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H.R. 1081, THE ACCOUNTABILITY FOR

PRESIDENTIAL GIFTS ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY,

FINANCIAL MANAGEMENT AND

INTERGOVERNMENTAL RELATIONS

OF THE

COMMITTEE ON GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

H.R. 1081

TO AMEND TITLE 44, UNITED STATES CODE, TO DIRECT THE ARCHIVIST OF THE UNITES STATES TO MAINTAIN AN INVENTORY OF ALL

GIFTS RECEIVED FROM DOMESTIC SOURCES FOR THE PRESIDENT,

THE EXECUTIVE RESIDENCE AT THE WHITE HOUSE, OR A PRESIDENTIAL ARCHIVAL DEPOSITORY

JUNE 18, 2002

Serial No. 107–204

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

(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

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

HENRY A. WAXMAN, California

TOM LANTOS, California

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

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

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY, FINANCIAL MANAGEMENT AND

INTERGOVERNMENTAL RELATIONS

STEPHEN HORN, California, Chairman

RON LEWIS, Kentucky

DOUG OSE, California

ADAM H. PUTNAM, Florida

JOHN SULLIVAN, Oklahoma

JANICE D. SCHAKOWSKY, Illinois

MAJOR R. OWENS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

J. RUSSELL GEORGE, Staff Director and Chief Counsel

HENRY WRAY, Senior Counsel

JUSTIN PAULHAMUS, Clerk

MICHELLE ASH, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on June 18, 2002 ............................................................................... 1

Text of H.R. 1081 .............................................................................................. 3

Statement of:

Carlin, John W., Archivist of the United States; P. Daniel Smith, Special

Assistant to the Director, National Park Service, Department of the

Interior; Scott Harshbarger, president and chief executive officer, Common Cause; Paul C. Light, director, center for public service, the Brookings Institution; and ..................................................................................... 23

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York ................................................................................................... 16

Mink, Hon. Patsy T., a Representative in Congress from the State of

Hawaii ............................................................................................................ 19

Ose, Hon. Doug, a Representative in Congress from the State of California .................................................................................................................. 7

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

Carlin, John W., Archivist of the United States, prepared statement

of ..................................................................................................................... 26

Harshbarger, Scott, president and chief executive officer, Common Cause,

prepared statement of ................................................................................... 44

Light, Paul C., director, center for public service, the Brookings Institution, prepared statement of .......................................................................... 54

Maloney, Hon. Carolyn B., Representative in Congress from the State

of New York, prepared statement of ........................................................... 18

Mink, Hon. Patsy T., a Representative in Congress from the State of

Hawaii, prepared statement of .................................................................... 21

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statement of ........................................................................... 12

Smith, P. Daniel, Special Assistant to the Director, National Park Service, Department of the Interior, prepared statement of ............................ 35

Walden, Gregory S., esquire, Patton Boggs LLP, prepared statement of .... 66

(1)

H.R. 1081, THE ACCOUNTABILITY FOR

PRESIDENTIAL GIFTS ACT

TUESDAY, JUNE 18, 2002

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY, FINANCIAL

MANAGEMENT AND INTERGOVERNMENTAL RELATIONS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:04 p.m., in room

2154, Rayburn House Office Building, Hon. Stephen Horn (chairman of the subcommittee) presiding.

Present: Representatives Horn, Ose, and Maloney.

Staff present: J. Russell George, staff director and chief counsel;

Bonnie Heald, deputy staff director; Henry Wray, senior counsel;

Justin Paulhamus, clerk; Chris Barkley, assistant; Michael

Sazonov, Sterling Bentley, Freddie Ephraim, and Joe DiSilvio, interns; Barbara Kahlow, deputy staff director, Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs; Michelle

Ash, minority counsel; and Earley Green, minority assistant clerk.

Mr. HORN. A quorum being present, the Subcommittee on Government Efficiency, Financial Management and Intergovernmental

Relations will come to order.

Today, the subcommittee will consider a bill drafted by our colleague, Mr. Ose from California. The bill is H.R. 1081, the Accountability for Presidential Gifts Act. As its name implies, the purpose

of this bill is to improve accountability over the thousands of gifts

that are given to the President, to the executive residence at the

White House, or a Presidential archival depository.

Currently, six different government agencies have a hand in recording and managing Presidential gifts. That multiplicity of duties

involving these gifts can lead to confusion and create unwarranted

problems. Indeed, an investigation conducted by Mr. Ose’s Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs found very serious problems involving the Presidential gifts

during the Clinton administration. The problems that Mr. Ose’s

subcommittee identified affected virtually every aspect of gift administration, including tracking and reporting on gifts, establishing

their value, determining whether they were intended as personal

gifts or as gifts to United States, and ensuring their proper disposition. H.R. 1081 would require the National Archives and Records

Administration to maintain a comprehensive inventory of all Presidential gifts from sources other than foreign governments. All information in the inventory would be subject to public disclosure.

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Mr. Ose will describe the flaws in the existing systems and how his

bill will correct them.

Administration officials and others believe that legislation is not

needed at this time. They maintain that the current administration

has already changed the process to address the problems of the

past.

In addition, they raise concerns about whether the National Archives should be responsible for administrating an inventory of

Presidential gifts. Our witnesses today will present a full range of

views on H.R. 1081. I welcome each of you, and I look forward to

your testimony. And, Mr. Ose, the author.

[The text of H.R. 1081 follows:]

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Mr. OSE. Thank you, Mr. Chairman.

Mr. HORN. The author. And, please proceed.

Mr. OSE. Thank you, Mr. Chairman. I do have a lengthy statement. I would beg the chairman’s indulgence.

Mr. HORN. Take your time. The ranking member is not here, and

she also would like to speak on this.

STATEMENT OF HON. DOUG OSE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. OSE. All right. Mr. Chairman, as always, you have convened

a hearing that is important to our ability as a country to govern.

The American people have a right to know what gifts were received

and retained by their President. Donors of those gifts should receive no unfair advantage in the policymaking process or other governmental benefits by virtue of their gift. Several laws involving six

Federal offices and agencies govern the current system for the receipt, valuation, and disposition of Presidential gifts. Unfortunately, no single agency or person is ultimately responsible for

tracking Presidential gifts.

In early 2001, there were press accounts of President Clinton’s

last financial disclosure report and furniture gifts returned by the

Clintons to the White House residence. To prevent future such

abuses, I drafted a bill and asked Mr. Waxman to become an original cosponsor. At his suggestion, the Government Reform Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, which I chair, spent 11 months gathering the empirical data

to support this legislative effort. The subcommittee investigated

how the current system works and what legislative changes, if any,

were needed to prevent future abuses of the Presidential gifts process.

In March 2001, I introduced H.R. 1081, the Accountability for

Presidential Gifts Act. This bill establishes responsibility in one

agency for the receipt, valuation, and disposition of Presidential

gifts. On February 12th of this year, my subcommittee held a hearing to present the results of its 1-year investigation and to receive

comments on the bill. At the hearing, I released a 55-page document summarizing the subcommittee’s findings.

Mr. Chairman, I ask that you include my February 12th opening

statement and that particular document in today’s hearing record.

Mr. HORN. Without objection, it is so ordered.

Mr. OSE. Today I would like to summarize the following: How

the current system works, my subcommittee’s investigation, and

findings and recommendations made in my subcommittee’s hearing.

Here is how the current system works. The White House—you

are going to have to pay attention because it’s complicated. The

White House Gifts Unit is responsible for recording all domestic

and foreign gifts received by the First Family, including the valuation and disposition of gifts. Under the Presidential Records Act

of 1978, the National Archives and Records Administration—which

we are going to refer to as NARA from now on—accepts gifts for

Presidential libraries and stores Presidential gifts that are not immediately retained by the President but which can be recalled for

possible retention by the President.

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Under a second law, the Department of the Interior’s National

Park Service annually makes a snapshot inventory of public property in or belonging to the White House residence. In addition, the

National Park Service initially accepts gifts for the White House

residence.

Under a third law, the Office of Protocol in the Department of

State annually publishes a listing of all gifts, both tangible and

monetary, from a foreign government to a Federal employee, including to the First Family.

Under a fourth law, the Office of Government Ethics receives annual financial disclosure reports from the President for gifts retained over a reporting threshold. That threshold is currently set

at $260 in value from any source other than a relative.

Last, the General Services Administration has staff assigned to

the White House Gifts Unit, and is responsible for updating the reporting threshold for gifts and for disposing of some gifts which are

not retained by the President or sent to NARA. General Services

Administration’s regulations require a commercial appraisal for foreign gifts over a reporting threshold—that is, a certain value—that

a Federal employee, including the President, wishes to retain.

In contrast, there is no statutory requirement for a commercial

appraisal for domestic gifts over a reporting threshold. So, you see

one difference there between foreign versus domestic gifts.

In its investigation, my subcommittee examined the National

Park Service’s annual inventory and other records for the White

House residence, the financial disclosure reports still in the Office

of Government Ethics’ files, NARA’s data base for the former administration, and the White House Gifts Unit data base for the

former administration. The investigation revealed startling information about retained gifts, valuation of gifts, missing gifts, legal

rulings about gifts, and other findings.

The White House gifts system had 94,178 gift records—many of

which had more than one item on them—to the former First Family during the two-term presidency that they served. The former

First Family retained one or more gifts at 16 percent of these gift

records. That would be 14,770 such records.

The former President disclosed on his annual financial statements less than 2 percent of these retained gifts. Of those—just to

be exact, Mr. Chairman, of the 14,770 that were retained, 227 of

them were disclosed on the annual financial statements, and each

of those 227 were valued at $260 or more. These 227 gifts that

were disclosed had a total valuation of $361,968. That’s according

to the disclosure statements.

An additional 26 retained gifts of $260 or more were not disclosed on these annual financial statements.

The former First Family was not required to disclose an additional 98 retained gifts which were each valued just below the

threshold—that would be in the $240 to $259 range. These 98 gifts

totaled just over $24,000 in value; 49 percent of these gifts—of

these 98—were never appraised or otherwise independently valued.

