e-mails could have been archived into ARMS anyway.

Mr. LINDSAY. That is exactly correct, sir.

Mr. CUMMINGS. In addition, many e-mails that did not get properly archived may still have been produced, and that’s a very important point. We’ve been told by Mr. Ruff and Ms. Nolan that any

time the White House receives a subpoena or document request a

search is conducted of ARMS. In addition, however, all relevant individuals are asked to search their own computer records, so any

e-mails that were saved would have been produced regardless of

whether or not they were archived in ARMS, isn’t that correct?

Mr. LINDSAY. That is exactly correct, sir.

Mr. CUMMINGS. Now, there’s been a lot of loose talk about the

hundreds of thousands of missing e-mails. Representative Barr

made statements to that effect today in this very hearing. Do any

of you have any idea how many e-mails may have been missing

from ARMS?

Mr. LINDSAY. I do not, sir.

Mr. CUMMINGS. Ms. Mills.

Ms. MILLS. I do not.

Mr. CUMMINGS. Mr. Ruff.

Mr. RUFF. No, sir.

Mr. CUMMINGS. Is there any way of knowing how many e-mails

were not produced?

Mr. LINDSAY. Not to my knowledge, sir. You would have to complete the reconstruction process to actually get an assessment as to

what that number is.

Mr. CUMMINGS. Do any of you have any knowledge about the

content of those missing e-mails?

Mr. LINDSAY. No, I do not, sir.

Ms. MILLS. I do not, sir.

Mr. RUFF. I do not, Mr. Congressman.

Mr. CUMMINGS. Is there any way of knowing the content of the

missing e-mails?

Mr. LINDSAY. Short of reconstruction or actual examination of

those e-mails after reconstruction, no, there is not.

Mr. CUMMINGS. So any speculation about the number or the content of the missing e-mails is just that, speculation; is that correct?

Mr. LINDSAY. Yes, sir.

Mr. CUMMINGS. Now, Mr. Lindsay, I would like to—like you to

help me out with the document that has been cited several times

during our hearings. It is exhibit 62. It is a document dated—are

you familiar? It is a document dated June 18, 1998 and is apparently the results of a survey conducted by Northrop Grumman contractor Bob Haas who looked at the White House e-mail network

to determine how many e-mails were archived in ARMS. Are you

familiar with this document?

Mr. LINDSAY. Generally familiar, sir.

Mr. FORD. What exhibit number is that?

Mr. CUMMINGS. That’s exhibit No. 62.

Now Mr. Haas apparently came up with 246,000 e-mails that

had not been archived in ARMS. Some people have suggested that

this means that those 246,000 e-mails were missing or they were

721

not produced. That’s just plain wrong. Mr. Haas was looking at emails that were still on the White House’s computer network.

Those e-mails may not have been in ARMS, but they have been

saved by the recipient. This means that every 1 of those 246,000

e-mails should have been searched and, if responsive, produced

when people were told to search their own files in response to the

document request. Is that correct, Mr. Lindsay?

Mr. LINDSAY. That is exactly my understanding, sir.

Mr. CUMMINGS. I see we’ve run out of time. Thank you very

much.

Mr. BURTON. Thank you Mr. Cummings.

Mr. Shays, I think you’re next.

Mr. SHAYS. Thank you.

Let’s talk about that document No. 62 a little bit more.

Mr. LINDSAY. Yes, sir.

Mr. SHAYS. This was a document provided by Northrop Grumman. And I want to know if you were given this document. It’s prepared, I believe, by Bob Haas of Northrop Grumman.

Mr. LINDSAY. It is before me now, sir.

Mr. SHAYS. Pardon me?

Mr. LINDSAY. It is before me right now.

Mr. SHAYS. Had you ever seen the document before?

Mr. LINDSAY. Before these proceedings, no, sir. Before I testified

on the 23rd, no, sir.

Mr. SHAYS. Do you know who this document was given to?

Mr. LINDSAY. No, I do not, sir.

Mr. SHAYS. Did you know that that document existed?

Mr. LINDSAY. Prior to my testifying before this group, no, sir.

Mr. SHAYS. Kind of takes my breath away.

In this document, Northrop Grumman was your contractor.

Mr. LINDSAY. Had a contract with the Office of Administration

to provide common computer support and therefore provided support for our facilities contract.

Mr. SHAYS. What were you?

Mr. LINDSAY. At that time, I was the general counsel. They work

for the Office of Administration.

Mr. SHAYS. So they prepared this document for you don’t know

who.

Mr. LINDSAY. No, I do not, sir.

Mr. SHAYS. But you were supposed to assess the problem.

Now this document was prepared on I believe it is June 18th.

And this document which you have lists various names, from Phillip Caplan to Bruce Lindsey to Betty Currie—these are e-mails we

didn’t capture—Erskine Bowles, John Podesta—who was then the

deputy chief—Ira Magaziner—and Ira Magaziner was almost

4,000—well, 3,600 more precisely. Charles Ruff even had five in

here.

But this is just a snapshot of 1 day. Now, admittedly, it’s a snapshot of 1 day. We don’t know how far back it would capture. It’s

246,000 potential e-mails. And then it doesn’t capture all the emails that were lost from June until November until the system

was fixed.

So it kind of blows my mind that you who work in the office have

never seen this document before and these are the people that

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work for you. So it was really kept under wraps by somebody. And

that’s why I begin to suspect—I’m sorry.

Mr. LINDSAY. I don’t believe anything was kept under wraps.

There are many, many documents—I mean, right now, as assistant

for the President of Management and Administration there are

over 2,400 people who report to me in one way or the other. All

those people may have documents.

Mr. SHAYS. This is relevant information. You’re supposed to report the problem, and this is the problem, and you’re not able to

report the problem. How convenient.

Mr. LINDSAY. I can—— Mr. SHAYS. Mr. Ruff can say he never saw it. Mr. Ruff, did you

ever see this document?

Mr. RUFF. No, I did not.

Mr. SHAYS. OK. I’m assuming, Ms. Mills, you never saw it either.

Ms. MILLS. No, I do not.

Mr. LINDSAY. I cannot speak, sir, as to why they did not present

that document to them.

Mr. SHAYS. These are reasons why we need to find out. Because

you’re willing to make an assumption that there was no cover-up,

and I’m willing to make an assumption there was. And so we both

are making assumptions. And then we’re going to try to find the

truth. But my assumption is no different than your assumption.

The problem is, this is relevant information that you didn’t get, you

should have gotten, and you, Mr. Ruff, should have known it because it says there are 246,000.

Mr. LINDSAY. It’s not an assumption on my part, sir, that there’s

no cover-up. I know that I didn’t cover anything up. I’m testifying

about what I know.

Mr. SHAYS. That’s an assumption that you didn’t. But you said

more than that, you said nobody tried to cover-up.

Mr. LINDSAY. I don’t believe anyone did.

Mr. SHAYS. That’s your belief. You don’t know it. The only thing

you can speak on is about what you say.

Mr. LINDSAY. That’s correct.

Mr. SHAYS. You can tell me you think, and I can be critical of

your thinking that way, just as you can be critical of mine being

suspicious of the fact that we didn’t learn about this problem until

the press told us, just like we didn’t know about the videotapes

until the press told us. Then you gave us the videotapes, and now

we have this document.

So, Ms. Mills, I’m sorry we’re having this hearing, but we’re

learning things that are important. Somehow there was the big disconnect, and this big disconnect meant that relevant information

may not have been presented to the proper authorities.

And I voted against impeachment, as I told you earlier. Wouldn’t

it be interesting to know if there was things in here that would

have affected my vote differently. But we didn’t have the information. Because I still buy your argument impeachable offenses

weren’t proven and the proven offenses weren’t impeachable, but

they may not have been proven because information was withheld.

I want to be clear now, given that you didn’t have relevant information, what you were really able to tell Mr. Ruff. This is relevant

information that you didn’t tell him because you didn’t know about

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it. So you didn’t try to cover up. But what did you tell him then

without this relevant information?

Mr. LINDSAY. As I testified earlier and as I testified on March

23rd, the information that I provided Mr. Ruff is roughly the information that was provided in the June 18th memorandum from Ms.

Apuzzo. That is the sum and substance of what I understand we

conveyed.

Mr. SHAYS. Who do you think can help us find out who had this

in the White House?

Mr. LINDSAY. I don’t know, sir.

Mr. SHAYS. Well, try to stretch your mind a bit. Who would most

likely have it? Wouldn’t it have been most likely that you should

have it or who most likely should have had it?

Mr. LINDSAY. I don’t know if I should have had it at all, sir. My

understanding to this day right now is that that document is misleading in that it gives one the impression that it describes the entire population of e-mails that were or were not captured.

Mr. SHAYS. No. No, you’re wrong about that. See, it is the total

amount potentially minus the e-mails found in individual PCs,

minus the e-mails found attached to sent e-mails with history,

minus the e-mails found in printed filings, minus the e-mails retrieved from back-up tapes. Then that leaves a certain number that

we haven’t found. We don’t know what that number is. And then

of that number there may be some not relevant. But, in there,

there may be subpoenaed information not produced. And you and

I have this one big challenge. I don’t fault you or anyone else that

the breakdown happened. I fault you for not telling the relevant information.

Which gets me to you, Mr. Ruff. If you take responsibility what

does that mean, you take responsibility?

Mr. RUFF. It means that, ultimately, it was my judgment or misjudgment and my misunderstanding of the circumstances that led

me to conclude—and for that I blame no one other than my own

failure of understanding, that led me to conclude that indeed the

problem did not have an adverse affect on our prior productions.

In that sense, I take responsibility for not pursuing further the inquiry that I thought had been adequately pursued by the search

that had been conducted.

Mr. SHAYS. You were aware, though, that the problem wasn’t yet

fixed either, correct?

Mr. RUFF. No. That’s part of my understanding at the end of the

search that had been conducted, was that indeed whatever glitch

there was, whatever the technological problem was, did not affect

our prior production and collection of information. And in that

sense, candidly, I put it aside and went on to other pressing matters.

Mr. SHAYS. And did you at any time learn that this problem—

and they referred to it—what did they refer to this project as,

Mail2 problem, Mr. Lindsay?

Mr. LINDSAY. Who referred to what?

Mr. SHAYS. Didn’t they call it project X?

Mr. LINDSAY. I never called it project X.

Mr. SHAYS. Did you ever hear it referred to as project X?

724

Mr. LINDSAY. I heard about it here when I heard the testimony

of some of the Northrop Grumman employees.

Mr. SHAYS. Right. OK. So your testimony before the committee,

Mr. Ruff, is that you take full responsibility and based on what you

knew you didn’t think there was any reason to tell the committee.

What do you think now?

Mr. RUFF. Obviously, that if I had understood at the time what

the scope of the problem was, that indeed the test that had been

conducted did not give sufficient assurance that the problem had

not affected earlier searches, I would have done something about

it.

Mr. SHAYS. If you were on this committee and you had found this

information, wouldn’t you be pretty unhappy and concerned about

what the White House had done?

Mr. RUFF. Well, I have no doubt about the capacity of the committee to be concerned about what the White House has done, Congressman. I don’t mean to be flip, but I do think, as I said to Congressman Hutchinson, that there are legitimate areas of inquiry,

and one of those legitimate areas is to determine through appropriate means whether anything untoward occurred. I may disagree

with you and others about what the scope of that inquiry ought to

be and how it ought to be conducted, but I don’t question the core

issue of whether it ought to be of concern to you.

Mr. SHAYS. But, see, what I want to know is, who had this document and why wasn’t Mr. Lindsay and others told? And why

weren’t you told?

Mr. RUFF. On that score I can’t help you, Congressman.

Mr. SHAYS. So it just makes me suspicious.

I yield back.

Mr. BARR [presiding]. Does the gentleman yield back?

OK. Who seeks recognition? Mr. Waxman.

Mr. WAXMAN. For a 10-minute round.

Mr. BARR. Mr. Waxman is recognized for 10 minutes.

Mr. WAXMAN. As we near the end of our 4th day of hearings, I

want to summarize some of the most important facts that we’ve

learned.

We have learned that no one in the White House had any role

in developing the message retrieval system; that no one in the

White House asked that any e-mail messages be excluded from the

system; and that before June 1998, no senior officials in the White

House even knew that some e-mail messages were being excluded

from the retrieval system.

We have learned that the Northrop Grumman employees involved in this issue have conflicting recollections of whether any

threats were made to them. One employee, Robert Hass, believed

they had been threatened with jail by Laura Callahan, a White

House employee. Mr. Haas told us that in a meeting with Mrs. Callahan and his four coworkers, he flippantly asked what would happen if he discussed the computer glitch with others, particularly his

wife. He remembers Mrs. Callahan warning him that, ‘‘there would

be a jail cell with his name on it.’’

Sandra Golas initially testified that, while she remembered the

word ‘‘jail’’ being used in the meeting, she couldn’t remember who

725

said it. But she later said she did feel threatened and thought jail

was a real possibility.

Yiman Salim and John Spriggs, both of whom were in that meeting and both of whom seemed credible, have no memory of jail ever

being discussed. Miss Salim testified that she never felt threatened, and both said they believed Mrs. Callahan acted reasonably

given the circumstances.

Betty Lambuth did agree with Mr. Haas’ recollection and added

that at a second meeting she had with Mr. Lindsay and Paulette

Cichon another threat by Mr. Lindsay was made.

But we know now that Ms. Cichon had signed a statement saying that the threat never happened. In fact, Ms. Cichon’s statement

says, ‘‘at no time during this meeting did I perceive Mark threatening Betty or myself. At no time was a threat of jail mentioned or

any other threat. If any threat were made, I would certainly have

remembered it and would have taken the appropriate action in response.’’

I want to point out that Miss Cichon was a political appointee

and has spent almost all of her career in the private sector and no

longer works at the White House.

We also learned that none of the Northrop Grumman employees

and no one in the White House had any knowledge of the content

of the missing e-mails. They all testified that they didn’t have any

knowledge of it.

One witness said she thought she knew what was in it because

she heard from Mr. Hass, but Mr. Haas said he didn’t inform her

what was in it because he didn’t know what was in it. So the evidence is that none of them really knew what was in these e-mails.

Yesterday, we learned from Mr. Heissner and Mr. Lyle that they

knew of no efforts to conceal this information from Congress or the

independent counsel; and we learned that, despite yesterday’s press

reports, there was no inappropriate action regarding Sidney

Blumenthal’s e-mail account.

Now let’s put it all in context.

At this point, we’ve heard from Mr. Heissner, who is a career

civil servant and has served in the administrations of Presidents

Ford, Carter, Reagan, Bush and Clinton—by the way, Mr. Ruff,

have you ever met Mr. Heissner?

Mr. RUFF. Not to my knowledge, Congressman.

Mr. WAXMAN. Mr. Lyle, the director of the Office of Administration, became involved in this issue in April 1999, almost 10 months

after the White House counsel’s office focused on the issue.

Betty Callahan and—excuse me, I have been calling her Betty

Callahan, but I understand it’s Laura Callahan. It’s a mistake. It’s

not a criminal action. It’s a mistake. Laura Callahan, who was accused of making the initial threat, is a registered Republican and

a career civil servant. So she’s the one that supposedly made the

threat.

Paulette Cichon, as I noted before, also was not a political appointee and has spent most of her working life in the private sector.

And today we have Mr. Lindsay, Mr. Ruff and Ms. Mills, all of

whom have impressive backgrounds in records of public service.

726

So if there is a scandal and a deliberate attempt to conceal information, obstruct justice and thwart investigations, these are all the

people that would be involved. They would be the participants in

this cover-up. Not only have they all credibly denied being involved

in any wrongdoing, none of them have any knowledge of others

making an attempt to conceal the e-mails.

Now, Mr. Ruff and Ms. Mills, when this problem arose did you

have any knowledge of the content of the incoming missing emails?

Ms. MILLS. I did not.

Mr. RUFF. No, Mr. Congressman.

Mr. WAXMAN. So if the theory of wrongdoing is correct, you

would have had to participate in a cover-up without even knowing

what you were trying to cover up. And Mr. Ruff and Ms. Mills

would have had to be doing this with the help of Mr. Heissner and

others, who at least Mr. Ruff said he’s never met.

Ms. Mills, have you ever met Mr. Heissner?

Ms. MILLS. I have met Mr. Heissner.

Mr. WAXMAN. You have met Mr. Heissner. OK. So I can’t say this

cover-up involved a man you never met. Mr. Ruff never met him.

You met him. Did you participate in a cover-up with him?

Ms. MILLS. No.

Mr. WAXMAN. And now to cover up the cover-up, all the witnesses who have testified in the 4 days of hearings would have

been lying to us and all of them would have been lying to us under

oath, if you want to believe all the suspicions that some of my colleagues say they have.

I think a more plausible explanation is that Mr. Ruff and others

in the White House counsel’s office simply did a bad job in responding to the system defect that resulted in missing e-mails. It’s embarrassing to have to face that fact. But mistakes do happen.

The one area that I agree with Mr. Barr is that responding to

subpoenas is a serious obligation. Every effort should be made to

produce documents. In this case, for whatever the reason, I don’t

think enough attention was given to understanding the problem

and making sure subpoenas were fully complied with.

I understand that the people in the counsel’s office thought you

had complied with the subpoenas. You acted in good faith, believing that the missing e-mails were in fact turned over; and it may

still turn out to be true that that’s the case. But because of that

belief, I don’t think that enough was done to quite find out whether

everything was being fully complied with. I regret it. I’m sure that

Mr. Ruff, Ms. Mills and others who worked in the counsel’s office

regret that as well. But if that is the explanation, and I think it’s

a logical explanation, this is an unfortunate mistake. It is not

criminal conduct, and it doesn’t amount to a scandal.

And I must say, when we get all these e-mails, I will be astonished if we’re going to learn something we didn’t know about

Monica Lewinsky. I would just be astonished that maybe any of us

who voted against the impeachment would think that we should

have voted for impeachment because of something on a missing email, especially when you realize that the e-mails that are missing

are missing because they were sent from the outside into the Office

727

of the President and all the expanded offices that are involved in

the office of the executive branch.