The subcommittee found that 69 percent of certain fair trade

gifts—that is, brand name goods widely sold—were undervalued.

Chart 3–C, which is right over here, includes examples of non-fair

trade items which were probably undervalued, such as various colVerDate 11-MAY-2000 10:35 May 15, 2003 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 D:\DOCS\86825.TXT HGOVREF1 PsN: HGOVREF1
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lector’s items. Some gifts were misplaced or lost. Let me repeat

that. Some gifts were misplaced or lost. For example, a seven-foot,

three-inch by six-foot, two-inch oriental rug valued on the disclosure form at $1,200, and an inscribed Tiffany silver box valued at

$271, were both, ‘‘on loan in the residence,’’ but later, ‘‘misplaced

by a staff member, never conveyed to the President.’’ I think we

have a gift record on display over there to quantify that.

The White House Counsel made some unusual rulings relating to

gifts, which, frankly, were oddly reflected in the treatment of the

gifts. For example, in the year 2000, counsel advised, ‘‘it would be

a bad idea to accept,’’ 10 shares of GE stock; and, as a result, the

gift was returned to the sender. However, in 1997, there was a gift

of 15 shares of Coca-Cola stock valued at $1,027 that the First

Family chose to retain.

The Office of Government Ethics’ rules state that a Federal employee shall not solicit a gift. I can cite you, Mr. Chairman, the actual place where it is, if you would like.

Nonetheless, in December 2000, after the former First Lady was

elected a U.S. Senator but before her term began and she would

be subjected to the Senate’s gift rules, the former First Lady received $38,617 in china and sterling silver gifts purchased from

Borsheim’s in Omaha, NE. If you will look over here at Chart 1–

B, you will see them listed. Unlike gifts from Tiffany’s or Neiman

Marcus or other fancy retailers which only require the name of the

intended gift recipient to see his or her gift registry, Borsheim’s

Web site says, ‘‘Friends Wish List. View a friend’s wish list. You

will need their e-mail address and wish list password.’’ We have

three more charts over there on display just to give you some sense

of that.

What this means is that a donor who purchased these gifts from

Borsheim’s needed to know both the former First Lady’s personal

e-mail address and personal password to access the registry and

purchase items from her wish list. $94,365 in 45 furniture gifts are especially remarkable in their

complexity. We have another chart down here that goes through

those. Usually, the chief usher for the executive residence decides

if items should be accepted for the executive residence, and then

the National Park Service sends an official thank-you letter as

proof for the donor of his or her contribution to the Federal Government. However, in March 1993, the deputy counsel to the President

directed the chief usher—this is unbelievable—directed the chief

usher that certain items already received by the White House and

certain items not yet received were to be accepted by the National

Park Service for the executive residence. So, in effect, we were accepting gifts that hadn’t yet been offered.

It is illegal to remove U.S. Government property. For instance,

Mr. Chairman, you and I can’t take our chairs home from where

they sit behind our desks. After unfavorable press reports in February and March 2001, the former First Family returned 25 furniture items to the National Park Service. However, in September

of that year, the National Park Service apparently returned two of

these items back to the former First Family since neither had been

officially accepted by the National Park Service for the White

House residence. This points out a particular flaw in that we reVerDate 11-MAY-2000 10:35 May 15, 2003 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 D:\DOCS\86825.TXT HGOVREF1 PsN: HGOVREF1
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ceive them and then for some reason or another the National Park

Service didn’t get the acceptance done, so in effect they legally remain the property of the First Family.

The question really then arises as to who got credit for giving

them.

In addition, four furniture gifts were never disclosed on the

former President’s annual financial disclosure reports since the

White House Counsel’s Office stated that they were, ‘‘accepted,’’

prior to the inauguration—that would be in January 1993—even

though they were not received in the White House until July 20,

1993, 6 months after the inauguration.

So here we had a counsel saying you have to accept these gifts

that haven’t yet been offered, and then we have a second counsel

saying it was a mistake to accept these gifts.

Last, the former First Family still have 21 more furniture items,

none of which ever appeared in National Park Service’s White

House annual June inventory. Nineteen of these items, valued at

$38,328, were received on December 1, 2001. That is, after the

former First Lady was elected a U.S. Senator but before her term

began.

The recommendations in the February hearing were as follows—

and were received from these individuals as follows: Scott

Harshbarger as President and CEO of Common Cause; Paul Light,

the Director of Center for Public Service at Brookings Institute;

Gregory S. Walden, a former associate counsel in the White House

Counsel’s Office, a former associate counsel in the White House

Counsel’s Office for President Bush, President Bush 41, and former

ethics counsel for President-Elect George W. Bush’s transition. And

he is currently of counsel to Patton Boggs LLP, and the Honorable

William H. Taft, IV, at the Department of State.

All three witnesses on panel one, that is, Messrs. Harshbarger,

Light, and Walden, in their written statements or response to

Member questions recommend that I refer this matter for criminal

investigation by the Department of Justice.

On February 13th, I sent the Attorney General evidence relating

to the solicitation, receipt, failure to report or conversion of Presidential gifts by the former President and First Lady. One of the

documents I forwarded was Mr. Walden’s written statement in a

section captioned, ‘‘Evidence of widespread or systemic failures

should be investigated,’’ he concluded that such evidence could

form the basis for a Department of Justice investigation of possible

violations of 18 U.S. Code, Subsection 1001 regarding false statements, 18 U.S. Code, Subsection 641 regarding conversion of Federal property, and 5 CFR Subsection 2635.202(c)(1), (2), and (j) regarding solicitation of a gratuity.

Additionally, witnesses recommended that H.R. 1081 be amended

to, first, disclose all gifts received over a minimal threshold; cap

gifts over a certain threshold, excepting therefrom personalized

honorific awards and gifts from relatives or foreign officials; prohibit acceptance of gifts during certain periods, and prohibit by

statute the solicitation or coordination of gifts. After today’s hearing, I intend to prepare amendments to my bill for consideration

at a future markup.

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In conclusion, the total value of gifts retained by the former First

Family creates an appearance problem. The fact that so many gifts

were undervalued raises many questions. The fact that gifts were

misplaced or lost shows, at best, sloppy management and maybe

something more. The fact that U.S. Government property that is

the taxpayers’ property, was improperly taken is very troubling.

And, the fact that, after the former First Lady’s election to the U.S.

Senate before she was subject to the Congress’ strict gift acceptance rules, she managed to schedule the acceptance of nearly

$40,000 worth in furniture gifts, and that she participated in what

appears to be a solicitation for $40,000 in fine china and silver, is

disturbing at best. The fact of the matter is, public servants, including the President, including the members of the First Family,

should not be able to enrich themselves with lavish gifts at any

time whatsoever.

Mr. Chairman, the current system is broken and needs to be

fixed. I believe that H.R. 1081 is a necessary first step, and I commend it to the committee. Thank you.

[The prepared statement of Hon. Doug Ose follows:]

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Mr. HORN. I thank the gentleman. And now I am delighted that

this morning we have Mrs. Maloney of New York and former ranking member on this subcommittee. And we are glad to see her

back. So we are glad to see you.

STATEMENT OF HON. CAROLYN B. MALONEY, REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mrs. MALONEY. Thank you, Mr. Chairman. And I really want to

go on record in thanking you for your leadership and dedication in

protecting the public’s interests. I regret that you have made a decision not to run for reelection, but you have provided extraordinary leadership in this Congress and campaign finance reform

and protecting families, working families, and just being plain fair

to the minority and to the people of America.

But today it’s an important hearing, and we will hear from experts from the executive branch as well as representatives from

good, government watchdog organizations on the effectiveness or

lack thereof of the current Presidential Gift Reporting Act.

From the beginning, Presidents and their families have received

gifts. Take examples from the last three Presidents and—just to

mention some of the gifts that they received: According to press accounts, the Reagans were given a $2.5 million retirement home in

Bel Air. President George and Mrs. Barbara Bush were given a

barbecue pit for their home. And china and furniture was given to

the Clintons.

I am really not surprised by the generosity of American citizens.

The First Family in many ways is loved and admired by millions

of Americans and really watched like goldfish in a bowl. Today we

will review whether or not the First Family have the right to accept gifts personally, and do they have some rights to privacy?

What do and when should gifts be accepted on behalf of the U.S.

Government and the American people? What are the limits? What

triggers a personal gift or a gift to the Nation?

I support measures that add clarity to a confusing system. It is

unfair to past presidents and the current occupant of the White

House to require our Nation’s leader to comply with a system that

is flawed and unclear.

The Clintons had the White House ushers and curators offices’

review and approve everything they removed from office or removed from the White House; yet, we saw a torrent of bad press

stories last year when they left the White House.

I am deeply interested in today’s testimony regarding Mr. Ose’s

bill. At this point I don’t know whether Mr. Ose’s bill or Mrs.

Mink’s bill is the correct fix, if more aggressive oversight by Congress is the answer, or if internal changes or modifications by the

White House or Archivist’s Office will suffice. I look forward to

hearing the testimony of today’s witnesses.

Again, a system is not a functioning system if the First Family

follows the rules but still manages to be hurt by them. Bad policy

not only impacts the President and First Lady, but helps to undermine the confidence of the American people in our government.

And I would like to just respond to some of the allegations that

Mr. Ose made in his 56-page report and in his opening comments.

He alleged that the gifts to the past President and First Lady were

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undervalued. Yet, the White House Gift Unit of past administrations used certified appraisers, and the Clinton administration followed the same practice. The White House Gift Unit has for the

Clintons and past administrations used donor or store information

from which the item was purchased as a basis for gift valuation

where the cost of the item is available. No First Family in recent

times has been responsible for gift valuation. It’s done by the

House Gift Unit. So if it’s undervalued, then the person or the organization that made the mistake is the House Gift Unit.

The House Gift Unit has not needed to appraise items such as

hats, t-shirts, coffee mugs, handkerchiefs, hairbrushes, or calendars, as they are obviously below the reporting threshold.

And one thing that was missing from the report that, despite the

fact that the prior administration followed the rules that are in

place—I’m not saying that the rules might need to be changed. But

they followed the rules that were in place, and they still took the

unprecedented step of paying back—according to press accounts—

$86,000 for gifts in 2000, including china and silver, for which they

really, under the present gift guidelines, were not obligated to pay.

But I look forward to the testimony, and I thank the chairman

for his leadership on so many important issues in this Congress.

And I wish you would run for reelection, Mr. Chairman. We are

going to miss you.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

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Mr. HORN. You are welcome to the precinct in Long Beach, California. You’d have to see the legislature and use your charm on

them.

Mrs. Mink. She is on panel one. And we are delighted to have

the distinguished Member from Hawaii. And she has a bill here,

and we want to hear it.

STATEMENT OF HON. PATSY T. MINK, REPRESENTATIVE IN

CONGRESS FROM THE STATE OF HAWAII

Mrs. MINK. Thank you very much, Mr. Chairman, and members

of the subcommittee. I introduced H.R. 4776 a few months ago, and

that bill actually is the product of an earlier hearing that I was

privileged to attend in which this whole matter of Presidential gifts

was discussed and testimony taken with respect to the flaws in the

current system and things that needed to be corrected.

I am not really here to oppose our colleague Mr. Ose’s bill, but

to really advocate that we could avoid all of this embarrassment to

the White House in the future if you would consider the bill which

I proposed, which would literally make it impossible for the White

House or the First Lady to accept any gift that was more valuable

than $50, which is the current Senate rule.

It seems to me that if you go through the process of trying to

streamline the current system, you only create and aggravate the

situation. So I have come to the conclusion that, really, the White

House, the President is such an enormous figure in our society and

our form of government, and as the world looks upon the greatest

power and the greatest leader that the world has, to trivialize the

office by having to discuss from time to time flaws in the gift recording procedure or how much a gift was valued or should they

accept it or should they not, I think is an affront to that high office.

So it would seem to me much more appropriate that the White

House not be permitted to accept any. That’s not to say that gifts

are banned, because I think it is in the nature of our free society

to give gifts, but to follow the procedures which we all abide by,

and that particularly in the Senate which limits the value. So if the

value of a gift exceeds the $50 limit, then it becomes the property

of the United States. It can be recorded, it can be chronicalized in

some file or whatever. But the point is, the gifts that are more

higher value than $50 ought to be immediately considered property

of the United States. It can be given to other departments or other

entities or organizations, but it should not be considered the private property of the occupant of the White House. And I think that

if we could enact a bill like mine, we could certainly avoid in the

future any of this consternation over whether gifts of a certain nature ought to have been accepted in the first place.

So I would hope that this committee, in considering the bills that

are pending before this committee, would look at the rules that

apply to everybody else in the Federal Government—Federal employees, Members of the House, Members of the Senate. I don’t

think that we ought to use the word ‘‘gifts’’ are banned, because

that is against the nature of a loving, caring, appreciative society.

So people can give whatever they want to give; but, once given, it

should become the property of the United States if it is valued in

excess of $50.

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I think typically we see the statistics that the White House receives over 15,000 gifts a year. It’s an enormous number. I don’t

want to say that there should be less giving, but I think that a pronouncement of policy that the gifts that exceed the value of $50 belong to the people of the United States for such disposition as the

law may allow would certainly eliminate this contention after the

end of every presidency.

So I would hope that this bill would be added to the table for discussion, and I ask now that my testimony be inserted in the record

at this point. Thank you.

Mr. HORN. Without objection, it will be in the record at this

point. Thank you very much for your presentation.

Mrs. MINK. Thank you very much.

Mr. HORN. When we consider this for markup, we certainly will

have H.R. 4776 before us.

Mrs. MINK. Thank you very much.

Mr. HORN. You are quite welcome.

[The prepared statement of Hon. Patsy T. Mink follows:]

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Mr. HORN. We will now go to the panel two: The Archivist of the

United States, John W. Carlin; the Special Assistant to the National Park Service, Department of the Interior, Mr. Smith; the

president and chief executive officer of Common Cause, Scott

Harshbarger; Paul C. Light, the director, Center for Public Service,

the Brookings Institution; and we will conclude this panel two with

Gregory S. Walden, esquire, of Patton Boggs, LLP, who is thoroughly knowledgeable in this under previous administrations.

So, as you know, we do swear in witnesses.

[Witnesses sworn.]

Mr. HORN. Are there any assistants in back of you that will be

giving testimony? If that’s the case, we will swear them in now so

we don’t have to be disruptive. Anybody in the Archives?

Mr. CARLIN. Not directly, but I may consult with them on a detailed question.

Mr. HORN. That’s OK. Just as long as you mouth it. It might be

his brain, but—OK. We are delighted to have the Archivist of the

United States here, the Honorable John W. Carlin. OK, Governor,

it’s all yours.

STATEMENTS OF JOHN W. CARLIN, ARCHIVIST OF THE

UNITED STATES; P. DANIEL SMITH, SPECIAL ASSISTANT TO

THE DIRECTOR, NATIONAL PARK SERVICE, DEPARTMENT

OF THE INTERIOR; SCOTT HARSHBARGER, PRESIDENT AND

CHIEF EXECUTIVE OFFICER, COMMON CAUSE; PAUL C.

LIGHT, DIRECTOR, CENTER FOR PUBLIC SERVICE, THE

BROOKINGS INSTITUTION; AND GREGORY S. WALDEN, ESQUIRE, PATTON BOGGS LLP

Mr. CARLIN. Mr. Chairman, Mrs. Maloney, Mr. Ose, I am John

Carlin, Archivist of the United States; and I certainly thank you

for the opportunity to share the views of the National Archives and

Records Administration on H.R. 1081, the Accountability for Presidential Gifts Act.

Before proceeding, Mr. Chairman, I want to take a moment to

thank you, you personally, for all the work that you have done over

the years to serve scholarship and support the foundation of freedom that we preserve and serve every day from the National Archives. There are few in public service that understand our mission

from the perspective of both the scholar and the public servant,

and we would put you first in that category. We certainly wish you

the best as you go to your other challenges and look forward to

your transition from being a custodian of our services to again

being a customer of our services.

As we are here to today to discuss the Presidential gift legislation, I would like to just take a moment to reflect on the importance of the Presidential gift collections. The gifts that are on deposit and display in the Presidential libraries add to the public’s

understanding of the President and of the Presidency, and they

document in a way that records cannot the stages of a President’s

life, the important policy decisions of his administration, various

world and national events, and topics of historical or current interest. We approach the subject from the perspective of the agency

that can attest to the ongoing worth and historical significance of

these collections.

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As to H.R. 1081, Mr. Chairman, we appreciate that you share

our view of the importance of the Archives’ role in preserving the

Presidential gift collections and that Mr. Ose and his staff recognize the important mission carried out by the National Archives for

the American people. Any archives has to consider first and foremost the accountability and authenticity of what it preserves and

makes available for research. However, one way to protect that accountability and integrity is to argue against expansion of our mission into areas that are the proper purview of others, that we

would argue are currently being handled in a proper and appropriate manner.

Mr. Chairman, while we appreciate your concern with the importance of an accountability in the gift process and your trust in our

ability to carry it out, the National Archives and Records Administration feels that this legislation goes beyond what is necessary and

that the improvements made in the current system have already

corrected the deficiencies identified in the findings section of the

bill. In fact, some of the improvements we have implemented in

this system have come about due to Mr. Ose’s attention to this

matter and our agreement that incremental change was in order.

It is the necessity for additional change with which I respect fully

disagree.

I would like to outline our five principal concerns with the approach taken in the proposed legislation and submit for the record

a summary of the current system that we administer in providing

courtesy gift and record storage for the White House.

First, H.R. 1081 would require the Archivist of the United States

to staff or supervise functions wholly duplicative of those currently

being performed. As the Addendum explains in detail, inventories

of Presidential gifts are already maintained by the National Archives and the White House Gift Office, who both play a distinct

and important role in the handling and disposition of Presidential

gifts. So we do not see a practical need for the additional inventory

that the legislation contemplates.

Moreover, there is a significant practical problem with the proposal that the Archivist maintain a current inventory of all Presidential gifts. While the National Archives maintains a inventory of

gifts deposited by the White House with NARA for courtesy storage, the only way that the National Archives can ensure the accuracy of the required inventory of all Presidential gifts would be to

staff the entire chain of custody from receipt by the President to

ultimate disposal. In other words, the Archivist would be required

to completely duplicate the functions of the current White House

Gift Office and possibly both the National Park Service and GSA

units as well, depending on one’s interpretation of the legislation.

This approach seems neither prudent nor practical and would constitute a significant intrusion on the White House’s traditional role

in managing the gift process for the President.

Second, section 2 of the proposed bill specifies that the Archivist

of the United States must report to Congress each proposed disposition of a Presidential gift with a value greater than $250. Although this may not be the legislative intent, as written it appears

to require the Archivist to make a report to Congress before the

President can personally accept any gift. This process would add

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layers of complexity to the current process and cause unnecessary

confusion about which agent has custody of each gift before the disposition has been reported to Congress. Equally important, it would

unnecessarily and inappropriately intrude on the President’s traditional prerogative.

Third, as currently drafted, H.R. 1081 does not address the existing framework of controlling statutes and regulations in the traditional necessary distinctions among personal gifts to the President,

official gifts accepted by the President on behalf of the American

people, and gifts received by the National Park Service for the permanent White House collection. This complex system of controlling

laws, while partially based on the appraised value of the gift or the

intent of the donor, also recognizes that in many cases it is the decision of the President that determines the route and final disposition of the gift. As a practical matter, the administration of such

a system can only appropriately be managed in the Executive Office of the President and under the current delegations of authority.

As well, the National Archives believes that the procedures and

management controls associated with our current responsibilities

for White House gifts are sufficient and do not require legislative

change. Over the last several years, NARA has undergone an independent Inspector General review of our gifts operation, updated

and formalized written procedures for the National Archives courtesy storage unit, added a new staff of professionals to ensure proper handling and preservation of gifts in our custody, and regularly

reviewed our management controls.