I would hope that and expect that we’re going to see what is in

there. But like so many other examples we have in this committee,

before we get documents, all these suggestions are made, allegations are asserted, accusations are laid on the table that there’s a

scandal. And then when we get the documents it turns out that the

documents and information never substantiated the allegations,

then we quickly go onto another allegation.

Mr. Kanjorski, I understand you wanted me to yield to you. I do

have less than a minute, but I will yield to you.

Mr. KANJORSKI. I just want to point out that it’s unfortunate,

highlights the culture of the committee and the circumstances of

the last 7 years.

I heard my colleague from Connecticut examining the three witnesses, and he readily recognized he makes an assumption that

there’s a cover-up. The problem is, that’s a shift of the burden of

proof. It means if there is no cover-up you have to prove a negative.

That’s extremely difficult, if not impossible, as we know, in the law.

But that’s the new burden that this committee would place on the

executive branch of government.

I think I would like to associate myself in entirety with Mr. Waxman’s summarization. I think it’s very clear. There was a mistake

made. It is as much technical as perhaps failure to follow through

appropriately. But perhaps that’s because the people that should

have followed through appropriately didn’t understand the technical complications involved. Clearly, this is not a scandal. This is

a mistake. It’s not criminality. It’s an overburdened White House

with investigations that have gone on and on and on and continue

to go on.

Mr. BARR. The gentleman’s time has expired.

Mr. WAXMAN. This is the 4th day of the hearing and who knows

how many more we’ll have. I yield back the balance of my time.

Mr. BARR. The gentlelady is recognized for 5 minutes.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

Mr. Ruff, I would like to discuss some of the assurances that you

and your successors have given to this committee about the completeness of document production. It’s a serious matter. And we

have heard it in opening statements by one of the witnesses how

really trivial are the matters that this committee engage in. And

I would think any officer of the court, any lawyer who found that

vast numbers of items that were sought after under subpoena had

been either mistakenly or purposefully withheld, most attorneys

would be pretty upset.

So, Mr. Ruff, would you please turn to exhibit No. 140. This is

a letter—this is your letter to this committee on campaign fundraising.

[Exhibit 140 follows:]

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729

730

731

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733

734

Mr. RUFF. Forgive me. It’s taking me a few minutes to get there.

Mrs. CHENOWETH-HAGE. Oh, yes.

Mr. RUFF. I have it.

Mrs. CHENOWETH-HAGE. This is a letter to the committee where

you stated, this letter serves to certify that to the best of my knowledge the White House has produced all documents responsive to

the committee’s subpoenas.

And then, on the dog track matter, exhibit No. 141, which is four

pages beyond the document just referred to, in your January 6,

1998, letter you wrote, to the best of our knowledge we have provided the committee with all responsive materials that we have located as a matter of our EOP-wide search for documents relating

to the St. Croix Meadows Greyhound Racing Park.

[Exhibit 141 follows:]

735

736

Mrs. CHENOWETH-HAGE. Then in exhibit No. 142 on the Charlie

Trie matter, in a February 20, 1998 letter Lanny Breuer wrote, I

understand that all e-mails currently searchable regarding Mr.

Trie have been provided to the committee.

[Exhibit 142 follows:]

737

738

Mrs. CHENOWETH-HAGE. Then in exhibit No. 143 involving clemency for the Puerto Rican terrorists, in a December 3, 1999, letter,

Dimitri Nionakis wrote, in addition, due to the number of requests

for information from investigative bodies, the search of archived email messages has taken longer than expected. I anticipate that we

should complete that search by the end of next week.

[Exhibit 143 follows:]

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741

Mrs. CHENOWETH-HAGE. Then on the Waco tragedy, in a January

28, 2000, letter, Dimitri Nionakis wrote, and I quote from exhibit

No. 60, the scope of our recent search for Waco-related materials

encompassed all items or documents in any way relevant to the

events occurring at the Branch Davidian compound in Mt. Carmel

outside of Waco, Texas, in February through April 1993.

Mrs. CHENOWETH-HAGE. Now, these are not trivial matters. I

think anyone would agree with that.

Mr. Ruff, given what we know, though, about the e-mail problems, these assurances are no longer reliable that I just read to

you, not a single one of them. Granted some of the assurances were

given before your office’s knowledge of the e-mail problem, but let’s

begin by focusing on those examples of assurances made before the

summer of 1998. Do you believe that the White House counsel’s office has an obligation to inform the committee if it learns information that renders a prior certification invalid or inaccurate?

Mr. RUFF. I do, and it has.

Mrs. CHENOWETH-HAGE. Mr. Ruff, do you believe that the White

House counsel’s office should wait for pressure from the press and

or public hearings to correct inaccurate information provided by the

committee——

Mr. RUFF. The White House’s——

Mrs. CHENOWETH-HAGE [continuing]. Provided to the committee.

Mr. RUFF. The White House counsel’s has, to my knowledge and

my experience, been forthcoming with the committee, whether the

words be a happy one or unhappy one, about its compliance with

committee requests.

Mrs. CHENOWETH-HAGE. I find that difficult—I find it difficult to

understand that, in this Nation, the most highly technical information retrieval systems that exists in the White House, that we can’t

get information before Thanksgiving of this year.

Mr. RUFF. Congresswoman, to that issue, I am really not able to

speak; and I’ll leave it in Mr. Lindsay’s hands. But, as I explained

earlier, I think he said that there will be a rolling production made

and before Thanksgiving.

Mrs. CHENOWETH-HAGE. And it is now May. I don’t think your

assurances make us feel very sanguine about this issue, nor the

American people.

But let’s turn to those assurances given——

Mr. BARR. The gentlelady’s time has expired.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

Mr. BARR. Who seeks recognition?

The gentleman from Tennessee is recognized for 5 minutes.

Mr. FORD. Let me walk back through really quickly just for the

record.

My colleague, Mr. Barr, has made, panelists, some very strong

allegations that seem to be completely unfounded. In fact, he held

up a folder of e-mails regarding Monica Lewinsky and said they

had not been produced to the Office of Independent Counsel. He

was referring to the results conducted by Mr. Haas, I believe, in

mid-1998. Was that accusation accurate?

I ask any of the panelists who might be able to respond. I think

Mr. Lindsay might.

742

Mr. LINDSAY. It’s not my understanding. If I understand the testimony here today, that that was not correct.

Mr. FORD. In fact, we’ve actually heard from numerous people

testifying that Miss Shelly Peterson in the White House counsel’s

office searched those e-mails and determined that every single responsive e-mail had already been produced for the independent

counsel or to the independent counsel. Is that your understanding

as well?

Mr. LINDSAY. I refer that to counsel.

Ms. MILLS. That is my understanding.

Mr. FORD. Now Mr. Barr states it was puzzling that the White

House counsel’s office did not produce the documents to the independent counsel a second time, even though they had already produced or been turned over. Do any of you know—and I’m a lawyer,

graduated from a rural school, Mr. Barr, up in Michigan called the

University of Michigan, I’m not as bright as you, but I don’t know

any legal theory or set of legal ethics that suggests that it’s necessary to turn over documents when you have already produced

those exact same documents. Mr. Ruff, do you know of any legal

theory or legal ethics that requires that?

Mr. RUFF. I do not, Congressman. I think we made the judgment

that because indeed these documents were duplicative of those

which had already been turned over that we met our obligation

under the subpoena.

Mr. FORD. Miss Mills, I know you’re a Stanford lawyer. Do you

know of any legal theory or set of legal ethics that would require

you to turn over two times documents?

Ms. MILLS. I am not aware of any.

Mr. FORD. Mr. Lindsay.

Mr. LINDSAY. No, sir.

Mr. FORD. My good friend from Connecticut, who I am sorry

left—I understand left, made some comments about Ms. Mills’ brilliant opening statement. And I can imagine if you were one of

those that had worked tirelessly, even if it was not the intention

to bring truth to some of the horrible things that we’ve done on this

committee, that perhaps you would disagree or find disagreeable

some of the things that she said.

But I do take somewhat of an issue with those who may suggest

that there have been those in the White House, Miss Mills included, who have not been as forthright and forthcoming as she

should have been. Perhaps the better way of saying it, she’s not—

they’re not saying the things you would like for them to say. The

badgering of Mr. Lindsay by my colleague, Mr. Shays, was embarrassing. I can understand if we disagree with what he’s saying, but

you can’t disagree because he’s not saying what it is you want him

to say.

Also, Chairman Barr, it’s come to my attention that one of—that

someone on your side encouraged other Members on your side who

might be friendly or might, I should say, be willing to accept what

the White House officials are saying were encouraged not to come,

not to attend this morning’s hearings because it might give off the

wrong impression. If someone on the other side can dispute that I,

unlike you, will believe you, unlike we’re giving these witnesses the

credit this morning.

743

I would close by saying my good friend, Mr. Barr—and he is a

friend. We were at the Super Bowl together in Atlanta, and I had

a chance to see his wife. He was rooting for the wrong team, the

St. Louis Rams if I remember, but he’s still a friend nonetheless.

You know, there are those on your side of the aisle who have

been accused of doing things that we have learned were not true.

At one point when you were U.S. attorney in Georgia you were accused of going after—unfairly going after African American elected

officeholders. You said indeed that was not the case at your office.

There was no racism, no bigotry involved. And many accepted that.

I’ve accepted that. And others, even politicians in Atlanta that I

know and are close with, have accepted that.

Mr. Burton has his own share of allegations levelled at him; and

there are those that suggest that he’s done nothing wrong, as he

has. And I accept and respect that. I would only hope that at some

point we can learn to accept and respect what the White House is

saying.

Again, we can disagree over policies and perspectives and issues

and vision, but when do we stop? I mean, we went through an impeachment hearing where you lost a would-be Speaker, Mr. Livingston. And no disrespect to Mr. Hastert but Congressman Livingston—Chairman Livingston would probably have made a great

Speaker. He respects this process.

And, again, I would love to see Mr. Gephardt be Speaker, but we

have to have a non-Democrat. Mr. Livingston would have made a

great Speaker. We lost him. You lost your other Speaker, Speaker

Gingrich, because he didn’t aggressively go after the President.

When do we stop?

I mean, when is that in—we take a look—and I would love—Mr.

Shays was asking Mr. Ruff—Mr. Ruff, if you were a member of this

committee, do you think it would be appropriate to take some of

the recommendations offered by Ms. Mills to investigate why black

men in New York are afraid to take their wallets out of their back

pockets?

Mr. BARR. The gentleman’s time has expired.

Mr. FORD. No, no. Would you urge us, Mr. Shays—— Mr. BARR. The gentleman’s time has expired. Would he like an

additional minute by—— Mr. FORD. Mr. Ruff, if you were a member of this committee,

would you investigate that?

Mr. RUFF. That I think is the people’s business, Congressman.

Mr. FORD. If you were a member of this committee, would you

look into the LAPD and some—I mean, if we’re going to——

Mr. BARR. The gentleman’s time has expired. The gentleman’s

time has expired.

Mr. FORD. If you’re going to ask, Mr. Barr, these——

Mr. BARR. The gentleman’s time has expired.

Mr. FORD [continuing]. Would you be investigating the White

House, Mr. Ruff, with the aggression of those of us on this committee?

Mr. RUFF. I have a modestly biased view of that, Congressman,

you’ll understand.

Mr. FORD. You can answer yes or no. I’ll accept it.

Mr. RUFF. The answer is I think that——

744

Mr. BARR. The gentleman’s time has expired. The gentleman

knows the rules of decorum. He’s choosing deliberately to ignore

them. Would the gentleman like additional time by unanimous consent? Would you stop just long enough to allow me to ask you that

question?

Mr. FORD. I would.

Mr. BARR. OK. Without objection, the gentleman is recognized for

1 more minute.

Mr. FORD. If you were a member of this committee, Ms. Mills,

would you commence an investigation into why African American

men are afraid to take their wallets out in New York?

Ms. MILLS. I would.

Mr. FORD. Mr. Lindsay, if you were a member of this committee,

would you commence an investigation as to why young African

American men are afraid to take their wallets out in New York?

Mr. LINDSAY. Absolutely, sir.

Mr. FORD. If you were a member of this committee, would you

want other Members of this body to investigate why we have not

passed a prescription drug benefit for seniors at a time when the

economy is performing like it is and prescription drug prices are

spiraling out of control like they are? If you were a Member of this

Congress, would you not be interested in those issues, Mr. Lindsay?

Mr. LINDSAY. Yes, sir.

Mr. FORD. Ms. Mills.

Ms. MILLS. Yes.

Mr. FORD. Mr. Ruff.

Mr. RUFF. Yes, sir.

Mr. FORD. I would imagine they’re not alone, Mr. Barr, Mr.

Chairman. At some point, it has to come to an end.

It’s unfortunate that it had to be framed in a joke the other night

by the President at dinner with members of the press, but he said

we only have 7 more months to investigate him. I would hope that

we would not take him up on his word. You all have been great

in not taking him up on his word. I would hope that this one time

that you would remain consistent on that front and let us get back

to the business of the people. Listen to what we’re debating. We’re

debating e-mails.

Mr. BARR. The gentleman’s time has expired. I recognize myself

for 5 minutes.

Mr. Ruff, in December 1998, as a matter of fact by letter dated

December 8, 1998, Judicial Watch which, as you know, is representing parties in the Alexander versus the FBI case before

Judge Lamberth, they sent a letter to Mr. James Gilligan of the

U.S. Department of Justice Civil Division Federal Programs

Branch in which they raise the issue in December 1998 of the missing e-mails. And this was in the context of the Alexander case that

they ask the Department of Justice and they included the December 28th issue of Insight magazine article on this that I know

you’re familiar with. Have you ever seen that letter? Did that letter

come up in any of your conversations or the interface that you conducted on these matters with the Department?

Mr. RUFF. Perhaps I could see a copy of it now, and I would be

happy to tell you.

Mr. BARR. You have no independent recollection.

745

Mr. RUFF. I do not, no.

I have no recollection of ever having seen this letter or of the attachments that purport to have been with it.

Mr. BARR. Did you have any discussions either at that time or

contemporaneously in that time period with anybody at the Department of Justice about the request from judicial watch?

Mr. RUFF. There were—I couldn’t tell you whether they were

contemporaneous or not. I would, on occasion, over the course of

my tenure in the White House, meet with one or more of my staff

and one or more of the Justice Department lawyers who were helping us respond to various matters in connection with this litigation.

I have no recollection of any discussion that would be contemporaneous or related to this letter.

Mr. BARR. Mr. Lindsay, last month you testified, and I don’t remember your exact words, and knowing how very particular you

are, appropriately so, I’m not going to put any words in your

mouth, but the testimony last month, or in March when you testified here, you, I believe, testified that the issue of getting this

whole matter of the missing e-mails resolved as being very important; is that accurate?

Mr. LINDSAY. I believe at that point I was referring to the—resolving the technical problem because that’s all I really knew about

at that time.

Mr. BARR. But you knew there was a serious problem, or are you

now maintaining that——

Mr. LINDSAY. No, I am saying there was a problem and——

Mr. BARR. OK. I’m not interested in—not trying to put words in

your mouth. If you would please, in that context then, refer to exhibit 94. This is an e-mail of February 24, 1999. Mr. Heissner, Karl

Heissner writes that on the current status of the Mail2 reconstruction, which is the serious problem that we’re talking about here, is

that he is, quote, awaiting funding and management decision to

proceed.

Mr. Heissner testified, as I know you’re probably aware, yesterday to this committee that no one in the Office of Administration

management, including yourself, ever gave him any funding or direction to proceed with the reconstruction of the unreported e-mails

until early this year, the year 2000, long after the problem had already been reported, was well-known and actually had been reported even in the media.

Why was Mr. Heissner prevented from moving forward and

never given the authorization to move forward with the reconstruction, in other words, to resolve this problem?

Mr. LINDSAY. Sir, the—as I stated in my testimony on March

23rd, November, when we discovered, when we were able to resolve

the Mail2 problem in terms of solving the glitch, the first priority

that I had was addressing the Y2K problem. This is the time period where we received the money that we needed to address the

Y2K problem after a long period where we hadn’t received enough

resources to address the technical concerns of the Executive Office

of the President and the Presidency of the United States.

Mr. BARR. Were you not aware of any subpoenas, lawful subpoenas, failure to comply with which could subject individuals to conVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00753 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
746

tempt of court, if not obstruction of justice charges that were outstanding?

Mr. LINDSAY. As we discussed before, sir, there are two different

issues. The issue of compliance with the subpoenas and whether or

not the information that was provided was complying with those

subpoenas was a determination that was made by the counsel’s office. The other problem—— Mr. BARR. They’ve never made that determination. The only determination that we have is Ms. Mills’ testimony today that somebody else not before this committee with regard to just that one

stack of e-mails had made a determination, not reviewed apparently by anybody, prior to the decision being made and finalized,

that these materials would not be sent over to whoever had requested them by subpoena. But there’s never been any determination made because the reconstruction has never been made with regard to anything other than just that one stack of e-mails.

Mr. LINDSAY. As it was already testified earlier today, sir, the information as to the impact of this particular glitch on searches it

was believed, believed by me and believed by people in the counsel’s office, that it did not have an impact on those searches. Therefore, I was left with problem No. 2.

Mr. BARR. How can you, with a straight face, say that? We’re

talking about hundreds of thousands of e-mails that have not been

reviewed.

Mr. LINDSAY. Yes, sir.

Mr. BARR. You’re making a statement that you feel comfortable

that there’s nothing in there that’s subject to any subpoenas, because if you can’t make that statement, you can’t state that all of

the subpoenas have been complied with.

Mr. LINDSAY. No. 1, sir, I did not know how many e-mails there

were at that time. I’m testifying about the state of my mind at that

particular time. All I knew about what was the fact—— Mr. BARR. Of course, you are. You wouldn’t have any way of

knowing.

Mr. LINDSAY [continuing]. That would seem to show that there

was no problem with the production of any kind of subpoenas.

Therefore, sir, I was left with one very important other issue, and

that was the technical issue of how to resolve it. Resolving that

technical issue, we needed not only money but also—— Mr. BARR. So when you’re talking about resolving it, you’re not

talking about resolving it, you’re just talking about solving the

technical problem from that point forward?

Mr. LINDSAY. No.