Finally, we would question whether the central accountability

problem assumed in the legislation exists today. It has been our experience that the current administration is paying careful attention

to management controls associated with such functions and that

proper procedures are currently in place to mitigate risk of reoccurrence.

Mr. Chairman, this administration shares your commitment to

the importance of ensuring that adequate rules and procedures

exist to manage and account for Presidential gifts. Responsibility

for that process must be and is shared under the current system

by the White House, the National Archives, and the Office of Government Ethics, among others. For the reasons I have explained,

we do not believe the H.R. 1081 is a necessary or appropriate

means of furthering that goal.

Mr. Chairman, I would like to submit as an addendum to my testimony a summary of the procedures currently in place at NARA

to administer the gifts and courtesy storage for the White House;

and, obviously, I would be happy to respond to any questions at the

appropriate time.

Mr. HORN. Without objection, that document will be in the record

at this point.

Mr. CARLIN. Thank you.

[The prepared statement of Mr. Carlin follows:]

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Mr. HORN. We now move ahead to P. Daniel Smith, Special Assistant to the Director of the National Park Service, Department of

the Interior.

Mr. Smith, we are glad to have you here.

Mr. SMITH. Thank you, Mr. Chairman. I would like to submit my

entire testimony for the record and summarize it.

Mr. HORN. It’s automatically in the minute I call on you. Everything is put in right then.

Mr. SMITH. Mr. Chairman, thank you for the opportunity to appear before your committee to present the views of the Department

of the Interior on H.R. 1081. The Department does not believe that

the provisions in this bill pertaining to the National Park Service

are necessary at this time. Existing authorities provide adequate

processes for the National Park Service to accept donations for the

White House and to maintain an annual inventory.

The National Park Service accepts donations for the White House

pursuant to two different legal authorities. The first authority allows the Director of the National Park Service, when authorized

and directed by the White House Chief Usher or Curator, to accept

donations of works of art, furnishings, and historic materials for

the executive residence of the White House to become the property

of the U.S. Government. The Director of the National Park Service

has held this responsibility since 1933 under executive order; and

this responsibility to accept donations for the White House on behalf of the United States was further authorized by Congress on

June 25, 1948, under U.S.C. Title 3, Section 110, whereby the Director of the National Park Service was authorized and directed,

with approval of the President, to accept donations of works of art,

furnishings, and historical materials for use in the White House.

Section 109 of this same act also directed the Director of the National Park Service to complete an annual inventory to be submitted to the President for approval.

Since 1948, the National Park Service has accepted donations

and performs its responsibilities in accordance with this legislation.

The National Park Service accepts gifts only on behalf of the

United States for use in the executive residence of the White House

and does not accept gifts that are donated personally to the President. This is the responsibility of the White House Gift Office.

The National Park Service staff has worked closely with the

White House Chief Officer and Curator on procedures for accepting

donations for the White House and for inventorying this property.

When the National Park Service receives a request from the White

House Curator—for museum-related donations—or the Chief

Usher—for non-museum property donations—to accept a donation

for the executive residence of the White House, the Park Service

sends an official letter to the donor acknowledging and accepting

this donation to the White House on behalf of the U.S. Government

to become government property. The Curator and Chief Usher receive copies of the official letter of an acceptance sent to the donor.

In addition, for donations to the White House museum collection,

the chair of the Committee for the Preservation of the White

House, a position held by the Director of the National Park Service,

sends a Committee for the Preservation of the White House Certificate of Appreciation to the donor.

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The staff at the White House Curator’s Office enters the information for donated items into the White House museum and inventory system. The National Park Service and the Office of Curator

staff physically inventory all items donated to the White House

museum collection and other property donated to the Executive

Residence at the White House during the annual inventory process

as required by U.S. Code, Title 3, Section 109. That process is beginning this month at the White House.

As a result of concerns raised last year, the Office of the Curator

at the White House took the lead on reviewing the donation procedures and did so in consultation with the National Park Service.

This review resulted in detailed, specific, written procedures pertaining to what actions are required, beginning with when a donation is offered to the Chief Usher or the Curator until it is accepted

by the National Park Service and becomes property of the U.S.

Government, either as part of the White House Museum Collection

or as property of the Executive Residence at the White House.

Under the revised donation procedures developed by the Office of

the Curator, the National Park Service now receives copies of the

documentation for museum-related donations and for non-museum

property donations. That documentation now includes a letter of intent from the donor and a copy of a, ‘‘Acknowledgment of Donation,’’ form issued by the Curator or Chief Usher. The documentation is used to prepare the National Park Service letters of acceptance. The National Park Service acceptance letter to the donor

makes it explicitly clear that the National Park Service accepts the

donation to become the property of the United States.

A second manner in which the National Park Service may receive donations for the benefit of the White House is through the

National Park Service’s general donation authority, which is found

in U.S.C. Title 16, Section 6.

In summary, the well-established system for the National Park

Service to receive donations to the Executive Residence of the

White House provide ample safeguards to ensure proper accountability for these donations. The Department also shares the concerns by the National Archives and Records Administration and

the Office of Government Ethics that various features of the proposed legislation are wholly duplicative of current functions required under statutes and unnecessary to ensure sufficient and appropriate oversight of the gift donation process.

Mr. Chairman, this completes my prepared statement. I look forward to answering any questions you or the committee members

may have.

Mr. HORN. I thank you.

[The prepared statement of Mr. Smith follows:]

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Mr. HORN. Our next presenter is Scott Harshbarger, president

and chief executive officer of Common Cause. We are delighted to

have you here.

Mr. HARSHBARGER. Thank you very much, Mr. Chairman, Representative Maloney, Representative Ose. I would like to join with

every one here in thanking you, Mr. Chairman, for your exceptional service. It is with great regret that we see you go, particularly since you have been a leader on major reform issues both before my time in Common Cause and continued to, particularly into

late winter and spring. We are very grateful to you for that.

We are here today because Common Cause has been focused on

issues of ethics and public life. Since its creation, it has been, a national leader as an advocate on these issues in pushing for the

highest ethical standards for public officials. We understand that

the vast majority of public officials are honest, upstanding, decent

individuals. Ethics rules, however, have been put in place to help

illustrate and prove to the public this is so, even though that is a

hard sell to the elected officials; and, having come from that world,

I understand that.

But if the goal is to eliminate the appearance and suspicion of

corruption, the reality is today we ought to recognize that if our

private sector counterparts had similar rules that might have been

as strict, rigid, perhaps even uneven or viewed as unfair, we may

not have had some of the major breakdown in corporate and other

ethics that we have seen in Enron, Andersen, Global Crossing, and

a whole range of other issues that have now tested investor confidence in the marketplace.

So Common Cause comes to this with the view that this is an

issue that is very similar to the other appearances of conflicts of

interests or ethical issues, not simply as a question of accounting

or as a question of whether or who is the best way to record the

gifts. Because the most important issue here is, what is the gift?

Is the gift to the President as President of the United States or is

it a personal gift?

It’s that personal gift arena that brought us here last February.

We spoke of the Presidential gifts as part of the ethical cloud looming over Washington in which special interests are able to wield

power in the policymaking process by purchasing influence, access

and, ultimately, policy itself. We are certain the public could have

perceived that.

It is also obviously now clear that times of transition among administrations tend to lead to breakdowns of even the best of selfregulatory processes as these transitions occur. It was, after all, the

transitional period and what the President would do as he left office that caused the difficulty or certainly the perceptions of difficulty by the American people in terms of the conduct of President

Clinton and then Senator Clinton in this issue; and that’s true in

almost every Presidential transition.

So that, as we look at this, we see that this is an opportunity

to take one more step, not as important as the gigantic step that

we took toward cleaning up politics with the passage of the Bipartisan Campaign Act of 2002, which President Bush signed into law

in March. That was a very important step, even though just a

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small step, in moving forward; and we thank you and the Members

here and Congressman Ose as well for his support of that.

Taking action to prevent special interests from using gifts to buy

influence and access and ultimately a whole new policy would be

a strong complement to that.

In terms of the actual inventorying of issues, it does seem that

fixing it in one place makes sense, much of the same sense that,

while everybody may have done their job well, we had a major election problem in the year 2000 because we didn’t have just one election or even 50 elections, we had 13,000 different elections; and

somehow individual problems tended to create a constitutional crisis. In many respects, that same issue is posed here. It is not a

question of the professionalism or competence of each of the agencies involved. It is, in fact, the reality that there are five or six or

seven different agencies involved in this that poses the potential for

the problem to exist.

Therefore, whatever else we do, as we look at this we ought to

think about centralizing it. We had a couple suggestions that we

made about how, as you look simply as an inventorying process,

you might want to make clear the type of description and the identity of donors and exactly what the intent was, but other people

have talked about that a bit.

It does seem, however, that the best and the easiest way to approach this is to go further, however, and that is actually to adopt

the position that Congresswoman Mink just stated. In fact, that’s

been our view, that the simplest and most logical way to enact new

clear gift rules for the President is to apply the congressional gift

ban to the President and Vice President. And that’s not a ban. It

simply is a limit, a very specific limit. That would be the solution.

That would cure all kinds of bureaucratic or possible misinterpretations by different White House counsels over the use of discretion.

The reality would be we would see if, in fact, the American people are giving, or whether in fact once in a while people actually

give more because they are trying to gain some sort of insider access, as opposed to giving to the President. the reality is that using

the congressional gift ban would eliminate almost every one of

those problems—$50 in any one gift, and no more than $100 from

any source in the calendar year. All the rest would go to the people

of the United States in some format. That would eliminate some

of the greatest problems of distinguishing between gifts of state

and personal items.

It seems that we cannot ignore that if you are expected to adhere

by your conduct to set examples and represent the highest ideals

of public service. Surely the President of the United States needs

to lead by example and be subject to the highest standards of ethical conduct. It is, in fact, because their office is so powerful and because it’s so important that the public has an interest in preventing personal gifts that are corrupting or at least creating the appearance of corruption, or to have any doubt about why somebody

is giving a gift. It might be interesting to see if in fact these gifts

couldn’t be given, whether as many different people would give

them as do now. But that’s another issue.