Mr. BARR. That in your mind, your state of mind, as you call it,

is resolving the issue, is that what you’re talking about?

Mr. LINDSAY. That’s not an accurate characterization of my testimony. What I said is when I first came into contact with the issue,

I was interested in resolving the issue. That meant resolving the

issue if you, the counsel’s office, came back to me and said that

there was a problem with the e-mails, then I would go back and

then take whatever—— Mr. BARR. Who assured you that there was no problem?

Mr. LINDSAY. It’s not that I was assured that there was no problem. The information that came to me was that the information

747

that I provided after the task was duplicative information. Therefore, the information—— Mr. BARR. Information duplicative of what?

Mr. LINDSAY [continuing]. Searches.

Mr. BARR. Information duplicative of what?

Mr. LINDSAY. That the information had already been provided in

other information.

Mr. BARR. How would anybody know that, Mr. Lindsay?

Mr. LINDSAY. I did not—I don’t know how they did it. I don’t

know the process in terms of what was going on.

Mr. BARR. You’re obviously a very bright man.

Mr. LINDSAY. Thank you, sir.

Mr. BARR. And you made sure we understood that last time. You

told us your degrees and so forth, and I agree with that. How can

you make the statement that hundreds of thousands—let’s not

even use the word hundreds of thousand—a large number of emails, that nobody has seen—— Mr. LINDSAY. Sir, I worked in an environment where a lot of people who—— Mr. BARR [continuing]. That would be subject to being provided

pursuant to a subpoena when nobody’s looked at them?

Mr. LINDSAY. The determination as to whether or not that information met or was required by subpoena or was responsive or not

was a determination made by the counsel’s office.

Mr. BARR. Who? Who?

Mr. LINDSAY. I don’t know who in the counsel’s office. I was sitting here learning about some of those components.

Mr. BARR. Who told you that there was nothing in those missing

e-mails subject to any subpoenas?

Mr. LINDSAY. I don’t recall.

Mr. BARR. Oh, come on. You’re stating under oath that somebody

made that statement to you and you cannot recall, as you sit here

today, who in the White House counsel’s office told that to you?

Mr. LINDSAY. I’m not stating under oath that someone said that

to me. What I’m stating is that the information that I provided——

Mr. BARR. Did they take any notes to that effect?

Mr. LINDSAY [continuing]. Was a duplicate of information that

was provided, and therefore it did not present an issue—— Mr. CUMMINGS. Mr. Chairman, is there a time limitation?

Mr. FORD. Can I ask a unanimous consent request that we extend the chairman’s——

Mr. BARR. That’s OK. We’ll come back. Who seeks recognition?

Mr. CUMMINGS. Ms. Norton.

Mr. BARR. Gentlelady from the District of Columbia is recognized

for 5 minutes.

Ms. NORTON. I thank the chairman and I thank the gentleman

from Maryland.

Mr. Chairman, I regret the troubling presumption of wrongdoing

that surrounds these hearings. Anyone who has been at the bar

knows that in a criminal or civil trial, a person’s reputation for integrity outweighs very heavily on the outcome. Therefore, I’d like

to say a few words about the integrity of these witnesses.

The allegations and the evidence that has been adduced so far

fails altogether to override the reputations they have at the bar

748

and in the community. I see no evidence that they would sacrifice

reputations they have built over a period of years to avoid their

legal or ethical responsibility.

I know Charles Ruff personally, and I know him by reputation

at the bar and in the city where he has lived for many years. Although one of the most successful lawyers in the country at a time

when, in the early nineties, when there was a great deal of crime

in the District, Charles Ruff offered his services to the city, not as

a lawyer, but to do whatever he could for children. The officials of

the District of Columbia could only scratch their heads as to how

they could use such a distinguished lawyer for children. Whenever

he speaks in this city these days, he does not speak about the bar

or about lawyers, he speaks about children.

Finally, the city convinced him that he should become the corporation counsel of this city where he led the city during a particularly troubling period and distinguished himself and made a world

of difference for having left private practice to do so. He was the

president of the bar in this city. On any list of the leading lawyers

in the United States of America, Charles Ruff would be near the

top of that list.

Cheryl Mills is one of the bright lights of her generation. I mean

to see to it that her remarks at this hearing go into the congressional record. She owes her meteoric rise not only to her extraordinary proven ability, but to her wonderful integrity, proved at so

young an age that the President of the United States was willing

to put his entire, his entire fate in her hands until she decided to

do what few lawyers of any generation would do and, that is, to decline to be the counsel, the White House counsel to the President.

I do not know Mr. Mark Lindsay personally, but I do know him

by reputation because he served ably one of the pillars of the

House, Mr. Lewis Stokes, who would have had no one on his staff

except a person of the most stellar reputation.

It does seem to me that these witnesses are at least entitled to

have put in the record what others think of them, and when I insist that what I think of them goes into the record, I want it to be

known that I am speaking for thousands of others.

I thank you, Mr. Chairman, and I yield back the remainder of

my time.

Mr. BURTON [presiding]. The gentlelady yields back the balance

of her time.

Mr. Cummings, did you have some comments you wanted to

make?

Mr. CUMMINGS. I just want to echo my colleagues’ kind words

again to our witnesses. You know, as I’ve sat here, Mr. Chairman,

hearing after hearing, I have been a witness to people’s characters

being torn apart, and you know, when I think about government

service, our government employees are so often, Mr. Chairman, underpaid. So many of them work very, very long hours, and they

give their blood, their sweat and their tears, and they come into a

room like this and are often raked across the coals. And Ms. Mills

is right, you know, the question becomes who would go in government service, I mean, when they see this.

And that’s why I join in with Mr. Ford and Mr. Waxman, and

certainly my colleague, Ms. Norton, and take a moment to simply

749

say thank you. Thank you for all that you have given. Thank you

for not only touching us as adults, but someone once said our children are the living messages we send to a future we will never see,

and Mr. Ruff, you will be interested to know, I was walking down

the hall just a few moments ago and a young man, I think he’s a

lawyer, I overheard him say, you know, Mr. Ruff is a guru of the

Washington bar. I mean, that’s a hell of a statement, it really is.

I mean this was unsolicited, he was just talking to a friend and

talking about how much he admired you, and you know, I think

sometimes we forget that we are all human beings.

I think Ms. Mills said it best, said all of us make our mistakes,

we do some things good, we do some things not so good, but we are

all human beings, and in this life and in this government life, and

the kind of government that we deal with today, I think we all face

some very tremendous challenges, and Mr. Waxman often says that

a lot of times the allegations that are made about people when they

come before this committee, they’re put out there, they’re put out

there into the universe, and you know, the sad part about it is all

the people that hear the allegations, they don’t necessarily hear

what we hear. They don’t necessarily hear a lot of the allegations

literally torn to shreds. And I have seen situations where allegations were made, and by the time a hearing was over, it’s hard to

believe the allegations were ever made because of the testimony

that has come forward.

And for those reasons, I take my moment to simply say thank

you. Thank you for all that you’ve done. Thank you for all that

you’re doing, and thank you for standing up.

Ms. Norton was talking about integrity, and one person has defined integrity as having three parts, Mr. Chairman. First of all,

it’s standing up for what is right, discerning between what is right

and wrong. Second, it is acting on what is right, even to your own

peril. And third, it is telling others what you did so that they can

follow your example. And to our witnesses today, I thank you for

having integrity. No matter what others may say, no matter what

the referrals may be, thank you for standing up for what you believe in, and thank you for being examples to us and our children.

Thank you.

Mr. BURTON. The gentleman yields back the balance of his time.

We will now go to the counsel for his questioning in accordance

with the rule. I will just take about a minute here at the beginning

of his time to say that I understand the accolades that have been

given to the witnesses today, but the fact remains, for over 2 years

the White House has known about these e-mails. The White House

counsel’s office has known about these e-mails. They were under

subpoena from a number of sources to whom all of this information

should have been given in a timely fashion, or at least they should

have been made aware of the glitch that was taking place over

there, but for 2 years, we’ve been held at arm’s length and we

haven’t gotten those documents. So all the accolades and all the

nice things that are being said about the people at the table doesn’t

change the fact.

The fact is that duly subpoenaed documents were kept from the

Congress when the White House had knowledge about them for

over 2 years, and I use the missing tapes in the Nixon case that

750

were a part of the reason that he was removed from office, and

here we have hundreds of thousands of e-mails that may be relevant to a whole series of investigations. We haven’t received them.

We haven’t even been notified about them, even though the White

House knew about them, the White House counsel’s office knew

about them, and yet we continue to hear these accolades, but these

are the facts.

These are the things that need to be made clear to the American

people, that if there’s an investigation going on by an independent

counsel by a committee of Congress and a duly authorized subpoena has been sent, we are entitled to that information, and if the

White House knows about it and they don’t give it to us intentionally, or they keep the information from us intentionally about

a problem over there, then they’re obstructing our investigations

and that’s what this is all about.

Mr. Wilson.

Mr. WILSON. Good afternoon. I’ll be as brief as possible, and

hopefully we’ll soon be out of here, with this panel, anyways. I

want to try and cover two areas, and I’ll tell you what they are in

advance so that we can hopefully be as brief as possible. The first

relates to the search that was conducted that resulted in the materials that were produced to us the day before yesterday, and I’ll tell

you why I want to cover this with a little more specificity.

Mr. Ruff came in for an interview. He’s testifying today. He’s

been very clear that he understood that there was a potential problem that might relate to document production. He told us in his

interview to, and I’ll quote, make sure, in fact, this system which

the problem had not—it is a little bit of garbled syntax, but which

was probably not tainted—the ability to find materials that were

responsive to the special prosecutor’s inquiry, and following from

that, a search was conducted, and Mr. Ruff said today, indeed, that

was the purpose of conducting the search.

So an awful lot was riding on this search. The search, in many

respects, determines whether somebody should or should not have

understood that there was a problem. So I want to ask a few more

questions about that.

The second thing I would like to cover is a second meeting at the

White House. When the Mail2 problem was discovered in June

1998, Mr. Lindsay has taken pains to point out that he testified

last month that he did go and meet with Mr. Ruff. This is something we do know, and we’ve discussed the memo that was drafted

that Mr. Ruff saw and that ultimately that was directed to the deputy counsel for the President.

One thing we learned just in the last week, however, that we did

not know from your testimony previously and we learned this from

Mr. Lyle, Michael Lyle, the director of the Office of Administration,

was that in April 1999, another aspect of this e-mail problem was

discovered, and Mr. Lyle indicated to us that Mr. Lindsay went

back to the White House counsel’s office and told them a second

time about an e-mail problem. And I’d like to cover—we haven’t

discussed that at all today. I’d like to cover that with you, Mr.

Lindsay.

Let’s go back to the search. The question’s been asked, what were

the terms of the search, and just so that we can start from a level

751

playing field, I’ll ask again, Mr. Ruff, do you know what the terms

of the search were?

Mr. RUFF. I do not, Mr. Wilson.

Mr. WILSON. Ms. Mills, do you know what the terms of the

search were?

Ms. MILLS. I do not, and in your statement there was a memo

sent to the deputy counsel to the President, and I’m not aware of

that memo.

Mr. WILSON. If I did I misspoke. I meant to say the deputy chief

of staff at that time, Mr. Podesto. So I apologize. I know it would

not have been you.

Ms. MILLS. Thank you.

Mr. WILSON. Fair enough. Now, Mr. Lindsay, I’ll ask you the

same question—well, I will ask you the same question first. Do you

know what the terms of the search were?

Mr. LINDSAY. You mean the names that were being searched?

Mr. WILSON. Well, we don’t know at all what the terms of the

search were. So I’m asking you what the terms of the search were.

Mr. LINDSAY. I believe that they were the names of certain individuals. I don’t know anything about the terms.

Mr. WILSON. Now, where have you gained that belief from? How

do you know that?

Mr. LINDSAY. The person who conveyed the request for the

search to me, then I conveyed that information to, I can’t remember, I think it was Laura Callahan, and then the search was conducted.

Mr. WILSON. Was the search—was what was conducted to you in

writing?

Mr. LINDSAY. No.

Mr. WILSON. So is it fair to say you had a verbal instruction as

to what you should look for in the e-mails that you could search

from the servers?

Mr. LINDSAY. Yes.

Mr. WILSON. OK. Mr. Ruff, just turning to you, this search was

clearly quite important, because it now stands for the proposition

that there wasn’t a problem, and I’m just—one of the problems

we’re struggling with is why does nobody remember what the

search was supposed to be for, do you know?

Mr. RUFF. That’s a question that I can’t answer for you, Mr. Wilson. I do not, as I have said, know who conveyed the parameters

of the search or any other instructions. There may be such a person

waiting to be identified, but I can’t help you in that regard.

Mr. WILSON. Now if I can, for a second, I’ll turn to you, Ms.

Mills, because it’s our understanding that Mr. Ruff did rely on his

staff, and I can understand him not knowing all of the details of

matters that he delegates to his staff, and this is one reason we’ve

asked you to come here today to try and help us and explain to us

what precisely you were looking for to help you decide that there

wasn’t a problem. If you could, please tell us.

Ms. MILLS. Well, your characterization suggests that I was looking for something, and I think my testimony has been, and I hope

has been clear with respect to the fact, it was my understanding

that OA was undertaking the search, that they were going to provide the e-mails that were missing, that we were going to review

752

them to make a determination as to whether or not they were duplicative or they were e-mails that had not been captured and

needed to be produced.

So what I was anticipating was that there would be documents

that would come, that there would be review conducted of them

and that review would tell us whether or not those materials had

or had not been provided to the appropriate requesters.

Mr. WILSON. You’re clear on that. The part I don’t understand,

I think the committee has a problem with, is how did the Office

of Administration come to conduct a search? We’ve been told by Office of Administration employees that they never conducted

searches of their own volition. They just didn’t go into people’s computers and look for information. We were told that they, in all

other cases, received written instructions and did searches accordingly. Everybody we have talked to has told us that they did not

originate a search term.

So how did the Office of Administration come to be conducting

a search?

Ms. MILLS. As I can only testify from my personal knowledge, I

don’t know the answer to that question.

Mr. WILSON. Do you know who we might turn to to ask that

question of?

Ms. MILLS. I do not.

Mr. WILSON. Do you know whether Ms. Peterson, at any point,

formulated a search term for the Office of Administration?

Ms. MILLS. I do not know whether or not she did, though I would

be surprised, primarily because I provided the materials that came

over from the Office of Administration to her for her to conduct her

review, but I don’t know the answer to that question.

Mr. WILSON. The part that I’d like you to help us out with, if you

can, is that the search was very important, because it ultimately

was going to determine whether there was a larger problem or not,

and two of the principal lawyers in the Office of White House

Counsel, indeed counsel to the President, Mr. Ruff and yourself, although you were only deputy counsel, are telling us they did not

formulate the search, and so one of our—I think it is a legitimate

point of concern—is to try and determine who formulated the

search to see whether there was a problem or not, and there’s not

more I can do, I guess. No one on this panel does know. But did

you ever ask, Ms. Mills, what precisely the search term was?

Ms. MILLS. I did not.

Mr. WILSON. Why did you not ask?

Ms. MILLS. I think there are certain assumptions that you’re

making, and in my testimony I’ve been trying to be very clear that

it was my understanding that the search was being conducted, that

it was going to produce materials that needed to be reviewed

against prior production to make a determination as to whether or

not it had been captured before.

Mr. WILSON. I understand, but we’re very circular here. You’re

telling us that the search was going to be conducted.

Ms. MILLS. It was my understanding that the search was being

conducted, that I was going to be provided with the materials we

then needed to make a determination with respect to whether or

not they were or were not produced previously.

753

Mr. WILSON. Did you ever express any concern as to what the

search would be for?

Ms. MILLS. I didn’t have the requisite knowledge to express that

type of concern, if I were to have that type of concern, but I certainly believed that to the extent there was an issue that it was

going to be, the documents were going to be searched for, and to

the extent that they had not been provided, that we were going to

provide them.

Mr. WILSON. I think here is where we part ways a little bit. I

understand much of what you have said, but you’ve told us you

didn’t have the requisite knowledge. What we do know is that

there were many document requests that had been made to the

White House on many different issues. You were, at the time, focusing on an impeachment inquiry. That’s something this committee has had no interest in, no part of.

But we did have document requests that went to campaign finance matters. There were many requests from other independent

counsels, the Justice Department had requests, and what we know,

and this is why I’m really legitimately trying to work through this

problem with you, what we know is that there was a universe of

documents that had never been looked at, and this is the memo,

and somewhat of the substance of Mr. Lindsay’s discussion with

Mr. Ruff, communicated and Mr. Ruff understood that, and he’s

told us he understood that. He understood that there was a universe of documents that had not been looked at and that that

might have ramifications for production of documents.

So there’s a large universe of—well, there’s a universe of information, and there are many document requests out, and so the

problem we have is we have a folder of information that goes to one

matter, e-mails from Monica Lewinsky to someone else, but there’s

nothing here that goes to campaign finance or any of the other

issues that were being searched. So we’re struggling with what

does the search stand for. Can you tell us what the search as conducted should prove to us?

Ms. MILLS. I cannot. It was my understanding that the e-mails

were being collected and that they were the e-mails that might

have been missed, and that if we received those e-mails, we should

go through them to make a determination as to whether or not

they had been produced or not. That is what we did.

Mr. WILSON. OK. Now Mr. Ruff generously said that the buck

stopped with him, but he did inform us during our interview with

him that he delegated responsibility to look into this problem to his

subordinates, and he gave us a number of names of people who

might have been looking at the matter. Yours was one of them.

Who do we ask or who do we turn to to find out who was really

thinking about this problem? It really appears to us that there’s either extraordinary indifference to the problem or nobody was really

thinking about the problem. Nobody was taking charge of trying to

decide whether there was an issue here.

Was anybody in charge of trying to decide whether there was a

problem?

Mr. Ruff.

Mr. RUFF. Obviously, I am hesitant for all the reasons that have

been both expressed and implicit in today’s hearing to offer any

754

more individuals the opportunity to spend their day in this chamber. All I can do, and truly is all I can do, Mr. Wilson, is to tell

you, as I told you previously, the names of my staff members who

regularly participated in the business of document collection and

response to subpoenas. Beyond that, if I had any insight into who

specifically spoke with OA or otherwise framed the search, I would

give that information to you.

Let me say, although I understand your question, that this does

not, and did not then, and does not now, reflect, in any sense, any

absence of care about the problem. To the contrary, I think the immediate reaction, particularly triggered by the fact that there was

this outstanding independent counsel subpoena on the one issue

that was of particular interest to us at the moment, suggests the

concern we did have and perhaps also suggests the response we

got, because it did relieve us of that concern, led in turn to the conclusion, as I have already acknowledged, not based on what we now

know to be the facts, but the problem really was not there.

Mr. WILSON. From our perspective though, it does appear that

there’s some absence of care because even as we sit here today, no

one is able to really tell us anything specific about what was done

to determine there was an ongoing problem or not. We know there

was a search. We know some materials were searched.

Mr. RUFF. That, I suggest, Mr. Wilson, is not an absence of care;

it is an absence of memory, but if I had the memory, I would tell

you what I knew beyond what I’ve testified.

Mr. WILSON. There are no notes that have been produced to us.

There’s no memorandum. We know when the problem was discovered, it was of such significance that Mr. Lindsay participated in

a process that resulted in a memorandum to the deputy chief of

staff to the President, and within days of the discovery of the problem, you, the counsel of the President, were briefed about a computer problem. This is something that from our perspective, and

obviously it is from our perspective, but this is something that indicates that this is a problem that is out of the ordinary, and you

yourself indicated that there might be ramifications for production

of documents.

And one of the things that’s been very clear to us, it’s been pointed out, that this was a time of great concern. The impeachment

process was—had begun. There was a great sense of angst about

that, but that heightens from a lawyer’s perspective, certainly from

mine, if I knew at a time of great difficulty, such as you were in

at that point, that there was an entire universe of information that

had never been looked at, that is something that would stand out

in my mind. That’s something I’d want to know. I’d want to know

the search terms, how people went after identifying whether there

was or was not a problem. That’s the type of thing I’d want to identify, and we’ll ask other people. But it just appears that nobody can

come up with any recollection as to what they sent the subordinates out, your subordinates out, Ms. Mills, if she sent any of her

subordinates out, it doesn’t appear that anybody can say this is

what we told a particular person to do, to find out whether there

was a problem, and that does indicate some lack of care, and that’s

a charitable characterization.

755

Mr. RUFF. I disagree with your characterization, but I fear

there’s not much more I can offer you.

Mr. WILSON. Fair enough. I understand that. Let me turn for

just a moment, Mr. Lindsay, to April 1999. It’s our understanding

from talking to Mr. Lyle that in April 1999, computer technicians

identified the second glitch in the computer system that indicated

documents were not being captured by the ARMS system, the user

D problem. Were you told in April 1999 about the user D problem?

Mr. LINDSAY. Yes, I was.

Mr. WILSON. And if you could be brief, I’d appreciate that. After

you were told about the user D problem, what steps did you take

to bring that to the attention of any of your superiors or anybody

in the White House? A two-part question.

Mr. LINDSAY. One thing, my role was different. I was no longer

the general counsel at that particular time.

Mr. WILSON. That’s fine, but what steps did you take if any?

Mr. LINDSAY. The primary steps, the drill was essentially the

same in terms of what we did in terms of addressing any kind of

technical problem of this nature, the effort to make repairs and correct the issue as quickly as possible, and I’m happy to report that

frankly we were able to complete the repairs for that particular

issue in a much shorter timeframe than we were with the other

one. I think that’s because, with my best recollection, that’s because people had experience with the other problem, they were able

to address it and get it resolved quicker. There’s greater understanding of the nature of those kinds of issues.

Mr. WILSON. Did you ever go to anybody in the White House

counsel’s office and tell them about the user D problem?

Mr. LINDSAY. Yes, I did.

Mr. WILSON. Now my recollection is that you did not bring that

up in your previous testimony; is that correct?

Mr. LINDSAY. I believe I did.

Mr. WILSON. That you went to the White House in April or thereafter of 1999 and briefed someone in the counsel’s office?

Mr. LINDSAY. I don’t think I said that. I brought up the letter D

problem issue in my testimony.

Mr. WILSON. You certainly did, and there’s no dispute on that,

but did you tell us before that you went to the counsel’s office and

told them about the user D problem?

Mr. LINDSAY. I don’t remember being asked that specific question.

Mr. WILSON. I don’t think you were asked. That’s one reason we

brought you back, and we only learned this recently but it’s not

something you volunteered. Now you went back to the counsel’s office in April 1999, according to Mr. Lyle. First of all, is that correct,

was it April 1999?

Mr. LINDSAY. Yes, sir.

Mr. WILSON. OK. Now that’s not quite a year after the Mail2

problem was first discovered, but it’s almost a year after. Who did

you speak to in the counsel’s office?

Mr. LINDSAY. I don’t have a specific recollection of who I talked

to.

Mr. WILSON. Why did you go to the counsel’s office.

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Mr. LINDSAY. Because there was the potential of having a similar

kind of situation with the other e-mail situation and that would be

my normal course of how I would handle it.

Mr. WILSON. Was it the potential or was it the same type of situation as previously? I don’t understand the use of the word ‘‘potential.’’

Mr. LINDSAY. It was actually a different problem. It was quite a

different problem. It was caused by a different group of people.

Mr. BARR. We understand how it was caused and all that, but

it had the same net result. It resulted in information not being captured in the ARMS system; is that correct?

Mr. LINDSAY. That was my understanding.

Mr. BARR. OK. So you went back to the White House counsel’s

office to tell them something. Apart from—well, and you just told

us, so I can’t ask too many times, but you don’t recall who you

talked to. Was it just one person?

Mr. LINDSAY. I don’t recall, sir.

Mr. BARR. On this occasion did you draft another memorandum

as had been done in June 1998?

Mr. LINDSAY. No. I requested a memorandum be prepared for me

describing what the problem was and for my folks to look at it and

to try and come up with some kind of resolution.

Mr. BURTON [presiding]. Let me interrupt just a minute. I want

to make sure this point is very, very clear. You went to the White

House counsel’s office when the first e-mail problem arose, but you

don’t remember who was there other than Mr. Ruff, and you don’t

remember who you talked to if there was someone else there, and

now you’re telling us that there was a second time that you went

to the White House counsel’s office after having been aware of the

first e-mail problem, now you had a second e-mail problem. You

must have known the gravity of the situation, but the second time

you went, you still don’t know who you talked to, you can’t recall;

is that correct?

Mr. LINDSAY. That is correct, but it’s very important to understand that there were all—there were regular problems with email, not of the nature that I think would interest this particular

committee, but interest me and my staff from a technical perspective of having people not being able to have access to e-mails.

Mr. BURTON. But the point is, by this time there must have been

awareness even in your office, that there were subpoenas outstanding, there was an e-mail problem, you have gone back with the second e-mail problem, you have talked to them and you still don’t remember who you talked to?

Mr. LINDSAY. No, sir, I do not recall.

Mr. WILSON. Let’s pick up the narrative if we can. You went to

the White House counsel’s office, you talked to somebody, you don’t

recall the name of the individual you talked to. What was communicated to you, if anything?

Mr. LINDSAY. I don’t have any specific recollection of anything

being communicated back to me other than we were going to continue to look into the issue and try to resolve it, which is exactly

what we did.

Mr. WILSON. ‘‘We’’ as you or ‘‘we’’ as the White House counsel’s

office?

757

Mr. LINDSAY. No, my staff.

Mr. WILSON. We just talked about the search that was conducted. Monica Lewinsky e-mails were found, they were compared,

they were apparently duplicates. You’ve come back with a second

problem nearly a year later. Do the Monica Lewinsky e-mails that

were searched for the previous year stand for any proposition that

there was no problem that had to be considered by White House

counsel’s office? Did you discuss this search of Lewinsky e-mails

from the previous year?

Mr. LINDSAY. I don’t have a specific recollection of doing that, sir.

Mr. WILSON. Did you communicate at the time that there was a

problem that might relate to document production?

Mr. LINDSAY. I may have. I don’t have a recollection of doing it.

I think it was obvious because of the nature of the issue that it

might have an impact on that kind of an issue. The issue still remained that the previous example of a different kind of circumstance but still an e-mail issue, there was duplicate information that was provided.

I also knew that there were lots of other means for that information to be provided. So if it was an issue, that it very well might

have been, but only after we were able to do an assessment of the

scope and the breadth of the issue would we be able to make any

kind of an assessment.

Mr. WILSON. I think it’s interesting for you to use the word obvious in relation to document production issues. It’s obvious that it

might have had some ramifications in document production. It’s interesting because it seemed like people in the White House counsel’s office didn’t find anything obvious in it at all. It sounds like,

from everything we’ve seen, from the documents we’ve reviewed,

from the people we have talked to, that people didn’t understand

something that is to us relatively simple to understand.

Mr. LINDSAY. That’s not my understanding and recollection of the

testimony I have heard today.

Mr. WILSON. No. I said what is easy for us to understand, and

that’s a statement I made, and that doesn’t go to testimony. I

mean, the proposition is relatively simple. There is a universe of

documents that have never been looked at. To this day, nobody

knows what is in that universe of documents. That’s not a particularly difficult concept for anyone to understand, and I think Mr.

Ruff immediately saw that when he gave the instructions he gave

as soon as he was briefed.

It’s just our problem is we’re trying to find what was done to

really understand, to come to grips with whether there was a problem. The computer technicians that we’ve talked to are all very

clear there was a problem. They knew it. They understood it. You

seem to have understood it. Mr. Ruff seemed to have understood

it. And somewhere there’s a disconnect. That’s why we’ve asked

you the questions, and I appreciate the fact you can’t remember

who you talked to and you can’t remember what you discussed.

Let me just ask one other—turn to something else very quickly.

Mr. Lindsay—before I turn to that, I’ll ask, courtesy of my memory

being improved here, Ms. Mills, did you ever learn about the letter

D problem?

Ms. MILLS. No, I did not.

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Mr. WILSON. Mr. Ruff, were you ever informed of the letter D

problem?

Mr. RUFF. I have no recollection of being informed of that, Mr.

Wilson.

Mr. WILSON. Mr. Lindsay, maybe you can help us. The first time

you went to talk about the Mail2 problem, you sought a meeting

with Mr. Ruff.

Mr. LINDSAY. I was directed by the assistant to the President for

Management and Administration to talk to Mr. Ruff.

Mr. WILSON. OK. Now, the second time you went back to talk

about this type of computer problem, were you directed by anybody

to go back to the White House counsel’s office?

Mr. LINDSAY. No, I was not.

Mr. WILSON. I mean, when you were first informed of the user

D problem, did you tell your superiors about this problem?

Mr. LINDSAY. Yes, I did.

Mr. WILSON. And did you discuss whether you should go back

and inform White House counsel’s office a second time?

Mr. LINDSAY. I told them that I would.

Mr. WILSON. And what was their response?

Mr. LINDSAY. That that was a good idea.

Mr. WILSON. But this time, and I understand Mr. Ruff said he

doesn’t recall, maybe you did go to Mr. Ruff, but would there be

a reason go to anybody other than the counsel to discuss this type

of problem?

Mr. LINDSAY. There were other people that may have been involved and that I may have run into or dealt with on other issues

that I may have discussed the other issues with. So it’s possible

there’s another attorney in the counsel’s office I may have discussed it with. I just don’t recall who it was.

Mr. WILSON. Now, one thing we’ve heard from people we’ve

talked to is that they—people who worked for the Office of Administration had a clear understanding that if they didn’t have either

the money or the personnel to ultimately—and I’ll be very simplistic here—but fix this problem, then the problem wasn’t going to get

fixed. The question I ask of you is, first, did you ever consider asking Congress for additional funds to help fix this e-mail problem?

I know it’s been done in the year 2000, in March 2000 and starting,

but before the year 2000 did you ever consider asking Congress for

funds to help fix the e-mail problem?

Mr. LINDSAY. I think that the answer to the question has to be

placed into context. In November 1998——

Mr. WILSON. Well, just asking if you ever considered going to

Congress and asking——

Mr. LINDSAY. If I ever considered it, yes, I did consider it.

Mr. WILSON. Did you ever ask Congress or instruct anybody else

to ask Congress for funds to fix this problem that we are talking

about today?

Mr. LINDSAY. Yes, I did.

Mr. WILSON. You did? When was that?

Mr. LINDSAY. March 2000.

Mr. WILSON. Well, I should have been a little more broad. Away

from the year 2000—and let me ask, in 1998, did you ever ask ConVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00766 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
759

gress or instruct anybody to ask Congress for funds to help fix this

problem?

Mr. LINDSAY. That’s what I’d like to place into context.

Mr. WILSON. Well, did you or did you not?

Mr. LINDSAY. I did not, and the reason why I did not is because

we were faced—at the time I was trying to get money to address

the Y2K problem. That was a recognized national crisis issue, and

we did——

Mr. WILSON. We gave you money on that.

Mr. LINDSAY. I just want to place into context I needed that

money in September. I did not get it until November. Though it

was very necessary, I didn’t get it. That was an issue that would

keep us—it would make the e-mail issue moot because the e-mail

system resides on systems that were not going to work when the

year turned over. So that issue had to be resolved first. And at that

point my staff came to me and said you will not be able to make

that timeframe because we do not have the resources.

Mr. WILSON. You have pointed that out before, and we appreciate

it. Did you consider Congress had any role in the prioritization of

how funds would be allocated? It seems you made a unilateral decision, but did Congress not have any role to play in assessing how

funds might be spent?

Mr. LINDSAY. As a matter of fact, sir, at my appropriations hearing we discussed the budget for the Executive Office of the President. Ninety-eight percent of the questions that I remember were

about Y2K and the fight to get the resources to address a problem

that I believe that I had a mandate from Congress to do everything

that was necessary to make sure that we met the requirements

that we needed to. We were starting late because of a lot of other

circumstances, and so it was very, very clear and obvious to me

that Congress wanted us not to fail to meet the Y2K deadlines.

They wanted us to spend those moneys responsibly, and that is

what we endeavored to do.

Mr. WILSON. Fair enough. One last question. Mr. Ruff, did you

ever speak with Earl Silbert about any Northrop Grumman matters at any time?

Mr. RUFF. Ever?

Mr. WILSON. Well, actually, yes, ever.

Mr. RUFF. Because I can’t recall ever speaking to Earl about this.

I suppose somewhere in the course of our private practice the issue

of some Northrop Grumman matter may have surfaced, but I have

no recollection of that.

Mr. WILSON. In September 1998 do you have any recollection of

having any conversations with Mr. Silbert about any matter pertaining to Northrop Grumman?

Mr. RUFF. I do not. I’d be perfectly happy to have my memory

refreshed, but I don’t have any recollection.

Mr. BURTON. Counsel’s time has expired. Counsel.

Mr. SCHILIRO. Mr. Lindsay, yesterday we went over this. You

weren’t here. I just want to go over it with you.

When counsel was just asking you questions about funding in

1999, the decisionmaking process then wasn’t focused on a response to subpoenas or subpoena compliance. The issue, as we unVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00767 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
760

derstood it yesterday from the testimony we received, it was an archival issue?

Mr. LINDSAY. Exactly, sir.

Mr. SCHILIRO. The mindset at the White House at that point

wasn’t that you were violating subpoenas or weren’t producing information to subpoenas but that you should fix the problem because there was an archival responsibility that had to be met to

satisfy Federal law; is that correct?

Mr. LINDSAY. Exactly, and keep in mind that we had been engaged in reconstruction of Reagan era, Bush era and early Clinton

administration tapes, which I discussed on numerous times with

our appropriations folks. I had people from the committee come

down and view the tapes. The issue of reconstruction and the issue

of the archival issues were all folded into one, and those were

things that I had no qualms about discussing with my appropriators and did.

Mr. SCHILIRO. So is there anything else that we need to know

about the 1999 decisionmaking process in getting funding or not

getting funding?

Mr. LINDSAY. The only other thing I would add is that it’s easy

now to look back and look at the situation for Y2K and not appreciate the severity of the circumstances. But for us, after coming

from a period of having less funding and an antiquated information

technology network, we were faced with a prospect of not having

a system operating that would serve the President of the United

States. That was something that, frankly, we had to do everything

in our charge to make sure we didn’t do. We had that mandate

from the Appropriations Committee, and we got it we felt from

Congress in terms of their support to go about doing that, and that

what we endeavored to do, and we placed that as our first priority.

And because all of these other issues of the operation of the e-mail

system and other systems would become moot if our computer systems did not operate properly.

Mr. SCHILIRO. I assume your thinking would have been differently had you thought that this was a subpoena compliance

problem.

Mr. LINDSAY. That is exactly correct, sir.

Mr. SCHILIRO. And notwithstanding the Y2K problems, you

would have devoted whatever resources had to be devoted in order

to meet the requirements of subpoenas?

Mr. LINDSAY. Exactly correct, sir.

Mr. SCHILIRO. Mr. Ruff, counsel made the point which I think is

the accurate one, you had no idea of the content of the e-mails, you

testified to that before, so that the idea that somebody was making

a conscious effort from keeping these e-mails public would be inconsistent with the notion that you didn’t know what was in the emails? There might be exculpatory material there, so why would

you be trying to keep something quiet if you had no idea what the

content was.

Mr. SCHILIRO. Exactly so.

A broader statement I suppose is appropriate which is, good, bad

or indifferent information, we would never have kept something

quiet.

Mr. SCHILIRO. Mr. Ford.

761

Mr. FORD. Very quickly, I want to ask counsel if he wouldn’t

mind, in his mind was it more important for—and I appreciate our

counsel clarifying some of these issues for all of us and perhaps

even some on your side of the aisle, but would you believe—Mr.

Chairman, perhaps you can answer as well—would you believe it

was more important for them to satisfy an archival responsibility

or to ensure the President of the United States and all that the

Presidency brings that the operating system at the White House

and the information technology system at the White House did not

collapse?