The reform is essential to eliminate different standards that

White House counsels may apply, standards that different agencies

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apply. It also is important, we think, to have a law requiring more

disclosure, not just upon request. These should be regular filings,

much the same way that now campaign finance reports are made

on a regular basis, simply a quarterly basis. They are out there.

No need for people to request them. It is very important.

In conclusion, the giving of Presidential gifts create an appearance of corruption that’s harmful to the public’s confidence in the

Presidency, public officials, and government in general. Even if the

act of taking a gift does not corrupt the public official’s judgment,

the appearance of corruption undermines citizens’ faith in their

leaders and their government. Both the Clinton and Bush administrations accepted vast amounts of gifts which have been detailed.

But while the intentions of H.R. 1081 are good and we commend

it, it needs to do more.

Reforming the process to rid it of the gift-produced corruption

can and should happen; and we urge you to take that additional

step, not just centralizing and having uniformed standards but also

limiting and applying the congressional gift ban at a minimum to

the President of the United States for all the reasons and because

it is the Presidency of the United States, not somebody’s individual

office from which they in any way should or appropriately can or

could receive personal inurement. To some extent in this day and

age, maybe that comes later, after the person leaves the Presidency.

Mr. HORN. We thank you for that presentation.

[The prepared statement of Mr. Harshbarger follows:]

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Mr. HORN. And we now go with Dr. Light of the Brookings Institution, and the person who we have had on many bits of good government. And he comes here in his good government role.

So, Dr. Light, go ahead.

Mr. LIGHT. I am delighted to be here, especially before this subcommittee. I totaled it up. Roughly two-thirds of my testimony before Congress has appeared before this subcommittee; and I think

that you should take care of your former witnesses as you move

on—kind of have us transferred to another subcommittee someplace that will keep us active.

It has always been a joy to testify before you, Mrs. Maloney. This

has been a wonderful subcommittee to work with. The subcommittee has done tremendously important work over the last years:

your work on Y2K, on the Government Performance and Results

Act, on the Office of Inspector General, your authorship of the

Presidential Transitions Act with its orientation program for Presidential appointees. The list of legislation where this subcommittee

and the chairman have made a difference in improving government

performance is profound, and we are going to miss you.

Not everybody can tolerate the scintillating, exiting subject matter that this subcommittee has dealt with over those many years.

So now I appear to talk a little bit about Presidential gifts and also

to urge the chairman to climb one last hill before he leaves, and

it is a big one. The need for action on Presidential gifts, I think,

is absolutely clear.

Our reading of the public opinion data on trust in Government

suggested that is no such thing, in the public’s mind, as a Presidential gift, that the American public believes that every gift is

given for a reason, and the reason is to curry influence with the

President.

It doesn’t matter how well the National Archives does or the

Park Service does, the public believes, unfortunately, that the gifts

given to the President or given to the Park Service or inventoried

by National Archives and Records Administration are not gifts

given out of the goodness of the American public’s heart, but are

out of the desire for influence.

The question before us today, I think, is not whether legislation

is called for, but what kind of legislation ought to be enacted. The

White House is working hard, I think, to improve the process. But

White House reform is temporary, and I think my colleague from

Common Cause makes the point, well, that it is the final 3 or 4

months of an administration in which the gift-giving flood occurs

and in which the breakdowns of accountability are most apparent.

Legislation not only clarifies accountability, it creates an integrated system. It is the coin of the realm for reassuring the public

that something is being done. Just as we have now learned that

we may need to bring together the homeland security agencies into

a coordinated whole, frankly, I think that we can do the same for

Presidential gifts at a much lower level of legislative detail.

We must cure the appearance problem. There is continued confusion over who is responsible for gifts, and much as I feel that the

White House is right to be concerned about the insult embedded in

such legislation, this is not about the Bush administration. It is not

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about the Clinton administration. It is about the public’s confidence

in Government.

Can technology be part of the answer? Absolutely. I think my colleague to my left will talk a little bit about technology. Unified

data bases in which we can monitor and keep track of gifts, I

think, are right in the right direction.

Three months ago when I testified before Mr. Ose, I argued that

we should not have a ban on gifts to the President. In thinking and

listening to the testimony of my colleagues from the administration, I am starting to wonder whether or not we ought to do it.

If the Park Service is comfortable that they are doing the best

that they can, if the Archives is comfortable that it is doing the

best that it can—and I am not to dispute them—then something

must be done to restore confidence at the very center of the giftgiving process which is in the White House. And it may well be

that we have reached the moment in time where we must put the

same limits on gifts to the President that we have on gifts to Senators and other legislators.

Let me just talk briefly about the tenuous connection between

Presidential gift-giving and a pay increase for executive, legislative

and judicial officers.

I titled my testimony here, ‘‘Deliver Them Not into Temptation,’’

because I think it is time for us to consider the very real and serious pay/gap that we have created at the very top of our executive,

legislative and judicial salary structure.

We are now at a point where the pay structure encourages a future in which only three types of individuals will likely seek office—the very wealthy, who have nothing to lose; the hyperzealous,

whose low pay is proof positive of their commitment to the cause;

and the easily corruptible. I believe that just as this subcommittee

led the charge 2 years ago to double the President’s salary, it was

a tough issue to take on. It was a difficult issue to sell. I got more

hate mail because of my testimony before you at that hearing than

I have received on any other testimony I have given.

But it is time to consider the issue of raising legislative, judicial

and executive salaries again. We doubled the President’s salary,

thereby increasing the distance between Members of Congress,

judges, and senior executives and the President. Ironically, we have

done nothing to alter the pay or the gift-giving system so that

Presidents not only receive a doubling in salary, they face no limits

on the gifts they can receive.

It is wonderful opportunity, and I would encourage the chairman

in his final months in office here to consider the possibility that we

ought to remedy the implied imbalance of power that we created

by doubling the President’s salary without addressing executive,

legislative and judicial salaries. I suspect I will get plenty of hate

mail on this. Our polling data, which I have attached to my testimony, suggests that the only thing that the public dislikes more

than a Presidential pay increase is a congressional pay increase.

Mr. Chairman, there is no way to write a public opinion question

under which we can create public support or implied public support

for a congressional pay increase. No matter how we wrote the question, roughly 54 percent of the American public is strongly opposed

to a pay increase for Members of Congress. There is slightly higher

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support for a pay increase for Supreme Court justices and members

of the Federal judiciary.

It is a tall hill to climb, but I think it is one well worth climbing.

I don’t know what legislation you can attach it to. I don’t know how

you are going to do it. I don’t know when you are going to do it.

But you have only got 4 or 5 months left of legislative time in

which to try. You have got my strong support for doing so. I will

testify to this effect, should you bring forward legislation—probably

one of my last times to testify in coming years.

Let me conclude by again noting what a pleasure it has been to

be a witness before you. It is a delight to be playful and to be encouraged to be playful, but we are all serious at the end of the conversation.

I am congratulating you for your time here on Capitol Hill. You

may remember, and I hope you do, that at an earlier point in career you spent some time at Brookings. Should you decide that you

would like to have another tour of duty at that fine and distinguished think tank at 1775 Massachusetts Avenue, I am sure that

we can arrange it.

Thank you very much.

[The prepared statement of Mr. Light follows:]

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Mr. HORN. Well, I thank the gentleman. And is that a gift?

Mr. LIGHT. You would have to raise your own money.

Mr. HORN. I know that bit.

Mr. HARSHBARGER. We pay less.

Mr. HORN. Well, now the gentleman we have last as a presenter

here has been before this committee and done a wonderful job, and

is probably Mr. Ethics and Mr. Attorney for numerous administrations. And it is Gregory S. Walden, counsel, of Patton Boggs.

Mr. WALDEN. Thank you, Mr. Chairman, members of the committee. This morning, I will briefly touch on the problems with the

current Presidential gift system that require correction, outline the

reforms I believe would materially improve the system, and explain

why I think those reforms can be obtained and achieved administratively and not legislatively.

H.R. 1081 correctly identifies the two major problems of the current system: lack of accountability and confusion as to the status

of some gifts. The bill pins the lack of accountability on the fact

that several agencies play a role in the system.

Now, it is true that gift review, acceptance, reporting and disposition authorities are spread among the White House, the GSA,

OGE, the Archives, State Department and the Park Service; but I

don’t believe it is the multiplicity of agencies that is the root of the

accountability problems. Rather, I see it as a lack of transparency

and a lack of external compliance control.

I think the problems in the past were not the Park Service’s

problems, not the Archivist’s problems, not the GSA’s problems, not

the State Department’s problems; they were White House Office

problems.

Under current law, many gifts to the President are not required

to be reported publicly, and the review and approval process takes

place largely outside of public view. But I don’t think this is altogether a bad thing because of the privacy interests at stake when

talking about gifts to the President and the First Family.

Now, Congress recognized those privacy interests when it set a

reporting threshold, and raised the reporting threshold to $250,

then $260; that is the reporting threshold for financial disclosure

reports for Members of Congress and for executive branch officials.

But without accountability that would come with transparency, you

need something else. ‘‘Compliance control’’ is what I would call it—

review, auditing, and enforcement; they must assume greater importance.

The energy policy subcommittee’s report in February showed four

major failures in the gift system in the last administration: a failure to register gifts; a failure to report gifts that should have been

reported on the financial disclosure report, but were not; improper

removal of gifts that had been accepted as government property;

and improper solicitation of gifts.

Now, there are laws currently on the books addressing gift reporting requirements, conversion of Federal property and restrictions on solicitation. But the legal compliance controls on the review, the acceptance, the reporting and the disposition of gifts are

inadequate. So any bill that seeks to improve the integrity of the

gift system should address these problems.

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Concerning the failure to register gifts in the first place, I am not

certain that assigning the responsibility to the National Archives

or any other agency is the answer. Even if the Archivist were to

take over this responsibility, he would need to rely on the diligence

and the compliance of the White House Office staff, as the White

House Gift Office does so now, unless you were to create a duplicate staff or assign additional Archives staff and put them inside

the White House Office.

As effective, and perhaps more so, would be to adopt a set of

written procedures to be followed by all White House staff, to ensure that every gift given to the President and the First Lady is

reported within a very short period of time and done so electronically. Now, it appears from reading the prepared statements of the

Archivist and the Park Service that this White House has put in

place some of those procedures.

Regarding valuation, how can we ensure that each gift is properly valued? Well, I do not doubt that every administration, every

White House, has had some sort of written procedures, but they

didn’t work last time. They didn’t work. And so, even if you have

a set of written procedures showing how you go to an independent

appraiser, you need some sort of outside review, I would suggest,

on a regular and random basis; but I wouldn’t put that review outside of the Executive Office of the President. I would keep it inside

the White House Office, assign the White House counsel or perhaps

the Office of Administration to do that.

Now, the advantage of having the White House Counsel’s Office

do this audit function is to preserve the legitimate privacy interests

of the President and the First Family. And the White House Counsel’s Office, I would submit, is in a better position to determine

whether the donor of the gift or the circumstances of the gift raise

appearance problems such that the gift should be declined and returned.

Also, when reviewing the financial disclosure report that is filed

by the President, it is my experience—and I believe it is done so

now—that the President’s personal attorney and the White House

Counsel’s Office review the financial disclosure form in draft before

it is submitted; so that if any gifts appear on that form that would

raise an appearance question, they are rejected.

I would submit that the White House Counsel’s Office ought to

review the entire White House gifts data base, assuming one is created or maintained or put in place. And that would, again, should

assure that there is not improper valuation.

As for the risk of improper removal of government property, conversion of government property, I am encouraged by the testimony

of the Park Service that there seems to be an immediate labeling

done of property that is given to the President and accepted on behalf of the United States. This labeling should be done also as to

gifts that have not yet been formally accepted by the President or

personally or by the United States that are on display in the White

House for the duration of the Presidency.

H.R. 1081 would require the Archivist to maintain an inventory.

I think this is a sound requirement. I would just suggest that the

White House Gift Office data base could be that inventory. And as

for property that is accepted under the Park Service’s authority,

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that the Park Service data base could be maintained. Perhaps we

should explore how the Park Service data base and the Archivist’s

data base and the White House Gift Office data base can be harmonized so as not necessarily to avoid any problems, but at the

same time to preserve the privacy interests of the President.

So, as you can see, all of these actions I believe can be taken administratively. Some of them have already been taken based on the

prepared testimony we have heard today.

Undoubtedly, the gift system broke down in the last administration, but I am not resigned to the fact that we need legislation to

prevent its recurrence. So at this time, I would say, legislation is

premature. We ought to give this White House and this executive

branch an opportunity to disclose to this committee its written procedures and protocols, and hope that will be sufficient.

Now, the bill would exempt from the required report to Congress gifts from relatives of the President, and gifts under $250, but

these gifts would still be recorded in the Archivist’s data base,

which information would be available to the public upon request.

I know other witnesses believe that these gifts ought to be disclosed to the public. But I would suggest that when gifts are accepted personally, and they are under the threshold that Congress

has set, then there is not a corresponding public interest, a countervailing public interests that trumps the President’s privacy interest.

Now, Congress can certainly exercise its oversight authority,

which it did in February and it is doing today and bring before it

government officials to explain the protocols and procedures. And

perhaps even to ensure that any audit done within the White

House Office is done and performed properly.

But regardless of whatever reform is enacted, whether by law or

administratively, no statute or set of procedures will render a gift

system impervious to simple error or even corruption, because, in

the end, the integrity of any Presidential gift system, like any operating system which involves individuals, depends on the competent

conscientiousness and judgment of officials who are entrusted with

the responsibility.

Thank you.

[The prepared statement of Mr. Walden follows:]

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Mr. HORN. Thank you.

We will now start the questioning, and we are going to do it 5

minutes apiece. And we will keep rolling around, and we will share

it between parties. And I am going to start out on a few questions

for the Archivist of the United States.

Governor Carlin, can you give us an idea of what staffing and

funds the Archivist would need to carry out the new responsibilities under H.R. 1081, which proposes to—what do you think? Have

you done some budget thinking on what it would cost you in manpower, womenpower, whatever?

Mr. CARLIN. We have not done any detailed analysis from a

budget point of view. To do so, we would have to, with the committee, get a clearer understanding of intent, so that we would be producing a budget that would carry out what the committee desired

to actually have happen.

It is clear it would take more resources. How much more would

depend upon to what extent you would expect us to really duplicate

what other existing agencies are now doing.

For an example, as I mentioned in my testimony, if we are to re- port to Congress every gift over $250, at what part in the process

should that take place? If it is at the very front end, we would have

to be at the front end, and that would require staff. It would also

require resources to do appraising that we do not do at this point.

Obviously, with clarification on the exact implementation you

would want us to do, we could certainly produce a budget.

It would require more. I don’t think that is the issue, pro or con.

We would not argue against the legislation because it would cost

money. Our points are as we stated in my testimony.

Mr. HORN. How about the Interior? How much space do you take

up now in these various gifts that are given to the Presidency?

Mr. SMITH. Mr. Chairman, I don’t know the square footage of

that. But I do know that we have offsite locations for that. I can

certainly provide that for the record.

Mr. HORN. Well, I just wonder—I am not holding you to the

inches. I am just—getting a feeling.

Do you have a room like this that would take, during a 4-year

administration, and they all have these things in this kind of

space?

Mr. SMITH. Mr. Chairman, again, I don’t know the details. It

would be larger than that. It would be a museum type of quality

space. And there are press reports of how they go back and forth

and look for furniture, especially the First Ladies do that. So it

would be what you would expect to be, an accredited type of storage space for that.

So it would be quite a bit of storage space. I would provide that

for the record.

Mr. HORN. I am interested particularly in the furniture and the

paintings which people generously give to the White House and—

starting with Ms. Kennedy and the Curators there. It would seem

that certainly is what we want turned back. We want it to be part

of the people’s museum when they go through the White House.

Do you have quite a bit of that during the course of a year?

Mr. SMITH. As I understand it, there is, especially in the early

stages of that, as the First Family would look to see how they

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would like to set up the various rooms in the White House. But,

again, I would like to assure the committee that where that storage

space is located, offsite, it is first-class, fully accredited, fire controlled, humidity controlled. Those collections are protected as you

would expect a gift to the White House and the Nation should be.

Mr. HORN. That is good to know.

I now yield 5 minutes to the gentlewoman from New York.

Mrs. MALONEY. Thank you, Mr. Chairman. And thank you—and

I welcome all of the panelists and thank you for all of your hard

work, and particularly Scott Harshbarger with whom I worked on

what I consider one of the most important bills that has passed

during my time here in Congress, campaign finance reform. And

your organization played a tremendous role in that for decades, literally decades.

And when I came here as a freshman in 1992, one of the first

bills that I introduced, along with my freshman class, was the congressional gift ban, which became law.

But I am not as clear on Presidential gifts. I don’t think I support a ban, particularly for foreign gifts. I think some nations

would consider it rude if we said we don’t want to accept their gift,

and some of their presents have helped create better communication between our two countries.

I would say that the gift of the pandas to our country was a wonderful gesture that has improved education and understanding of

our young people, more, of China. I know my daughter has a map

of where the pandas live, and she comes every year to see them at

the Washington Zoo.

What exactly is the delineation between a gift to the President

and a gift to the American people or the White House? What are

the guidelines for that? Is every gift from a foreign nation a gift

to the country? When is it a gift to the White House?

And I would say that many of these gifts end up in Presidential

libraries as part of their museums if they are not part of the White

House itself.

So are there guidelines when it is a Presidential museum gift, a

Presidential gift or a gift to the Nation? Is every gift from a head

of state a gift to the Nation when they give it to our President?

What is the delineation? Does anyone know the exact delineation?

Mr. WALDEN. $260, if the value of the gift is over $260, it is automatically deemed the property of the United States. This is under

the Foreign Gift and Decorations Act as implemented by the State

Department through regulations.

If it is under $260, it can be accepted as a sign of courtesy if its

rejection or declination would be an embarrassment to the foreign

relations of the United States. That is a paraphrase.

Mrs. MALONEY. How is the delineation of what goes to Presidential libraries? Everything over $260 belongs to the White

House, it cannot go to a Presidential library; or is there some consideration?

Mr. CARLIN. Those that are given with the intent that they go

to the White House collection obviously would—the Park Service

would take care of.

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But, yes, we have many, many foreign gifts that end up in individual Presidential libraries. In fact, I think the vast majority of

foreign gifts do end up in Presidential libraries.

Mrs. MALONEY. So it is the intent of the giving country? They

will say, I want this for the White House or the Presidential library. Who determines where this gift goes?

Mr. CARLIN. I think that is decided by the White House.

Mr. HARSHBARGER. I just want to stress, you are in the middle

of some very important distinctions here. Our point is that none of

these gifts would be precluded at all. It would simply be that it is

disclosed, who gave it, what it was. That is one whole level, disclosure.

The second is, they would not be the personal property of the inhabitants of the office. That is—that is the distinction that we are

seeking to make, which actually we believe to be the intent of the

congressional gift ban, perhaps it shouldn’t be a ‘‘gift ban.’’ It is a

‘‘limit.’’ It just simply says that over a certain amount we are not

going to have to do all of this discussion about it. We are simply

going to say, This goes; this is no longer the property of the individual who inhabits. It may be of the White House, it may be of the

Office Of the Presidency, it may be these other distinctions that

people who are—can make.

But I think that is the distinction we are trying to make. That

is where people have the problem.

Mrs. MALONEY. What I would like a clarification to, what about

a personal gift? Say Mrs. Bush was my next-door neighbor, and I

gave her a book of poetry that was worth $300? Could she accept

this book of poetry and read it every night, if she so chose?

And also I know that many cultural institutions invite the First

Families to come to their openings or to their opera or ballet. Say

the First Family went to the Metropolitan Opera; is that a gift?