Again, I appreciate Mr. Lindsay pointing out for us that at this

point it’s easy to say that perhaps we overreacted to a potential

Y2K problem, but in light of the hearings held in this committee

by Mr. Horn, by the concerns raised by other committee members,

Mrs. Morella as well as Members on this side of the aisle, do you

believe that perhaps—I’m suggesting to counsel as well, if he

wouldn’t mind responding—that they acted inappropriately or perhaps wrongly for prioritizing the way they did?

I would argue that even if you had been subpoenaed that I would

hope that your first priority would have been to ensure that the operating systems at the White House did not collapse. That would

seem to me—but in light of the fact that that was not the case, Mr.

Chairman, that indeed it was a simple or near archival responsibility now that I understand, would your counsel say that—— Mr. BURTON. I’ll respond by saying that they were not mutually

exclusive. The funds could have been acquired to look into the email problem and hire the personnel necessary to get to the bottom

of the e-mail problem at the same time they were dealing with the

Y2K problem, but they never brought to the attention of the appropriations subcommittee this problem. In fact, it’s deliberately

crossed out, and that’s one of the things we’ve tried to find out,

why was that crossed out, why was it not put into a memo that

was going to go—— Mr. FORD. Reclaiming my time for one moment, Mr. Chairman,

but if there was not a subpoena compliance issue problem, why

would anything that you say be relevant? And, two, if you were in

their shoes, sir, would your priority not have been to ensure that

the White House operating system was Y2K compliant? Would that

not have been your focus?

Mr. BURTON. Well, the counsel has the time. That’s fine. If you

ask me a question and you want me to answer it, let me finish the

answer. Don’t reclaim your time. We are not on the House floor.

If you want me to answer a question, I’ll do it. If not, don’t ask me

any questions.

Mr. FORD. Mr. Chairman, you’re the chairman of the committee,

sir, but I can reclaim my time if I choose. I’m asking you a question. If you choose to answer it, you can, but I will reclaim my

time. You may be chairman of this committee—you can treat these

witnesses the way you choose, but you can’t treat members of this

committee any way you choose. So I absolutely defer to you to answer the question, but I will not take orders from you in terms of

when I can reclaim my time. Again, you can treat Mr. Ruff—you

can disrupt Ms. Mills’ schedule and Mr. Lindsay’s schedule, but

you will not——

762

Mr. BURTON. You do not have the time. The counsel has the

time.

Mr. FORD. This is our time.

Mr. BURTON. It’s the counsel’s time.

Mr. FORD. He’s yielded to me.

Mr. BURTON. It’s the counsel’s time. If he yields to you, that’s

fine, but don’t start telling me it’s your time.

Mr. FORD. If you, Mr. Chairman, were working at the White

House and charged with ensuring the White House operating system was Y2K compliant and you had a charge also to update this

archival system, this responsibility that Mr. Lindsay has spoken of

and our counsel, what would you have done? And I yield to you if

my counsel believes it’s OK, and I believe that he does, Mr. Chairman, and I would ask your counsel as well who’s whispering in

your ear now if he were there what would he have done.

Mr. BURTON. The least the White House could have done, the

least was to tell the relevant committees of Congress that had subpoenaed documents and the independent counsels that there was

a problem. They chose not to tell us anything, none of us, even

though legitimate subpoenas had been sent. So even if they weren’t

going to solve the problem, the problem should have at least been

brought to our attention.

Mr. FORD. Again, if you were in their shoes, what would have

been your top priority, Mr. Chairman, at a time when the Nation

was braced to deal with a computer breakdown, a collapse of our

banking system, our FAA and other important government agencies, what would you have done, sir? Would you have done anything different at the time in which Mr. Lindsay was faced with

tackling a problem that I would imagine none of us would have

probably wanted.

Mr. BURTON. I would have done something different, and I’ve explained that, and I will explain it one more time. They’re not mutually exclusive. What I would have done is I would have asked the

Congress, the Appropriations Committee, for the money to take

care of the e-mail problem. Because all they needed was the money

and the personnel, and they didn’t even ask the Congress for it. In

fact, it appears as though they didn’t want the Appropriations

Committee to know about it because they didn’t want the e-mail

problem brought to the surface.

Mr. FORD. It appears to me, and I think any reasonable observer

could probably agree, that what we have is a problem and a fundamental problem is that you guys have answered questions sufficiently, those at the White House, but some on this committee are

looking for different answers, and unfortunately you cannot provide

the answers they want because it’s simply not true.

Now, I can respect the fact, Mr. Chairman, that those on your

side—and, you know, you suggested it’s a mutually—they’re not

mutually exclusive. I’m glad you all made the decision that you

made at the White House in terms of prioritizing which responsibilities were more important. I can assure you that if you had followed the lead of this chairman and this Republican side here on

this committee that not only would you have been back before this

committee answering questions as to why you allowed the White

House operating systems to collapse, that you would have had this

763

Congressman and Congressmen all throughout this Chamber,

Democrats and Republicans, lambasting you, Mr. Lindsay, and

your office for following the lead of this chairman in trying to fulfill

an archival responsibility because of this perverse and bizarre and

seemingly endless appetite we have for Monica Lewinsky and all

that that entails.

I am proud to say that this White House prioritized correctly. I

am pleased and refreshed and somewhat surprised to hear that Mr.

Chairman has said that maybe if you all had come back and made

the request we would have provided the resources. I hope, Mr.

Ruff, that you’re probably pleased to hear this as well with your

passion for children. Perhaps if we figure out a way to come before

this committee and ask for more moneys for school construction

perhaps we can persuade this chairman and others on that side to

go before the Appropriations Committee to make that request as

well.

I’m pleased you made the decision that you made. I’m pleased

that you’re here today. It’s unfortunate, Ms. Mills and others, that

your schedules have been disrupted, but it is my sincere hope that

when all of this is over, and we only have 7 months left, thank

God, that we will offer the three of you and so many others in this

administration whose reputations have been smeared and tarnished an apology from this committee, starting with this chairman, this committee, and the others in this Congress for all that

we have put you through.

Ms. Mills, I apologize, Mr. Lindsay, I apologize, Mr. Ruff, I apologize, not only to you but to your families for all that you’ve had to

go through, not because we’ve asked these questions, these are legitimate questions, we have an oversight responsibility here, but I

apologize for the personal attacks, I apologize for the incredulous

behavior of some of my colleagues and more so again I apologize

again for this bizarre appetite for more Monica Lewinsky.

With that I yield back to my counsel whom I hope would yield

back to the chairman.

Mr. SCHILIRO. Mr. Chairman, we have 20 minutes remaining and

we’ll yield it back.

Mr. BURTON. The gentleman yields back the balance of his time.

Who seeks time on our side? No one seeks time. Mr. Barr.

Mr. BARR. Mr. Lindsay.

Mr. LINDSAY. Yes, sir.

Mr. BARR. I think you testified before this committee last month

here again that your No. 1 objective was to make sure that this

problem was resolved. And we went into what exactly that meant.

Leaving aside our different interpretations, obviously some substantially different, of what ‘‘resolve’’ means, yesterday again going

back to exhibit 94, and Mr. Heissner’s testimony, you may recall

that Mr. Heissner made corrections to a bullet point relating to the

MAIL2 reconstruction. Both Mr. Heissner and Mr. Lyle testified

yesterday that these changes were made in preparation for your

testimony before congressional appropriators on March 2, 1999. Mr.

Lyle also testified that Kate Anderson of your staff deleted this corrected bullet point from the final memo they used to brief you for

the appropriations hearing. Were you aware that this deletion had

taken place?

764

Mr. LINDSAY. What exhibit number is that, sir?

Mr. BARR. 94.

Mr. LINDSAY. 94? That’s the Heissner e-mail is what I have got

it as. Is that the one you’re referring to, sir?

Mr. BARR. The Heissner.

Mr. LINDSAY. OK. Got it.

Mr. BARR. So you were aware that that deletion had taken place?

Mr. LINDSAY. No, I was not, sir.

Mr. BARR. You were not. OK. Was the deletion of an accurate description of the MAIL2 problem from a memo used to assist you in

informing Congress consistent with trying to do your best to resolve the e-mail problem?

Mr. LINDSAY. First——

Mr. BARR. First inconsistent.

Mr. LINDSAY. First, I think it deserves a little explanation. First,

the briefing book was a briefing book for me to testify before Congress. I didn’t need briefing points on matters that I already knew.

I needed briefing points on those matters for which I was unfamiliar or had numerical information, data, personnel changes, things

like that. That’s the kind of information that belonged in the briefing book, not information about something that I was familiar.

Therefore, though I didn’t know it at the time that Ms. Anderson

removed that information, I believe it would be appropriate for her

to do so because she knew that that’s something I already knew

something about and it would be inappropriate to be included in

my briefing book. And the briefing book was for me, not for the

members of the committee. If they were to ask me a question about

that matter at the time or at the hearing they could have asked

me the question.

Mr. BARR. Somebody used—if somebody had in mind a common

sense notion of what a briefing book is and that is to place those

items that are important for a person testifying before Congress,

that is not the way you would use a briefing book?

Mr. LINDSAY. No.

Mr. BARR. The only thing that would be in a briefing book in

preparation for preparing you to speak to a committee are things

that you don’t know?

Mr. LINDSAY. Things I don’t know, essentially or very, very detailed information, numerical data, things like that that I may receive questions about so I could respond to the questions to the

committee.

Mr. BARR. There were bullet items in there on things that you

did know like Y2K?

Mr. LINDSAY. The Y2K issue is, as you can imagine——

Mr. BARR. It’s there because it was important.

Mr. LINDSAY. It was there because it was a vast issue. It

involved——

Mr. BARR. An important issue?

Mr. LINDSAY. That also, sir.

Mr. BARR. It was an important issue.

Mr. LINDSAY. That also.

Mr. BARR. The MAIL2 problem wasn’t there?

Mr. LINDSAY. Because I already knew about it, sir.

765

Mr. BARR. I believe it was also your testimony when you testified

before Mr. Kolbe’s subcommittee you never even brought the

MAIL2 problem to his attention?

Mr. LINDSAY. No, I didn’t. Mr. Kolbe asked me most questions

about Y2K and my opening statement and most of the discussion

was about Y2K.

Mr. BARR. So Mr. Kolbe just didn’t ask the right questions?

Mr. LINDSAY. No, I had talked with people on the committee

about reconstruction issues in the past or at the course of the relationship that I had with the committee. The issue of the day was

getting the resources and they had expressed very significant concerns about us providing the appropriate justification for receiving

the resources that we needed to get. I knew that if I was unsuccessful in getting those resources, I would fail in my mission to get

the resources to help.

Mr. BARR. The best way to get them would be just to not bring

it up?

Mr. LINDSAY. No. I did bring up the Y2K issue. That’s why I

talked about it.

Mr. BARR. I’m talking about the MAIL2 issue, not the Y2K. The

MAIL2 issue was not brought up?

Mr. LINDSAY. No, it was not brought up.

Mr. BARR. It was specifically deleted?

Mr. LINDSAY. No, it was not specifically deleted from any kind

of——

Mr. BARR. It was inadvertently deleted?

Mr. LINDSAY. No, it was not deleted from any topic for discussion. It was removed from the briefing book which contained information for which I was not familiar. Primarily for detailed information which I didn’t have a specific recollection, I would have to refresh my recollection and I could use as a reference.

Mr. BARR. You’re saying you were familiar with the MAIL2 problem?

Mr. LINDSAY. Very much so.

Mr. BARR. And you have also testified that it was an important

issue; its resolution was an important issue?

Mr. LINDSAY. It was an important archival issue, not as important as receiving resources for Y2K and answering the other questions of the committee. They had——

Mr. BARR. It was not an important issue to assure compliance

with lawful subpoenas, it was important only for archival issues?

Now we’re splitting that hair?

Mr. LINDSAY. Of course compliance with lawful subpoenas is very

important, but that was not the issue that was before me then and

that wasn’t the issue that was in question there. At least that

wasn’t my——

Mr. BARR. That’s right. Your definition of resolving the issue

meant only to the technical question of resolving the issue from

that point forward?

Mr. LINDSAY. In this particular instance, the e-mail issue was an

archival issue and a technical issue of resolving a glitch. It didn’t

relate at that time in my thinking to production of documents or

subpoenas.

766

Mr. BARR. Bottom line is you didn’t bring it up, even though

you’re trying to convince us that you thought this was an important issue and you wanted something done with it and it was a

high priority with you. But you didn’t even take advantage of an

excellent opportunity before the chairman of the subcommittee that

had authority to basically provide funds?

Mr. BURTON. Mr. Shays.

Mr. LINDSAY. I don’t agree with the characterization of my testimony, sir.

Mr. BARR. I’m sure you don’t.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. I was not going to jump in here but this is bizarre

as can be. You’re basically telling us you had a presentation to be

made before the Appropriations Committee. Did you present all the

items in the document?

Mr. LINDSAY. All what items in the document?

Mr. SHAYS. All the items that were in this document.

Mr. LINDSAY. What document is that, sir?

Mr. SHAYS. 134, exhibit 134. I think it’s 5 pages, isn’t it? Take

your time.

Mr. LINDSAY. OK. What was your question, sir?

Mr. SHAYS. Are you familiar with this document?

Mr. LINDSAY. I have seen it before.

Mr. SHAYS. This is the—this was your preparation document before the Appropriations Committee?

Mr. LINDSAY. This document I have seen after the hearing fairly

recently. The information that actually ended up in my briefing

book I did not do a comparison to see if this is exactly the same.

Mr. SHAYS. So you’re going to tell me and the committee that

this is a document that was prepared for your briefing and you

don’t really remember seeing it or not but you can speak with such

certainty about the fact that one thing was taken off because you

knew about that really well. Did you know about the MAIL2 reconstruction better than you knew about all the other items in this

document? I want you to take the time to look at the document.

So all the other items you knew less about than the MAIL2 document?

Mr. LINDSAY. Some of them, yes, because they’re specific numbers associated with matters. But let me make this very, very

clear. The document that was actually included in my briefing book

was not this document.

Mr. SHAYS. I understand. I understand. No, I’m just trying to understand something.

Mr. LINDSAY. And I don’t know what other deletions may have

been made from this document, from the document that actually

ended up in my briefing book.

Mr. SHAYS. See, what’s difficult for me just being this common

nonlawyer, what’s difficult for me is in the course of your day here

you knew very little about this problem with the MAIL2 and you

didn’t have documents but you said you knew so much about it you

didn’t need information about it in your briefing. You did. You

didn’t need information about it in your briefing, which would

imply that you knew more about that than any of the other items

here and I think that’s simply not true. I think you know more

767

about some of these items than the MAIL2. So it makes me begin

to get more interested in what I consider are very evasive answers

which you would think are not evasive. Tell me an item here that

you knew better than the MAIL2 problem.

Mr. LINDSAY. There were several issues associated with why we

need to get Y2K issues and why we need to get funds for it that

I was more familiar with which I didn’t include in the briefing book

because those are things that I was very familiar with. The

issue——

Mr. SHAYS. Don’t talk so quickly here. You were more familiar

with what?

Mr. LINDSAY. For example, the impact on people of not getting

the resources in a timely fashion. That is something that was very,

very important to me. The fact that the—we were facing delays——

Mr. SHAYS. I’m not dealing with important now. I am dealing

with a simple question of what you knew more about or what you

knew less about. Your only justification for why this was crossed

off, your only justification was that you knew so much about it you

didn’t need to have it in your briefing book. I think that’s absurd.

And I prepare briefing books for myself and what happens in a

briefing book, you put all the items you intend to speak about. And

it tells you where you’re going to fit in and what you’re going to

talk about, what you’re not going to talk about. So you’re telling

me you knew so much about the problem of the MAIL2 problem

that you didn’t need it in your briefing book. But we have struggled

to get you to tell us even basic things about what you knew about

MAIL2. I am asking this question. Are you telling me that you

didn’t know about method ITT, that you didn’t know about IS&T

leadership, and therefore you needed that in there. You didn’t

know about mission critical system highlights. You didn’t know

about all these other things and those need to be in there but

MAIL2 problem, no, you knew about that so that didn’t need to be

in there. Is that what you’re saying?

Mr. LINDSAY. No, I’m not saying that.

Mr. SHAYS. OK. So why don’t you give me another story then.

Mr. LINDSAY. The briefing book, obviously I used the briefing

book differently than you use your briefing book. I was using it to

address not only those issues that were important but those issues

where I needed to have cues, either verbal cues or information

cues, for me to provide testimony and to respond to the questions

which were most likely to come up at the hearing. Y2K issues were

issues that I was informed by the members of the committee were

certainly going to be issues that were going to come up at the hearing. Therefore, I would go into greater detail in my briefing book

for what information was included.

Mr. SHAYS. So the real answer then is since we didn’t know

about the MAIL2 problem you weren’t going to be asked about it,

no point in having it in your book?

Mr. LINDSAY. No, sir.

Mr. SHAYS. Did we know about the problem?

Mr. LINDSAY. I don’t know, sir.

Mr. SHAYS. Why would we know about the problem? You guys

didn’t tell anybody.

768

Mr. LINDSAY. There were lots of—I had discussions with Northrop Grumman, I got a letter from someone in Kentucky who

works for Northrop Grumman about the matter. There are lots of

people—— Mr. SHAYS. Let’s be clear. Who did you talk about? Who?

Mr. LINDSAY. It’s not that I talked about it, it’s just the record

is replete with examples of people within the Office of Administration and people on the outside of Office of Administration.

Mr. SHAYS. Anybody in Congress?

Mr. LINDSAY. Not to my knowledge.

Mr. SHAYS. So don’t tell us that we would know in Congress.

That’s a little disingenuous.

Mr. LINDSAY. I cannot testify as to what Members of Congress

knew.

Mr. SHAYS. No. The people at Northrop worked for you, they

didn’t work for us. They were your employees. It was your system,

you knew about the system, we didn’t. At least give us that. With

all the other things you can be, don’t be disingenuous you thinking

that we already knew. Please don’t do that.

Mr. LINDSAY. Northrop Grumman was not my employee.

Mr. SHAYS. Whose employee were they?

Mr. LINDSAY. They were contractors. Independent contractors.

Mr. SHAYS. Contractors to the White House or to the Congress.

Who were they contractors to?

Mr. LINDSAY. To the White House.