What if they go out to dinner with friends, and the friend wants

to pay for the dinner? Is that a gift that must be disclosed?

Could you clarify—is there—how are personal, close personal

friends—say a college friend wanted to send the President some

books that he thought were inspiring. Could he do that? Could the

President keep them, or do they have to go a Presidential library

that he can’t even look at them.

And I would like the Archivist and Mr. Smith from the museum

to answer first.

Mr. CARLIN. Well, let my first explore your specific with the book

for Mrs. Bush.

If it was appraised at $300, first of all, she could accept it. If the

intent was that it would be a personal gift for her, she could accept.

And because it is above the limit, on an annual basis it should be

part of the report that goes in for the ethics and, ultimately, whatever tax implication that might have.

I would yield to my colleague, Mr. Walden, on the specifics as far

as when it gets down to the details of what you are making reference to—a night at the Kennedy Center or at the Metropolitan

Opera—because we have no experience as an agency on receiving

those kinds of gifts.

Mr. WALDEN. Well, right now the President and the First Lady

are not subject to any statutory restriction on gifts. There is only

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a reporting obligation if the value of the gift is $260, or the aggregate of gifts received from any one source in a period of a year is

$260 or more.

The Office of Government Ethics regulations specify that for entertainment, you look at the ticket price. If a night at the opera is

$100—or $200; I have not been at the opera recently, I am not sure

if I am in the ball park there—then if it is over $260, it would have

to be reported on the financial disclosure report. A gift to the First

Lady that is independent of her relationship to the President, because perhaps you went to college with the First Lady, and you

give a gift to the First Lady, that does not have to be reported on

the financial disclosure report.

Mrs. MALONEY. But if I gave it to the President, it would have

to be?

Mr. WALDEN. If it is over $260.

Mrs. MALONEY. What about a dinner with their friends? Their

next-door neighbors come to Washington; they want to take them

out to dinner. Can they go out to dinner?

Mr. WALDEN. Yes.

Mrs. MALONEY. Are we getting so that our First Ladies and

Presidents can’t even talk to people because there are so many

laws that say—I don’t know.

Mr. LIGHT. What if one of your friends comes to town and wants

to take you to dinner?

Mrs. MALONEY. I don’t go to dinner. I just work all of the time.

No, seriously, my husband thought that going to Washington was

going to be fun. He came up here two or three times. I get out of

the office past 12 o’clock; we are on the floor at 1 or 2 o’clock in

the morning.

I take them to dinner in the Members’ dining room. That is what

I do.

But I am just curious, because everybody is—as Scott said earlier

in his testimony, everybody wants to be honest. I certainly believe

that every President and First Lady is of the highest moral ethics;

you would not get to that position without it. But you want to

make sure that the laws are clear so that you don’t—you know, you

can go out to dinner with your college buddy and violate a law.

Mr. HARSHBARGER. This is a problem that exists with the ethics

laws generally. I mean, it is one you face; it is one that every person here faces to make that distinction. It may well be, rightly or

wrongly, part of the double standard that applies to being in public

life.

I make a—not a facetious remark, that we might be better if people holding private positions of power adhered to some of those

standards as well.

But the other side of it is, the reason we have tended to do—have

tended to have these rules and limits is for clarity, for purposes of

clarity.

Mrs. MALONEY. But tied to that was the statement by Mr. Walden that you want to consider privacy. And if you could, elaborate

on that. If you have to disclose everyone you are having dinner

with, everyone you are going out to see—the Kennedy Center, if

you take your daughter, you are going to be—or your two daughVerDate 11-MAY-2000 10:35 May 15, 2003 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 D:\DOCS\86825.TXT HGOVREF1 PsN: HGOVREF1
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ters, you are going to be over the gift ban. You are going to be over

$200.

So you have to disclose everything—every person you are talking

to, every place you go, everything that your college buddy sends

you—you know, the 15 books he thinks are going to inspire you;

please read them—you are going to have to disclose all of this.

Now, who has access? You have no privacy on what you are reading, where you are going, who you are talking to. How is the privacy there when everything has to be disclosed?

I refer to the attorney on the panel, Mr. Walden. How do you balance the privacy aspect?

Mr. WALDEN. Well, Congress has set a threshold, a reporting

threshold. And under that threshold, gifts to the President and the

First Lady are not reported, and they are not disclosed even if

there were a Freedom of Information Act request on the White

House, because the White House office is not subject to FOIA.

So the privacy interests are respected by having a threshold of

reporting at $260, it used to be $100, fairly recently, in the last 10

or 12 years.

So it is set legislatively. This Congress obviously has the authority to reduce or lower the reporting threshold. I would not advocate

it, to lower it, which would require more reporting, but I think

would erode some legitimate privacy interests of all Federal employees.

Mrs. MALONEY. My time is up.

Mr. HORN. I thank the woman. More than that, so Mr. Ose will

get 15 minutes on questioning.

Mr. OSE. Thank you, Mr. Chairman. I apologize. At 12 or shortly

thereafter I am managing a bill from the larger committee on the

floor, and I will have to depart. So I will move expeditiously.

I am particularly interested in Mr. Harshbarger’s, Mr. Light’s

and Mr. Walden’s answer to the question: Do you support—the

three witnesses on the right, on the right-hand side of the table,

the answer to the question: Do you support disclosure of all gifts

or only gifts over a certain threshold? And depending on your answer as to whether there is a threshold, what threshold do you recommend?

Mr. Harshbarger.

Mr. HARSHBARGER. I think there should be a threshold.

Mr. OSE. You have got to keep in mind that I’ve got to leave in,

like, 15 minutes.

Mr. HARSHBARGER. Very quickly, I think the key thing is to have

an amount, whether it is $50 or $100. I mean, what that limit

should be should be clear. And it—the position that we have asserted here is that I would like to have a strong reason why it

shouldn’t be the same limits that apply to congressional—House

and Senate.

Mr. OSE. Mr. Light.

Mr. LIGHT. I think there should be a disclosure limit. I think it

should be the same as for Members of Congress.

Mr. WALDEN. There should be a threshold limit. And the President, as an elected official, should have the same amount or

threshold as Members of Congress.

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Mr. OSE. Mr. Harshbarger has recommended regular posting of

gifts information on the Internet, which I think is a great advantage, I think.

Governor, what is your reaction to that? I know what Mr.

Harshbarger’s position is. I want to ask the other four. Do you believe we should have a regularly posting on the Internet of gifts

that have been received at the White House?

Mr. CARLIN. It would be our position to implement the policy

that you pass. We have got enough challenges without taking positions on what thresholds should be or not be.

Mr. OSE. You are for or against posting?

Mr. CARLIN. Obviously, as an agency, we are for access. But in

terms of the specific policy that this would be different than our

normal operating procedure, we would yield to you.

But, generally, yes, we are for access to information. That is

what we are all about.

Mr. SMITH. The Park Service would defer to Archives on that. We

do not deal with the personal gifts you are talking about.

Mr. OSE. Mr. Light, do you think we ought to post this information on the Internet?

Mr. LIGHT. NARA has got one of the best sites in the Federal

Government, and this would only augment its drawing power. Yes,

I am in favor of it.

Mr. OSE. With what frequency do you recommend them posting?

Daily? Weekly? Monthly? Quarterly?

Mr. LIGHT. We have the technology to do this almost instantaneously.

Mr. OSE. OK.

Mr. Walden, any observations?

Mr. WALDEN. For foreign gifts, I would support putting on the

Internet all foreign gifts that are deemed property of the United

States.

For gifts accepted for the libraries, gifts accepted by the Archives

under its authorities, or gifts accepted by the Park Service, I would

support a data base. For personally accepted gifts, I would not.

The financial disclosure report that everone files, all public officials file, must be destroyed after 6 years. And if the information

is put on the Net, then it is permanent. If the policy on destroying

financial disclosure reports is to be changed, then maybe I would

revisit that.

Mr. OSE. I will tell you that was one of the difficulties that we

had in trying to quantify the extent of the problem, because we

could not go back in the records we no longer had. It was a difficulty for us. And, we have been attacked because we only had

records for one administration, but that was reality.

Mr. Harshbarger has got a lot of recommendations. I mean, I

know what your written testimony is, but I am going to ask the

others. I think these two gentlemen are going to say, we will follow

the will of Congress, whether or not the President signs any bill.

Mr. Light, what is your view of the need for the donor’s occupation and employer?

Mr. LIGHT. We require the occupation and employer of all transition team members, for example. It is a very simple flag to mark,

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and I don’t see any problem with including it. Certainly the employer is a de minimis requirement, I would think.

Mr. OSE. Now that is not a piece of information that is currently

collected on these gift forms. So you think it ought to be added?

Mr. LIGHT. Yes. What we have across all of those laws for campaign disclosures, for transition participation, are a patchwork of

different requirements, depending on what time of year you happen

to be involved or what you are giving.

I think this subcommittee could do everyone a favor by

rationalizing the reporting requirements across the different kinds

of things we give to our political leaders.

Mr. OSE. Mr. Walden, do you agree?

Mr. WALDEN. On one’s financial disclosure report, I think it

would help to know the employer or the business with which the

donor is affiliated. I also think it might assist the White House’s

job to ask that any gift be accompanied by donor identity so that

the counsel’s office could adequately determine whether any gift

would pose an appearance problem.

Mr. OSE. OK.

Now, we talked about the maximum cap. If I understand, Mr.

Harshbarger and the two of you believe the standards for the executive branch should be the same as for the legislative branch.

Whatever it is, it is X; am I correct?

Mr. WALDEN. On disclosure, yes.

Mr. OSE. Yes.

Do you support a cap on either the individual value of the gift

or the aggregate value of the gift?

If I understand your testimony, it is that you do support a cap

of $50 on the individual gift and $100 in the aggregate; is that correct?

Mr. LIGHT. No. That depends on who you are talking to.

Mr. OSE. Mr. Harshbarger, is that your testimony?

Mr. HARSHBARGER. In terms of the individual gifts, our view was,

it would be exactly the same as the congressional.

Mr. OSE. Whatever the House and Senate is?