Mr. SHAYS. OK. They are your contractors. They’re not your paid

employees. They are working for you, not Congress. I’m just asking

at least give us this, don’t suggest now that you thought we knew

about this problem. That’s really being disingenuous.

Mr. BURTON. The gentleman’s time has expired. Unless members

have further questions of this panel, we will bid them ado. I would

like to leave them with, and I hope they take a look at these

memos from Mr. Barry and others, talking about how critical it

was to get to the bottom of this as quickly as possible and nothing

happened. But if there is no more questions of this panel we will

thank you for your patience and your testimony. And to answering

the questions that you did answer. And we’ll let you go and we’ll

come back in about 10 minutes and get to the next panel.

Mr. RUFF. Mr. Chairman, I just have one question. I want to be

sure that I don’t take this home accidentally. A member of the staff

appears to have left a campaign button in our briefing book here

and I just—whoever it belongs to can pick it up. I’ll leave it right

here for them.

Mr. BURTON. That’s right. Thank you very much. It’s not mine,

I don’t think. We stand in recess.

[Recess.]

Mr. BURTON. I’ve been informed that the button to which Mr.

Ruff alluded was not left by any Member of Congress but by somebody in the audience and that it had some lewd material in it and

the person who put the button on the desk has been asked to leave

the room. So that problem is solved. The committee will reconvene.

Thank you, Ms. Nolan, for being here. Mr. Nionakis, thank you.

Would you please stand and be sworn?

[Witnesses sworn.]

769

STATEMENTS OF BETH NOLAN, CHIEF COUNSEL TO THE

PRESIDENT; AND DIMITRI NIONAKIS, ASSOCIATE COUNSEL

TO THE PRESIDENT

Mr. BURTON. Be seated. Mr. Nionakis, we wanted to have you

here today. We’re not disappointed that the chief counsel of the

President, Ms. Nolan, is with us, but you’re the person that we

really wanted to talk to. So do you have an opening statement you

would like to make?

Mr. NIONAKIS. I do not, sir.

Mr. BURTON. OK. Just 1 second.

I think we’ll start off, without objection from Mr. Shays, with the

counsel doing the questioning in accordance with the rules passed

by the committee today. So counsel.

Mr. WILSON. Mr. Nionakis, good afternoon.

Mr. NIONAKIS. Good afternoon, Mr. Wilson.

Mr. WILSON. Ms. Nolan.

Ms. NOLAN. Mr. Wilson, good afternoon.

Mr. WILSON. Thank you very much for the—I’m glad that we

could resolve ultimately the differences we had and thank you very

much for the calls we had last night. There are a few things that

I wanted to cover and I’ll try and give you a sense of where I’m

going before I get there just so as to try and be as direct as possible.

One of the things we talked to the previous panel about was a

test that was conducted to ultimately determine whether there was

a problem that had ramifications for document production. Now,

one of the things that we have been told is that after the problem

was discovered in June 1998, the e-mail problem was discovered in

June 1998, there were contacts with the White House counsel’s office, and ultimately some type of test was conducted to determine

something. And we’re not quite sure what because it’s been difficult

for us. And I’m not sure, Mr. Nionakis or Ms. Nolan, whether you

have any knowledge about this but this is one of the things that

we’re trying to determine. What we want to find out is whether the

White House did a thorough job and made a fair assessment of

whether there were any documents that should or should not have

been produced. So let’s just start with the threshold question.

When did you first become aware of the—and I’ll use the shorthand. It’s the MAIL2 user problem but I’ll just call it the e-mail

problem. That’s what we’re going to be talking about for the next

45 minutes or hour or so—but when did you first become aware of

the e-mail problem?

Mr. NIONAKIS. It was about February 2000 of this year.

Mr. WILSON. You had no knowledge at all of the problem prior

to news accounts, is that fair to say?

Mr. NIONAKIS. I believe it was either news accounts or from people with whom I work, working on those matters that are reported

in those news accounts on or about February 2000, yes.

Mr. WILSON. OK. That may well eliminate some questions. Mr.

Ruff had indicated that you may or may not have been involved in

some of the initial searches or some of the initial considerations of

the e-mail problem. I’ll eliminate a lot of questions by asking you

the very simple, very simple one. Do you know what the search

770

terms were that were used in 1998 after the e-mail problem was

discovered when the White House was conducting a test?

Mr. NIONAKIS. Mr. Wilson, I was not involved in that search and

I am unaware of what those search terms were.

Mr. WILSON. I will move completely away from that. We received

some documents from the White House a couple of days ago that

were initially designated subject to a privilege. I wanted to ask you

about one of those documents. If you would, there’s a book in front

of you, an exhibit book. If you could turn please to exhibit 144.

Hopefully it’s been added to your book because it was just put in

last night.

Mr. NIONAKIS. I have it in front of me.

Mr. WILSON. If you could just take a moment and look at that,

please. These are handwritten notes. The document is marked E

4459, and at the very top of the page it has a name Jason Baron

and a telephone number, which we have come to learn is in Vancouver, Canada. And the name’s of interest to us because we understand that Mr. Baron used to work at the Department of Justice.

Let me start with a threshold question. Have you seen this document before today?

Mr. NIONAKIS. The first time I saw it was when I received it for

production.

Mr. WILSON. Do you know who created this handwritten document?

Mr. NIONAKIS. Yes.

Mr. WILSON. Who did create the document?

Mr. NIONAKIS. I believe that handwriting is Jack Young’s handwriting.

Mr. WILSON. And Mr. Young I believe is the general counsel of

the Office of Administration, is that correct?

Mr. NIONAKIS. One moment, please. I believe that’s correct. He’s

the general counsel of the Office of Administration.

Mr. WILSON. In the privilege log we received——

Mr. NIONAKIS. Excuse me, Mr. Wilson, I want to amplify that. I

believe he’s on medical leave right now. That’s why I was hesitating as to his status.

Mr. WILSON. I appreciate that. I’m not quite sure of his status

myself but we don’t need to discuss that. With this document a

privilege log was produced and the document is described as follows: And I quote from the privilege log produced by counsel’s office, handwritten notations of OA general counsel of conversations

with Department of Justice attorney regarding issues raised by inquiries related to the White House e-mail system. Do you know

who prepared that description.

Mr. NIONAKIS. Yes. I did.

Mr. WILSON. Did you? Is Mr. Baron in fact a Department of Justice attorney.

Mr. NIONAKIS. As I said at the time that I prepared the document, my understanding was that he was a Department of Justice

attorney. I just want to point out that the document, the draft log

of documents subject to privilege is indeed a draft. It was prepared

because we were trying very hard to produce that draft to you with

the other documents that we produced last Friday. And I received

771

these documents the day before I sent that privilege, that draft

privilege log up to you. So that is why for a number of reasons why

I call it a draft, because it certainly would be subject to any corrections if I obtained more accurate information after that.

Mr. WILSON. I don’t have many questions but let me explain

where I’m going before I go there and it may be of some assistance

to cut the time back. It’s our understanding that Mr. Baron was

a Department of Justice attorney and was contacted at the time

that the MAIL2 problem was first discovered in 1998, individuals

from the White House or Office of Administration contacted Mr.

Baron. And I’ll be perfectly honest, we don’t know what his position

is at the Department of Justice or even whether he’s still there but

it’s of some concern to us because we have been trying, the committee has been trying to speak with Department of Justice attorneys.

And the Department of Justice has advanced their argument that

we should not be able to talk to line attorneys and we understand

that argument and we are talking to them about that. We’re trying

to determine whether anybody from the White House in fact contacted Mr. Baron. Do you know whether anybody called Mr. Baron?

Mr. NIONAKIS. I believe Mr. Young did given that—from what I

gather from this document I believe he did, but I don’t know that

anybody else did.

Mr. WILSON. Do these notes represent as far as you can understand, I know you did not create them, do these notes represent

notes taken by Mr. Young when he was talking to Mr. Baron?

Mr. NIONAKIS. I would not know. I think you would have to ask

Mr. Young that question.

Mr. WILSON. Do you know if anybody else has had any contacts

about Mr. Baron?

Mr. NIONAKIS. Not to my knowledge, no.

Mr. WILSON. I mean obviously I’m aware that you’re an employee

of the executive branch and the Department of Justice is also very

much a part of the executive branch, but we have a concern and

I would like you to help me work through this concern that whereas the committee has requested a special counsel to be appointed

in this matter because of a perception that the Department of Justice is on both sides of an issue, the same issue, this e-mail issue,

civil division attorneys have been assisting the White House and

now there is apparently a campaign financing task force investigation of possible obstruction of justice, we’re trying to determine

whether the White House has actually been talking to Department

of Justice attorneys and getting advice or assistance contemporaneously. Do you know when these notes were created?

Mr. NIONAKIS. I do not.

Mr. WILSON. Well, we appreciate that we can ask Mr. Young

some of these questions. If you would, in your book——

Mr. BURTON. Does Mr. Young work with you?

Mr. NIONAKIS. Mr. Young works in the Office of Administration.

He’s the general counsel for that office. I work in the White House

counsel’s office.

Mr. BURTON. So you don’t have direct contact with him on a regular basis?

Mr. NIONAKIS. I have contact with him but since he has gone on

medical leave I have not had direct contact with him.

772

Mr. BURTON. I see. Did you talk to him about this note?

Mr. NIONAKIS. I did not talk to him about this document, no.

Mr. BURTON. So you didn’t have any knowledge of whether or not

he talked to Mr. Baron directly?

Mr. NIONAKIS. It’s my understanding—excuse me. Are you asking about Mr. Baron or Mr. Young?

Mr. BURTON. Yes. Did you have any knowledge whether he

talked to Mr. Baron, Mr. Young?

Mr. NIONAKIS. I believe at one point Mr. Young told me that he

did speak to Mr. Baron.

Mr. BURTON. Do you know the contents of that conversation, did

he tell you anything about it?

Mr. NIONAKIS. I believe that the subject matter was that—and

this is to the best of my recollection—that Mr. Baron had provided

some assistance regarding I think it was an Armstrong issue. And

he called him up about that. But again, my recollection is very

foggy on that and I do not know exactly what that conversation

was about.

Mr. BURTON. But you don’t know of any other content of that

conversation other than you think he may have talked to him

about the Armstrong?

Mr. NIONAKIS. I do not recall any other content of that conversation.

Mr. WILSON. If you could, in the book in front of you, please take

a look at exhibit 60.

Mr. NIONAKIS. 60?

Mr. WILSON. Yes. And that’s a letter from yourself to a member

of our staff Andre Hollis, who’s a senior counsel on this committee.

It’s a letter about searches conducted by the White House for documents related to the Waco tragedy. If you take just a moment and

at least refresh your recollection. Now, I just wanted to—— Mr. NIONAKIS. I’m sorry, one moment.

Mr. WILSON. Sure.

Mr. NIONAKIS. OK.

Mr. WILSON. I really just want to direct your attention to one

representation made in the letter. Toward the end the paragraph

that begins before the numbered points, you note that the—actually that’s not what I’m looking at, the final sentence I believe is

the EOP believes that this search sufficiently covered the scope of

the committee’s subpoena. Now, given that you’ve just indicated

that you only learned about the e-mail problem this year, can you

tell us whether you believe that this—is this statement still accurate or is this statement not accurate?

Mr. NIONAKIS. First of all, I would like to say that I had several

conversations with Mr. Hollis about the subpoena. I think we

reached a reasonable accommodation on this in which we did

produce, as the letter states, certain documents. I cannot say one

way or the other whether given my awareness of the MAIL2 and

letter D errors now that we have indeed provided everything. And

of course, we would go back and search those materials as soon as

they are available.

Mr. WILSON. That’s what I’m getting at. If you have the opportunity now you would do that search and that would be—that

would enable you to make a representation that you had looked in

773

all of the places that might be relevant to this document production?

Mr. NIONAKIS. We would certainly look there, yes.

Mr. WILSON. Yeah. That’s not to say there’s anything there, but

it’s a place to look. And this letter does stand for something that

we discussed in the previous panel. It’s very important to note that

here this is a situation where you did come to an accommodation

with us, and we mutually agreed that there were certain things

that did not need to be produced and it was embodied in the letter

and we appreciate those conversations.

Mr. NIONAKIS. As do I, Mr. Wilson. I think you and I have had

many discussions, we have had many differences but I think we’ve

reached many, many agreements on previous occasions about documents and productions and so forth.

Mr. WILSON. Once the White House learned about the MAIL2

problem, have there been any discussions that you’ve been privy to

where individuals have suggested that bodies that have sought documents such as ourselves should be officially notified that searches

that have been conducted in the past may not be complete?

Mr. NIONAKIS. I believe our office has attempted to notify those

bodies and certainly respond to any inquiries from those bodies.

Mr. WILSON. I mean, I’m looking more for something formal. We

obviously know there have been lots of newspaper articles and discussion in various venues but one of the things that I don’t think

we have to this day is any type of certification that there may be

places that you should look for documents. And I’m being—you

know, I’m dancing around this—that would be the e-mails that are

under consideration. There does not appear to be a sort of an official statement that there may be places that you do need to look.

Perhaps this is something that could be provided to us.

Ms. NOLAN. Mr. Wilson, if I may interrupt for a second since I

think you’re asking for something from our office. What is it that

you would like us to provide to you?

Mr. WILSON. Well, just as in the past we received certifications

that to the best of your knowledge documents have been produced,

though we have to live in the framework of statements made by

White House counsel and others about what’s going on here, it

would be helpful to us to have some type of official recognition that

there are materials or there are at least documents that need to

be searched for responsiveness. That’s obviously not a representation that there’s anything there but at least a representation that

there are documents that need to be searched for responsiveness

and I guess that’s a request that we’re making of you now. And we

can discuss that later.

Ms. NOLAN. Certainly, Mr. Wilson. I just want you to know that

one of the things we’ve been doing is going back to collect all previous investigative requests and identify for ourselves what requests might have covered the MAIL2 or letter D problems and

identify those so that we can then know, have the entire universe

of searches that need to be done and we would certainly notify this

committee and other investigative bodies once we’ve completed that

list.

774

Mr. WILSON. This may not be the time or place to have this exchange but is there a current plan to prioritize searches that the

White House counsel’s office has developed?

Ms. NOLAN. Our plan is to work in coordination with the relevant

investigative bodies to come up with a list of priorities.

Mr. WILSON. OK. I only ask that because that process has not

yet begun.

Ms. NOLAN. My understanding is that some people have made

some initial identification of what they think would want to be

done. But we’ve been quite clear that we cannot set priorities until

it’s done through the counsel’s office with the investigative bodies.

Mr. WILSON. That sounds somewhat like an elective process. It

sounds like your putting the ball in our court to now provide——

Ms. NOLAN. No. No. No. We will notify when we’re ready to make

those priorities so that you can participate in those discussions. I’m

not expecting you to think you need to come forward.

Mr. BURTON. Mr. Nionakis, you said, I think, that you didn’t

know about the e-mail problem or were not made aware of it until

when, February of this year?

Mr. NIONAKIS. 2000, yes sir.

Mr. BURTON. How long have you been the White House counsel’s

office?

Mr. NIONAKIS. Since early March 1997.

Mr. BURTON. 1997. And you worked closely with Ms. Mills and

Mr. Ruff?

Mr. NIONAKIS. They were my superiors, yes.

Mr. BURTON. You never heard anything about the e-mails or

knew anything before the problem until February of this year?

Mr. NIONAKIS. That’s correct, sir.

Mr. WILSON. Ms. Nolan, I would just like to followup on something that we discussed at the last hearing and this is one reason

it’s very helpful for you to have returned. You indicated to us that

you would investigate the e-mail matter and I’m wondering whether you’ve made any inquiries as to what the search terms were that

were used back in 1998 when the problem was first discovered.

Ms. NOLAN. Mr. Wilson, I do not know what the search terms

were. I’ve not been able to identify them. We were able to locate

the materials and provide them to the independent counsel, who

now has them and is finishing that investigation, conducting that

investigation.

Mr. WILSON. Is it fair to say that you have gone to all of the relevant places and asked all of the relevant people and they’ve simply been unable to identify what the search terms from 1998 were?

Ms. NOLAN. I have not been able to identify who asked for the

search to be done or what the search terms were and I’ve—I or my

staff have asked I think everyone we could think of.

Mr. WILSON. Now, if we can just turn for a moment to the privilege log that was produced and I know that Mr. Nionakis made a

representation that it was a draft log, but one of the difficulties we

confronted and it’s been an ongoing concern of ours over the past

2 years——

Ms. NOLAN. I’m sorry, Mr. Wilson, do we have the privilege log

here?

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Mr. WILSON. I can provide you a copy. I’m not sure if it’s an exhibit. I didn’t want it in the book. If you could wait just one moment we’ll have a copy brought down to you.

I looked down. Did you get the copy of the privilege log. They disappeared. Ms. Nolan, while we’re waiting one of the questions I

was going to ask at the end was whether or not the Department

of Justice has interviewed either yourself or members of your staff.

Have interviews been conducted of your staff?

Ms. NOLAN. I have met with the Department of Justice regarding

this matter. They’ve not interviewed me. And they have requested

interviews of certain members of the staff. And I believe my staff

is coordinating with them to make those available. I don’t know

which ones have been accomplished yet.

Mr. WILSON. So those will take place at some point in the not

too distant future?

Ms. NOLAN. You would have to ask the Department of Justice

when they’ll take place but the ones that have been requested are

being set up, yes.

Mr. WILSON. If we could hopefully now—do you have a copy of

the privilege log? If you take just a moment and look at that.

Ms. NOLAN. Sure.

Mr. WILSON. I’m not going to ask any detailed questions. I just

want to ask about the subject of executive privilege claim. In my

experience claims of executive privilege are quite extraordinary. I

know that President Ford made one such claim, President Carter

made one executive privilege claim. President Reagan made 3

claims, President Bush made 1 claim, President Clinton has made

14 claims. Now, this stands for the proposition that it’s quite rare

to claim executive privilege.

And I guess what I’m looking at here, having looked at these documents that have been submitted to us and I know that privilege

was not claimed for them, but they were withheld from us subject

to privilege initially. Many of these documents don’t appear to come

even close, remotely close to qualifying for executive privilege status. For example, there was what appears to be a handwritten note

by the counsel, not even White House counsel but the Office of Administration counsel, about a document that was discussed at our

previous hearing and the extent of the document is not great as it

has the document number and a few other words on it. And it’s—

I’ll characterize this but it’s obviously vexing to us to see documents like that put under a subject of executive privilege claim.

From our perspective it would be easier just to get those documents

with a little bit less difficulty. My question, and I’m rambling here,

but my question is did the White House have any consultation with

the Department of Justice before it submitted the privilege log to

us?

Ms. NOLAN. We did not have consultation with the Department

of Justice before we submitted the privilege log. I should tell you

that the normal process here which I’m aware of from my time in

government service starting in 1981 at the Justice Department is

that agency general counsels normally make initial determinations

about what they think may be subject to privilege. They then engage in discussions and what is the constitutional accomodation

process with the relevant congressional committee.

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And when at the point at which accommodation may not be succeeding the Department of Justice is often then brought there to

determine whether there should be in fact a formal assertion of executive privilege. So this was at the very start of the process, not

a place where we normally would engage the Department of Justice

unless we had some peculiar issues.

And I would disagree with your characterization here. What

these were were attorney work product either in preparation for

this investigation or after the matter was discovered and the lawyers knew that there would be such an investigation. These weren’t

documents about the discovery of the MAIL2 problem at the time.

They were in fact the documents of the lawyers preparing for an

investigation, classic attorney/client or attorney work product as

subsumed in executive privilege for the executive branch, the kind

of thing that is routinely put on a privilege log and then discussed

with the committee in which the executive’s interest in keeping

those documents confidential is balanced against the committee’s

legitimate needs to receive the information.

Mr. WILSON. I understand your concerns. I do understand the

valid concerns of attorney work product or attorney/client privilege

aspects but executive privilege claims should be made sparingly

and we would take them with a great deal of seriousness and from

our perspective it appears that there’s a cheapening of the executive privilege claim when there’s almost a blanket referral to all

documents as potentially subject to executive privilege.

Now I understand from your answer you can extrapolate all documents that go to executive privilege ultimately but it appears that

some of these didn’t come close to a serious claim of executive privilege.

Ms. NOLAN. I completely disagree, Mr. Wilson. First of all, these

were 7 documents out of over 4,000 that I believe we’ve provided

to you. So the place where I had concern was where the executive

might be in the position of revealing not information about the

committee’s quite appropriate area of inquiry, but instead information about how the executive was preparing to respond to the investigation. That that would get into micro management, into the

internal deliberations of the executive branch, that that is exactly

the kind of thing that calls for a discussion between the committee

and the relevant executive agency, in this case the White House

and the Office of the Counsel to the President. That’s exactly what

this does. This log is an invitation to talk. And that’s what we

wanted to do.

Mr. WILSON. We appreciate that. I don’t dispute what you say

there. I just have one very brief subject left and that is documents

that have been produced to us, some of the witnesses we have

talked to have indicated that they have received sets of documents

in advance of interviews or appearances here before this committee. And I’m wondering whether you know of documents being produced to any potential witnesses, any type of potential witness in

this e-mail matter.

Ms. NOLAN. You know, I certainly saw documents before I came

up and testified. I don’t know if that’s what you mean but I certainly saw some of the documents that our office had produced or

had discovered as part of my investigation. I’m not——

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Mr. WILSON. Let me take that a little bit further. Do you know

of any documents being produced to anybody who was not an employee of the White House?

Ms. NOLAN. I don’t think so, but you might be able to refresh my

recollection. That’s—you know, I can’t think of a specific example

now.

Mr. WILSON. If you can’t you can’t. I understand that.

Ms. NOLAN. It may be that some former employees were provided

information.

Mr. WILSON. That’s what I’m driving at actually. I’m driving at

former employees and not necessarily the White House but the Office of Administration. Do you know whether any former employees

of either the White House or the Office of Administration were provided with any documents by the White House?

Ms. NOLAN. I don’t believe I know that that was the case, no. I

can’t think of any such examples. The only reason I’m hesitating,

Mr. Wilson, is it would not surprise me if a former employee was

provided with one of his or her own documents, something like

that. I don’t know if that happened but I think I would not take

particular note of it. So I might have learned of it.

Mr. WILSON. I understand. Nor would we, I believe. But it’s our

understanding that much wider categories of documents you know,

many of the documents we’ve been looking at are e-mails and it appears to us that documents that may be other people’s e-mails to

other individuals have been provided to potential witnesses in anticipation of their either interview or testimony before us.

And my simple question would be, would that be inappropriate

to provide information that was not germane to that particular person, say somebody else’s private e-mails. We got them because we

subpoenaed them but what I’m asking you and I’ll ask both of you

would it be appropriate to provide an e-mail that party A sent to

party B to person C, would that be inappropriate for the White

House or the Office of Administration to do that?

Ms. NOLAN. Mr. Wilson, I think you would have to see the specific example. It would depend on whether somebody had authorized it, it might depend on whether it was something the person

had probably previously seen but didn’t have a copy of. So I don’t

know that I can answer the question in the abstract.

Mr. BURTON. Counsel, our time has expired. The ranking minority member, Mr. Waxman, is recognized for 30 minutes.

Mr. WAXMAN. Thank you, Mr. Chairman. I want to start off with

two points: One, how accommodating this White House has been in

trying to get documents to this committee that have been requested, even documents for which I think there’s an argument

that there is no reason for you to have to turn them over. I must

say I agree that executive privilege ought to be used sparingly but

there are times when documents ought not to be turned over to

Congress appropriately, whether it’s deliberations with the President and his staff or people within the executive branch. I don’t

think that ought to be made public. I don’t think that ought to be

turned over to the Congress. I don’t want that to be used as an excuse to refuse to turn over documents and it seems to me you have

not made that excuse. You’ve been very forthcoming in getting information to us.

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And the second point I want to make is we just had a half hour

of questions from our committee counsel of you that could have

been asked without having you come down here for a hearing.

There was nothing that was asked that I don’t believe couldn’t

have been discussed and resolved in a conversation on the phone.

Yet you had to drop everything that you’re doing to be here to answer these questions. And I just would hope that in the future the

majority would try to work things out through discussions and mutual accommodations than to have your schedule disrupted, all of

the members—well, there aren’t that many but those members that

are here and the press, and there aren’t many of them either, have

to take all the time to be here to go through this whole issue.

I want to contrast what is happening here with what I experienced when I chaired a subcommittee and we had the Bush administration in power. I was very involved in environmental issues.

And in the environmental area the law was often written to require

the Environmental Protection Agency as the agency in charge to

write the appropriate regulations. They had to do it pursuant to

the Administrative Act, the Administrative Procedure Act. They

had to follow certain protocols, they had to have documents on the

record. And then their opinions could be challenged if they didn’t

have sufficient base in the record for the conclusion they reached.

That was the way the law was written, that’s the way the law was

supposed to work.

Well, there was a group called the Competitiveness Council. And

that was an organization that was not in the law at all, it was

something that Vice President Quayle had organized. And this

Competitiveness Council met with the industries that were affected

by regulations. And these industries would lobby Vice President

Quayle and his staff to intervene in these deliberations by the Environmental Protection Agency to give the industries a break. They

shouldn’t have to reduce pollution so much. They shouldn’t have to

spend money to meet the requirements of the Clean Air Act or

other environmental laws. I thought this was an extralegal, if not

illegal action on the part of the administration at that time.

We requested documents from the executive branch and we kept

on getting stonewalled by them. So I was surprised to hear the

counsel talk about the number of times that executive privilege

was used by the Bush administration. Maybe they didn’t use executive privilege but they stonewalled us every step of the way. They

wouldn’t even tell us what businesses and industries wrote to them

requesting that they intervene with the regulatory agencies. This

is obviously no privilege in any way that I could understand it in

terms of internal deliberations within the White House. But they

wouldn’t even give us that information.

And yet you’re now being asked and have complied with information that regards the internal deliberations of the White House

counsel’s office.

So I think it is quite remarkable to compare any criticism of your

office where you sometimes draw a line and say there are some

things that need not and should not be turned over to Congress,

compared to the Bush administration where they drew that line

very, very broadly and I think misused their powers.

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Now, you were here, I guess, 3 or 4 weeks ago on this whole

issue of the data base so—how many hours were you here; do you

recall?

Ms. NOLAN. I think it was about 6.

Mr. WAXMAN. Six hours.

Ms. NOLAN. Well, I had lunch.

Mr. WAXMAN. Your day had to be devoted basically to being here

answering questions. In addition to that, you had to review all of

the information in preparation for it, and I am sure after you left,

you had a huge headache which required at least a couple of hours

to get over before you went back to work. There will probably be

some time for all of the things that you didn’t do that day as part

of your job as the White House counsel, because basically that is

what this hearing is all about.

These series of hearings are to criticize people in the White

House counsel’s office for not having paid enough attention to one

issue that wasn’t really that visible at that time when they were

dealing with so many other issues before them.

I want to start by asking you again this Mail2 reconstruction

process, it is an issue over which there is some confusion. The

chairman has accused the White House of trying to delay the reconstruction of the Mail2 e-mails until after the election in November. He stated that the White House was trying to, quote, run out

the clock.

Ms. Nolan, do you think that accusation is accurate?

Ms. NOLAN. I do not.

Mr. WAXMAN. Why not?

Ms. NOLAN. We have spent—since coming to understand the

Mail2 and letter D problem, we have spent a huge number of hours

to try to resolve the problem. We are working very hard at getting

the problem resolved. I have attended meetings with the Office of

Administration and contractors. It is very unusual for the White

House counsel to be talking to contractors to the Office of Administration, but I have gone to those meetings to make sure that everybody understands what a high priority this is, how important it is

that we think creatively about ways to get it resolved.

If we could get these e-mails searched tomorrow, I would be

thrilled about it.

Mr. WAXMAN. When do you anticipate that we will be getting

these e-mails before our committee?

Ms. NOLAN. What I have been told is that we can start to expect

to do searches next month, and we will do that on a rolling basis.

Mr. WAXMAN. Mr. Lindsay testified today that decisions about

what materials will be produced first will be made by the White

House counsel’s office in consultation with our committee and other

investigative bodies; is that an accurate statement?

Ms. NOLAN. That is absolutely accurate.

Mr. WAXMAN. So you are going to produce these e-mails and

going back over the whole data base and pulling out the e-mails,

and you will give them to our committee and the other investigators, and you are even going to take into consideration what we

consider or what the majority and minority consider the highest

priority for e-mail information?

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Ms. NOLAN. We will identify what tapes should be searched first,

and we will make that determination in concert with the relevant

investigative bodies.

Now, I understand that those bodies may have disputes about

what they want to have searched first. This is a situation where

I think we will accommodate whatever agreement can be reached

by the investigative bodies. I don’t have a particular interest in

which one it is so much as I have an interest in making sure that

we are able to get those things that people identify as the highest

priorities searched first.

Mr. WAXMAN. I wanted to know if there are any e-mails on

Monica Lewinsky because I don’t think that the Starr report went

into enough detail for me. I think there is more for us to know; and

once we know it, we will certainly have enough information on

Monica Lewinsky.

That was sarcasm.

Ms. Nolan, I understand that Mr. Burton sought the appearance

of one of your staff members, Mr. Nionakis, who is here, to explain

decisions made by your office regarding the production of certain

items requested by the committee. I also understand that you attempted to reach Mr. Burton and his staff to discuss this request.

Is that accurate?

Ms. NOLAN. Yes, that is correct, and I want to say, Mr. Waxman,

that Mr. Wilson and I were able to speak last night several times,

including once late in the evening. He was able to confer with the

chairman this morning, and in those conversations I said that if

there were going to be questions about our office’s decisions regarding privilege or production of documents, that I as the counsel

wanted to answer that rather than have one of my associate counsels answer those questions since those are decisions of the counsel’s office and decision of the counsel.

Mr. Wilson and the chairman accommodated that request. We

had some misunderstanding about whether we were going to be

able to speak; but once we did, they accommodated that request,

and that is why I am here.

Mr. WAXMAN. I am very pleased to hear that, and I want to commend the chairman for reaching that understanding. It is only reasonable if someone wants to question the decision I made, I don’t

want them subpoenaing my staff people that gave me differing

points of view. They ought to question me as to how I decided and

why I decided. Otherwise people work for you, and they give you

different opinions, they are going to feel intimidated about giving

you their best judgment if they think that you have to go through

all of the deliberative process of everyone that works for you having to come before the Congress and testify under oath as to what

they said and their perspective. Is that—— Ms. NOLAN. That is exactly right.

Mr. WAXMAN. I appreciate that the chairman was sensitive to it,

and I am sorry that it took until last night. Maybe if you had a

further opportunity, you would not have had to come here at all,

because what we really needed was for you to have a chance to talk

to each other and clarify these issues.

Ms. NOLAN. I think Mr. Wilson and I agreed, and I hope that he

conveyed this to the chairman, that I hope these are the kinds of

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conversations that we will be able to continue having whenever

necessary before we get involved in calling people up to testify. I

think we will be able to do that and work together.

Mr. WAXMAN. I am glad you made that point, and I think it is

very forthcoming on your part, and I am pleased to hear that they

responded in the conversation last night. May this be the beginning

of a wonderful relationship. And let’s do our jobs in a professional

manner, but to have you come back 3 weeks after you spent 6

hours here to answer questions which could have been answered in

a telephone conversation strikes me as an unfortunate waste of

your time and ours. Our time is all being paid for by the taxpayers,

and they ought to feel that their money is not being wasted.

In a May 3 letter to the chairman, you expressed concern about

this issue, and I would like to have that letter in the record. I think

there was a May 3—May 2 and May 3 letter to the chairman, and

perhaps his letters to you all ought to be part of this hearing

record.

Mr. Chairman, if you have no objection, I would like to ask unanimous consent.

Mr. BURTON. Without objection.

[The information referred to follows:]

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Mr. WAXMAN. Your May 3 letter noted that there historically has

been a view that accommodation is an important part of this process of inquiries between branches of government. Your understanding is consistent with that of the previous administration’s. As your

letter noted, in 1989, then Assistant Attorney General William

Barr stated, and I want to quote your quote of his quote—Mr. Barr,

the Attorney General, said, the process of accommodation requires

that each branch explain to the other why it believe its needs to

be legitimate. Without such an explanation, it may be difficult or

impossible to assess the needs of one branch and relate them to

those of the others. At the same time requiring such an explanation imposes no great burden on either branch. If either branch

has a reason for needing to obtain or withhold information, it

should be able to express it.

Ms. Nolan, do you believe that this committee has allowed the

White House’s counsel office with appropriate opportunity to express its reason for recent requests from this committee?

Ms. NOLAN. Mr. Waxman, I was trying to do that over the past

several days. I was frustrated that I did not feel that we were engaging in the accommodation process. I think we had a very helpful

conversation with Mr. Wilson last night, and I think we have come

to an agreement which I hope we will have a beautiful relationship

in which we will engage in the accommodation process when we

have concerns.

I understand, and I am sure this committee agrees with me, that

there are going to be great disagreements about some matters, and

they will be disagreements that sometimes may be quite vigorous,

but I think as long as we are forthcoming about them, identify, as

we did in this privilege log, what documents we are concerned

about and talk about, I hope that we can reach a resolution, as we

did here.

Both of the documents on the privilege log and the other set of

material, the e-mails that have been requested, I did provide.

When I hadn’t been able to reach the chairman or Mr. Wilson, I

decided to just go ahead and send them on Tuesday. So they have

been provided to the committee, so we are now simply talking

about a log that really no longer—it is a draft that never became

a final because we ended up providing the documents.

Mr. WAXMAN. There are legitimate differences between the

branches, and those things need to be worked out and discussed.

There are differences between the political parties, but we ought to

try to find out if there are places for accommodations. And if there

are disagreements, it doesn’t mean that one side is disloyal to this

country and the other side is true blue American. We have differences of opinion by people who both love this country and support its Constitution and its institutions.

And I haven’t heard very often praise from the other side of the

aisle, praise of what any Democrat has said, but I want to praise

what a Republican has said, and that is Mr. Barr. And I disagreed

with him a lot when he was a Republican Attorney General during

the Bush administration. I disagreed with him on a lot of issues,

but I think his position, as you quoted him, expresses the basis for

the two branches trying to understand each other. If one branch

wants some information, we ought to be able to, if it is us, to exVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00792 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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plain why we feel we need it. And if the executive branch feels that

there is some reason that you shouldn’t give it, you ought to be

able to explain that, and we will work through the process if it

comes to a confrontation. But I don’t see the need for constant partisan confrontation. I think we could be spending our time in so

much more of a productive way.

I was so impressed by Cheryl Mills’ statement to this committee

this morning. I would recommend the text of it to you if you have

an opportunity in your spare time to read it, because what she said

to us in a very heartfelt way is that there are problems. And this

committee which has jurisdiction for oversight and investigations

on any problem facing this Nation could be looking into some of

these real problems, and we have spent so much of our time in partisan—partisan kind of fights, investigations that are one-sided.

This committee had a campaign finance investigation. Did we

look into abuses of campaign finance laws by Democrats and Republicans? No, it was an investigation of presumed abuses by

Democrats, some of which were real, and it was only about Democrats. Does anyone believe that campaign laws are only abused by

Democrats? And yet this committee refused to even look at those

allegations of concern where Republicans may have stepped out of

bounds.

I think we are all moving to better a situation because yesterday

the chairman agreed with us and made accommodations that we

are going to get the Justice Department 302s in some of those Republican campaign finance issues where they did some interviews

with people who may well have something to—something to say

that may be relevant on the accusations about Republican campaign finance abuses.

But there are so many other problems we ought to be dealing

with. I am at the point where I would be welcoming this committee

to look at Elian Gonzalez, because we have had four hearings on

this issue, and we have about exhausted it. Maybe we will have

more. I would like us to look at the high prices of prescription

drugs that the elderly pay because Medicare doesn’t pay for it. I

would like us to look at environmental problems, some of which I

think cause the high rate of cancer in this country. I would like us

to look to see if there is an innovative way that we can improve

the education system in this country so we can educate our children to compete in a new global economy. I would like to look at

international problems to see if we can make this a safer planet

and reach out to other countries to give incentives for people to try

to find areas of agreement internationally.

I think there is a whole plethora of issues that we could be talking about, but what we have done in four hearings is we took a

data base system that the White House contracted to have created

to capture the e-mails in order to archive them for historical purposes, and after that contract was let out for these archiving of the

e-mails and retrieval of them to be archived, it turned out that the

contractor ended up making some technical mistake, and some emails were not being captured. When it was discovered, people

moved to correct that problem, and it was corrected prospectively.

Now the issue that we are faced with in four hearings so far was

whether there were lost e-mails retroactively. It appears that the

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White House counsel’s office thought that all of the e-mails that the

investigators who wanted e-mails were turned over to them because there are other ways to get the e-mails off the individual

computers as well as the centralized system, and that may not

have been the case. But to assume that it is a conspiracy and obstruction of justice, perjury and all of the others things thrown so

loosely around this committee, everyone else is guilty of a crime if

there is some mistake made, can’t help but lead to an exacerbation

of the problems between the branches and between the parties, and

it has kept us from looking at areas where we could be together

dealing with the real concerns of the American people.

You have been here for a number of hours, and I see that Mr.

Shays is ready to ask you more questions, as is appropriate under

the rules. We may have other questions as well. We will ask all of

the questions that anybody might want to ask you of you, and I

hope in the future the spirit in which you undertook conversations

with the majority on our committee last night will lead to ways to

get to the basic information we want without disturbing

everybody’s schedule and wasting our time and wasting taxpayers’ money so we can get to the information, get to it in the most efficient possible way and find out if there is wrongdoing.

If there is wrongdoing, I don’t care if it is Democratic or Republican wrongdoing, if there is a criminal violation, it should be prosecuted. If somebody makes an accusation and it turns out to be

wrong, they should apologize. We should let the truth speak for

itself and not simply go from one accusation to another.

Obviously I have taken a lot of my time because each side is

given a half hour. I don’t have anything else to ask you. I am going

to yield back the balance of my time. I hope that at some point we

can conclude this hearing that has gone on far longer than I think

is necessary.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. I know that is encouragement on your part, the gentleman from California not to ask questions, but I haven’t asked

questions of this panel yet.

Mr. WAXMAN. That is not the case.

Mr. SHAYS. It sounded that way. I guess I misinterpreted it.

Ms. Nolan, I am curious why you are here today. Why did you

feel that you needed and wanted to be here?

Ms. NOLAN. Mr. Shays, my understanding was that the committee wanted to ask questions about the office’s decision to put items

on a privilege log or its interpretations of the subpoena. Those are

decisions of the counsel’s office and of the counsel, and my understanding also is that the past practice has been when similar questions were put to associate counsel by this or other committees, Mr.

Ruff had sat and answered those questions rather than having the

associate counsels do that. I asked for the same treatment, and the

chairman granted it.

Mr. SHAYS. Just for the record, you are here because you wanted

to be here?

Ms. NOLAN. I am here voluntarily.

Mr. SHAYS. We did not ask you to be here?

Ms. NOLAN. That is absolutely correct. What you did, do, however, was ask someone who I did not think should be asked to apVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00794 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
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pear here to answer those questions. I tried to reach an accommodation with the committee about getting the right person to answer

the questions.

Mr. SHAYS. I don’t want Mr. Waxman or anyone else to suggest

that we asked you to come again. Frankly, you made it clear to us

that you started in September last year?

Ms. NOLAN. That’s correct.

Mr. SHAYS. So all of the questions about what happened in June

1998, you were basically telling us that you knew nothing about it.

Ms. NOLAN. No, I came to answer those questions about the

privilege that we discussed.

Mr. SHAYS. I understand. I am just explaining to you.

Mr. Nionakis, you have worked in the White House since when?

Mr. NIONAKIS. Since March 1997.

Mr. SHAYS. You were sworn in, correct?

Mr. NIONAKIS. That’s correct.

Mr. SHAYS. The reason you are sworn is because then you have

a legal obligation to tell the truth; is that correct?

Mr. NIONAKIS. That’s correct.

Mr. SHAYS. So if we picked up the phone and said, by the way,

did you happen to get any—for instance, did you see this document

that talked about the 246,000 e-mails that slipped by under the

Mail2 problem, you could have said, no, I don’t know anything

about it, it would be a meaningless statement under law if we did

it by phone; isn’t that correct? Or whatever you said by phone, it

would have no legal standing, would it?

Mr. NIONAKIS. I would try and answer honestly and accurately.

Mr. SHAYS. I respect that, but the point is this is an investigation

in which we need to swear you in. Unfortunately, you are here because we needed to swear you in. When you said that you didn’t

know anything about this problem until February of this year, you

did it under oath?

Mr. NIONAKIS. That’s correct.

Mr. SHAYS. That is why you are here. We had questions that had

you answered differently, and we had no way of knowing under

oath how you would have answered, we would have asked you

other questions. That is why you are here, and it doesn’t take a

rocket scientist to know that.

You also wrote a puzzling letter to the committee, and I think

you know what letter it is. It is the letter of April 28, exhibit 139.

Maybe there is an answer for it, but it sure puzzles me. I will give

you time to look at that letter. It is from you, I believe, and it is

addressed to our counsel, James Wilson.

[Exhibit 139 follows:]

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Mr. NIONAKIS. OK.

Mr. SHAYS. Would you read out loud paragraph 4 for us.

Mr. NIONAKIS. ‘‘The general language of the subpoena calls for

all documents relating to the ‘Mail2’ programming error. The

Lewinsky related e-mails, while gathered after the ‘Mail2’ error

was discovered, are unrelated to that error. They were gathered in

response to a subpoena request from the Office of Independent

Counsel Starr, and therefore pertain to a distinct matter by a different investigative body.’’ Mr. SHAYS. What did you mean when you said, ‘‘The Lewinsky

related e-mails, while gathered after the ‘Mail2’ error was discovered, are unrelated to that error?’’ What do you mean by that?

Mr. NIONAKIS. I will defer that question to Ms. Nolan.

Mr. SHAYS. I am happy to have you defer it, but this letter is

from you. We will let Ms. Nolan answer it, but could you explain

to me what you meant when you wrote the letter? I don’t want to

know what Ms. Nolan meant, I want to know what you meant.

Ms. NOLAN. Mr. Chairman, I believe this is exactly the kind of

question with respect to what our office’s position was with respect

to these documents that we agreed could be answered by me.

Mr. SHAYS. Could I say I am happy to have you answer it, but

could I have Mr. Nionakis answer it because he wrote the letter

and let you qualify it or change it. Is that a problem?

Ms. NOLAN. I believe what we agreed to, and I explained to Mr.

Wilson—— Mr. SHAYS. I will go with the agreement. Let’s go with the agreement.

Mr. NIONAKIS. Mr. Nionakis, did you write this letter?

Mr. BURTON. Excuse me. I think Mr. Wilson has indicated that

it is not his understanding—— Mr. SHAYS. I can live with it. Did you write this letter?

Mr. NIONAKIS. I drafted it.

Mr. SHAYS. So this is your letter?

Mr. NIONAKIS. No, I drafted it, and other people reviewed it.

Mr. SHAYS. And did you sign it, or did other people sign it?

Mr. NIONAKIS. I signed it on behalf of the office.

Mr. SHAYS. So you wrote it, you let other people look at it, and

then you signed it, and yet we will have other people answer. I am

happy to have you answer, Ms. Nolan.

Ms. NOLAN. Thank you, Mr. Shays.

The e-mails that were produced were simply the contents of emails that had been sent between Monica Lewinsky and someone

in the EOP. They reveal nothing about, show nothing about the

Mail2 problem; and moreover, when I was here last, the chairman

himself indicated that he intended to issue a subpoena for those

documents. He had never done so. He never informed me that he

believed that the preexisting subpoena called for them, and the

first we had heard of that was a voice mail left by Mr. Wilson last

week that said, and we consider these e-mails to be covered by the

subpoena.

The view that our office took was that they weren’t covered by

the subpoena; in fact, that the chairman wouldn’t have indicated

he intended to subpoena them if he thought that they were covered

then. So we wrote that we did not believe that they were covered

791

by the subpoena. Instead of getting a phone call, getting a question,

asking for discussion about it, Mr. Nionakis got a letter from the

chairman saying, I am going to subpoena you.

Mr. SHAYS. Mr. Nionakis, in the letter that you wrote and drafted and signed, you said that these Lewinsky e-mails were unrelated to the error. Would you explain to me why they are not directly related to the error?

Ms. NOLAN. Mr. Shays, we just explained what our office’s view

was about why they weren’t related.

Mr. SHAYS. You didn’t say whether they related to the committee.

Ms. NOLAN. Related to the error. They are e-mails that have

nothing to do with the error. They are not about the search. They

are simply e-mails the contents of which reveal nothing by themselves.

Mr. SHAYS. So these e-mails are in no way related to the search

that was done afterwards?

Ms. NOLAN. It was our view that they were not called for by the

subpoena.

Mr. SHAYS. You all want to get into legalistic terms. I just want

to know the truth.

Ms. NOLAN. There is not necessarily a difference, sir.

Mr. SHAYS. Maybe there won’t be, and maybe in the end I will

agree with you, but I don’t want you to confuse me in the process.

After the White House learned that there was a Mail2 problem,

Mr. Nionakis, when you all learned that—and he was here before

you, Ms. Nolan—when you all learned that, evidently you made a

test to see how big a problem it was. Were any of these e-mails related to that test?

Mr. NIONAKIS. I did not participate in that search.

Mr. SHAYS. You know now, though. Were they related?

Ms. NOLAN. Those were the e-mails, Mr. Shays, that were uncovered. They don’t reveal anything about the Mail2 problem.

Mr. SHAYS. Wait a second. Maybe you are right about this, but

we just had testimony that in order to see how serious this problem

was, we did a test, and the test was with Ms. Lewinsky, and that

satisfied us that there wasn’t a problem. Are these those e-mails?

It is a yes or no.

Ms. NOLAN. Those are the e-mails, I believe, that were produced

and checked.

Mr. SHAYS. That’s all. That’s all. We just wanted to see the emails related to the test. And they are very related to the subject

of this hearing about the e-mails. And the committee wants to

know what you tested and what you found. How can you say that

they are not related to the test and not related to the work of this

committee?

Ms. NOLAN. Mr. Shays, the independent counsel is reviewing

what was produced against that list. I don’t think having those emails enables the committee to make that determination. But in

any event—and I believe, as I said, that the chairman had indicated his determination that they weren’t covered by the previous

subpoena. But, in any event, I determined that the committee could

ask for them and that rather than have a dispute about it, I would

just provide them. So on Friday we notified the committee that we

792

did not consider them covered, and on Tuesday we provided them

to the committee.

Mr. SHAYS. I know Mr. Waxman thinks you cooperate, but to me

this is like a ridiculous game. The committee has learned of hundreds of thousands of e-mails that have been lost. That is what we

learned. And we wanted to know, one, how it happened, and we are

pretty satisfied it was an accident. We also learned that it took another 5 months to fix, so the problem got worse before it got better.

We also learned that nobody in the White House notified us, and

then we wanted to know who knew what when. And everybody has

their own little compartmentalized story. And then we get a letter

that basically says these are unrelated to the error in Mail2, and

they are totally related.

Mr. Nionakis, you may have drafted the letter, and maybe somebody has to answer for you, but it just blows my mind that you

would have said that.

Mr. BURTON. The gentleman’s time has expired.

Mr. Waxman.

Mr. WAXMAN. I am puzzled because Mr. Shays is asking Mr.

Nionakis about these letters and these e-mails, and you are arguing about whether they are related or not related. Why didn’t you

give them to the committee?

Ms. NOLAN. We provided them to the committee. We gave them

on Tuesday.

Mr. WAXMAN. So we now have the e-mails?

Ms. NOLAN. You now have the e-mails and the ZIP disk.

Mr. WAXMAN. So we can read those e-mails?

Ms. NOLAN. Yes.

Mr. WAXMAN. And we will probably make them part of the

record. Maybe they are already part of the record. That I will leave

up to the chairman.

Mr. BURTON. Would the gentleman yield?

Mr. WAXMAN. Certainly.

Mr. BURTON. We have no interest in the Lewinsky matter, only

the e-mail problem, so there is no reason to make them part of the

record.

Mr. WAXMAN. I would dispute you on that.

So the question is that you wrote this letter, Mr. Nionakis, and

said that the general language for the subpoena calls for all documents relating to the Mail2 programming error. The Lewinsky emails, while gathered after the Mail2 error was discovered, are unrelated to that error. You can argue that one forever, but the essential point is that we got the e-mails, and we can make our own decision.

Ms. NOLAN. I think that is right, Mr. Waxman, and I think there

are two different views about whether they were called for or not.

I made a determination to accede to the committee’s view that

they were called for without having a dispute about whether a new

subpoena was called for and provided them, and the committee has

them. I am not sure what else to say about them.

Mr. WAXMAN. I don’t know what else to say about them either.

If you hadn’t given them to us, then there is a lot to talk about,

whether you should have given them, whether you are withholding

information, whether it is part of a cover-up, whether you are conVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00800 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
793

fronting Congress irresponsibly, whether we have a different point

of view than you do on executive; but that has nothing to do with

anything. Whether you think that we are entitled to it or not, you

decided to give it to us?

Ms. NOLAN. That’s right.

Mr. WAXMAN. And we have got them?

Ms. NOLAN. You have got them.

Mr. WAXMAN. That is good enough for me. I yield back the balance of my time.

Mr. SHAYS. Mr. Chairman.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. Mr. Ruff’s staff thought they revealed that there

was—you basically said that they revealed nothing, they showed

nothing about the Mail2 program; and Mr. Ruff was telling us that

having done this, he revealed there was no problem, at least he

thought it was taken care of. So he thought that these Lewinsky

e-mails showed that there really wasn’t a problem, and you are

saying they reveal nothing about the problem.

Ms. NOLAN. Sir, I think they will reveal something to the Office

of the Independent Counsel who has jurisdiction over this matter

to compare what was produced to them with that group of e-mails.

I think the e-mails by themselves reveal nothing about the Mail2

problem, provide no information to the committee. These are just

Monica Lewinsky e-mails.

Mr. SHAYS. But it was the basis, was it not, for the White House

making a determination that they had tested the Mail2 problem

and found that there was no problem? Isn’t that true?

Ms. NOLAN. That is my understanding. But the e-mails themselves, which is what was called for, I don’t think reveal anything

about the Mail2 problem.

Mr. SHAYS. Thank you.

Mr. BURTON. Well, I think we have come to the end of the road.

Mr. NIONAKIS. Mr. Chairman, 1 minute, please.

Mr. BURTON. Go ahead.

Let me just say that Mr. Waxman has complained about the failure of the Bush administration to cooperate. I want to get that part

of the record straight. They claimed executive privilege once, and

the Clinton administration has claimed it 14 times in the last 5

years, so that at least is in the record.

I appreciate your statement of cooperation, Ms. Nolan, and I

would just like to say to Mr. Nionakis, I recall when you worked

with Mr. Ruff, you were in my office, and we were talking, I think,

back in 1997 when I assumed the Chair of this committee. I believe

we were talking about getting documents from the White House at

that time, and you were part of the staff that Mr. Ruff brought

with him to my office; is that correct?

Mr. NIONAKIS. That’s correct.

Mr. BURTON. You appeared to be one of the people that Mr. Ruff

had a great deal of confidence and were one of his confidants. I am

not saying that you have misled us, but that is why I find it difficult to believe that being a member of his staff and the subsequent counsel staffs, that you would not be aware of the e-mail

problem when it came about. And you are saying that you didn’t

know about it until February of this year, and that kind of mysVerDate 11-MAY-2000 11:14 Jun 14, 2001 Jkt 000000 PO 00000 Frm 00801 Fmt 6601 Sfmt 6601 C:\DOCS\69621.TXT HGOVREF1 PsN: HGOVREF1
794

tifies me because of your close association with Mr. Ruff and his— and Ms. Nolan and Ms. Mills.

Mr. NIONAKIS. I understand, Mr. Chairman, but to the best of my

knowledge, the first time I ever heard about this problem, the email problem, was February 2000.

Mr. BURTON. Let me just followup on that.

Mr. NIONAKIS. Yes, sir.

Mr. BURTON. Can you categorically say—and not to the best of

your knowledge, because do you know how many times I have

heard ‘‘to the best of my knowledge’’ and ‘‘I can’t recall’’ and ‘‘I am

not sure’’? I mean, the selective memory loss of people before this

committee—I’m not saying you—is just legion, so I would like you

to be more definitive.

Can you say categorically that you did not know about the e-mail

problem until February of this year?

Mr. NIONAKIS. One moment, please.

Mr. Chairman, I do not recall ever hearing about the e-mail

problem prior to February 2000. I cannot categorically say I never

did. If there is something—if you understand otherwise, I would be

happy for you to bring it to my attention.

Mr. BURTON. That’s all right. I just want to say in the finest tradition of the Clinton administration, we are getting the same answers that we have gotten from the beginning. Let me thank you.

Mr. NIONAKIS. Excuse me, may I amplify one other answer? You

asked about conversations with DOJ attorneys, and I am sure that

this committee is well aware that obviously our office speaks to

members of the Campaign Finance Task Force and their investigation, and they are a DOJ entity, as well as members of the Civil

Division who represent us on various litigation matters where this

issue has come up. So those conversations obviously occur, and

those people are DOJ lawyers.

Mr. BURTON. I am glad you mentioned that because as we close,

that makes another strong argument for a special counsel to review

this whole issue, because you have got the Criminal Division of

Justice on one side and the Civil Division on the other side, and

how two divisions of the same Justice Department can conduct an

investigation like that is beyond me. That’s why once again I believe we should have a special counsel to review that whole matter.

I appreciate you being here today.

Ms. Nolan, I appreciate the olive branch that you have extended

to Mr. Wilson and myself. We will try to work with you in a way

that is accommodating to you, but we do want to get the facts when

we need them, and hopefully that will occur.

If there are no further comments or questions, we stand adjourned.

[Whereupon, at 5:05 p.m., the committee was adjourned.]

[Additional information submitted for the hearing record follows:]

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