Mr. HARSHBARGER. Whatever the House and Senate is. Any

other size gifts can be received. They can be received. They just become—they are just very clearly the property of, you know——

Mr. OSE. This is the point I am trying to get at. There is no prohibition on a gift being received. It is whether or not the individual

can keep it.

Mr. HARSHBARGER. That is right. That is the limit that we are

trying to—I think you were trying to—that is what we are trying

to draw here as well.

Mr. OSE. Let me go to a different subject.

A question arose in the last administration as it relates to when

gifts were received. There was a window after the election before

a member of the First Family was sworn into office.

Mr. Light, your testimony indicated that you thought there may

be merit in prohibiting gift-taking during certain periods. I want to

ask Mr. Harshbarger, Mr. Light, Mr. Walden whether or not they

support including prohibited periods within this legislation?

Mr. Harshbarger.

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Mr. HARSHBARGER. Yes. When we talked about this before, I

mean it—first of all, it is likely to be a fairly rare circumstance.

But on the other side, the better course seemed to be, very clearly,

that there was that window that caused the problem for

everybody’s purposes.

So I would think that it is reasonable to have a period in which,

in that transition, you have limitations; or at least you have limitations apply that are the same, that apply to everybody else in those

circumstances.

Mr. OSE. So if you are a Member-elect kind of thing, you would

be subject to those?

Mr. HARSHBARGER. I would think that you should be subject to

those precisely because you are a Member-elect, and that there

shouldn’t be a distinction between you at that point and then the

office that you are—that you are about to hold.

Mr. OSE. Mr. Light, do you agree with that?

Mr. LIGHT. You know, we cover everyone in the transition coming

into office with very clear disclosure and bans on acceptance of gifts

and so forth.

You know, I wish it weren’t true. I wish we weren’t having this

hearing. I wish you hadn’t dug up all of this data. I wish it wasn’t

out there.

Mr. OSE. This is very tawdry.

Mr. LIGHT. But, you know, the fact is that we are at a moment

now where we have to cure a problem in the public’s mind; and it

is particularly serious in the last months of an administration. The

appearance problems that came out of one, single administration I

think have tainted public attitudes for future Presidents; and we

may have to do this as a matter of course no matter how difficult

it is to us.

Mr. OSE. So you would broaden it beyond just the Member-elect

issue, even if someone in the administration or the First Family

was not—you would still have that blackout period?

Mr. LIGHT. I think you should have a blackout period.

Mr. OSE. Mr. Walden.

Mr. WALDEN. On the transition coming in, I would support disclosure of gifts. I would not support a ban or a restriction on gifts.

Mr. HORN. If my colleague will permit me, before you leave, what

rules apply to gifts to the Vice President and the spouse, and do

they need to be changed? What do we do now in terms of the Vice

Presidency?

Mr. WALDEN. The Vice President has the same exception that the

President enjoys from the gift restrictions. So the Vice President

may accept any gift. That does not mean the Vice President accepts

all gifts; any gift can always be declined.

Same reporting requirements: $260 aggregate from one source in

a reporting period must be disclosed.

Mr. HORN. How about foreign gifts? It would seem to me that he

has got to spend a lot of time when the President is not in town

and so forth.

Mr. WALDEN. All foreign gifts, whether given to a junior executive branch employee or the President or the Vice President, fall

under the Foreign Gifts and Decorations Act. So if the value is

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$260 or more, it automatically becomes the property of the United

States.

Mr. HORN. Thank you.

Mr. OSE. Thank you, Mr. Chairman.

Mr. Harshbarger, Mr. Light, Mr. Walden, do you support amending H.R. 1081 to include a legislative prohibition on solicitation or

coordination of gifts to the First Family?

Mr. HARSHBARGER. Just—I didn’t hear.

Mr. OSE. Do you support a legislative—statutory as opposed to

regulatory—prohibition on solicitation or coordination of gifts to the

First Family?

Right now, it is a regulatory issue that says, well, you shouldn’t

do it. I am asking you whether or not you think we ought to put

that in statute.

Mr. HARSHBARGER. You know, strangely, from this discussion before, I don’t disagree with Greg’s position that it would be wonderful if we could assume, you know, the regulatory action of—the actions of individuals would apply here.

But I think when—it is inevitable when you have a particular

problem, if there—you know, that the legislation becomes one way

in which you try to deal with it; I don’t think that will solve every

problem.

We obviously have gone through this discussion on campaign finance reform. People are going to think of other ways around it.

But just that the law doesn’t solve every problem doesn’t mean we

don’t pass it and try to do—we do a lot of crimes and conduct like

this.

So I think here you have an example of what was—if it was a

loophole, I agree with Mr. Light that this was a unique circumstance that highlighted a major problem that clearly has assisted in undermining people’s confidence. It is not a focus on

Democrats or Republicans. It is the issue. And I think that, therefore, carefully crafted legislation that would address and remedy,

at least fill these loopholes would be helpful.

And, you know, I think if you had the limit already, then you add

that, you can’t do—if you can’t do directly these kinds of things,

you shouldn’t be able to do them indirectly or through agents or

through some other kind——

Mr. OSE. I take that as a yes.

Mr. Light, do you support a statutory prohibition?

Mr. LIGHT. It depends. If you put a ban on acceptance of gifts,

you know, you are almost—it is redundant to say, don’t solicit gifts

that you can’t take. But it depends on how the legislation goes.

If you are not going to adopt a variation of Representative Mink’s

proposal, along with yours, then I would say, yes, ban coordinated

solicitation, although it is distasteful that we have to say in statute

that you shouldn’t do the obviously unethical thing. You know what

I mean?

Mr. OSE. Yes.

Mr. Walden, any thoughts?

Mr. WALDEN. I would not oppose codifying the ban on solicitation

that is found in regulations. But I would not favor putting it in

Title 18, making it a criminal provision. As a general matter, this

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is a much larger subject, I don’t favor criminalizing ethics rules.

But codifying it just as a civil statute, I would not oppose.

Mr. OSE. OK.

Now, the—Mr. Light, your testimony states, ‘‘Valuation of gifts

should be independent, consistent and based on a clearly transparent methodology.’’

And Mr. Walden states, ‘‘If there are no written guidelines on

how to conduct the valuation, including when it is necessary to obtain a commercial or independent appraisal, guidelines could be

written after consultation with other appraisal experts.’’ Then he

adds that ‘‘I concede that assigning a valuation process to an entity

outside of the White House would ensure proper valuation.’’

Mr. Harshbarger, what is your view of the need for independent

valuation or appraisals of nonminimal-valued gifts, that is, those

above or subject to the threshold question?

Mr. HARSHBARGER. I mean, I respect very much Mr. Walden’s position.

I want to echo one thing. I think one thing we do need to be careful about is criminalizing this conduct, because I think that it tends

to make it very hard as a prosecutor to prosecute these cases.

Therefore, you tend not to do them. So civil violations can sometimes serve the same purpose. I just wanted to echo that.

We do a lot of that, making things that make it hard for lots of

purposes, for juries——

Mr. OSE. How about on the valuation?

Mr. HARSHBARGER. Now on this one, I would say—I think White

House counsel, it would be great if White House counsel performed

these functions independently.

We now have enough examples—and I hate to go back to this because it dates me, the 30th anniversary of Watergate. We ought

to—at a certain point, to rely upon the discretion of an official who

holds his or her job by virtue of simply the pleasure of the person

that they are charged with regulating. We ought to see and understand that even though they are supposed to be independent, they

are supposed to be professionals, first and foremost.

We see it in the White House. But it is not just public service.

We now see it in corporations all over this country. Therefore, independent, outside audits at a certain—at regular points would be,

I think, beneficial to the integrity of the professionals inside; would

give them more ability to be independent and to be credible inside,

because you knew the outside thing was there to validate it.

Mr. OSE. All right.

Mr. Light, clearly, I take your comment to be supportive of independent valuation?

Mr. LIGHT. We would probably want to steer clear of an auditing

firm that starts with the letter A. But other than that, yeah, we

could figure that one out.

Mr. OSE. Mr. Walden.

Mr. WALDEN. Independent of the White House Gift Office, but inside the White House. I think OGE and, to some extent, GAO could

conduct some oversight as to the job the White House Counsel’s Office is doing.

But in the first instance, I would entrust the responsibility to the

White House counsel.

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Mr. OSE. Mr. Chairman, I am sorry. I have to go to the floor to

manage this bill. I have a number of questions that remain. I can

submit them for the record.

Mr. HORN. Well, we can ask some of them.

Mr. OSE. I appreciate that. This is a very serious issue.

I think the witnesses’ comments that this is an unfortunate thing

to have to discuss are accurate. It is—the issue we are trying to

deal with has no reference whatsoever to who or who may not be

in this or that White House during this or that time. This is an

issue about giving the people of this country the opportunity to

have faith that the decisions being made at the highest levels of

government are not being inordinately influenced.

Mr. HORN. OK. Let me pursue some of these questions.

Mr. Smith, Governor Carlin, do you know what changes the

White House Gifts Office has made to improve its controls?

Mr. CARLIN. I cannot speak specifically to exactly what has gone

on, other than in our workings with them back and forth. It is clear

they have made adjustments and are operating in a way from

where we can observe in a very appropriate way.

Mr. HORN. By law, Mr. Smith, the Park Service conducts a socalled ‘‘snapshot inventory’’ of all property belonging to the Executive Residence, including gifts in June of each year. Would it not

be better for the Park Service to maintain a current and ongoing

inventory of all gifts it accepts for the Executive Residence as it receives them?

Mr. SMITH. The documentation, as it receives it, is coordinated

with either the Curator or the Chief Usher. The annual count is

to actually inventory what is there.

Mr. Chairman, this includes such things as pieces of flatware

and china and that type of thing. So it is an ongoing count to account for what is on the record.

Mr. HORN. Do you know what changes in the White House gifts

office have been made to improve its controls?

Mr. SMITH. Not in the gifts office, Mr. Chairman. Again, that

deals with personal donations of the President. The change that

was made in coordination with the White House Curator’s office

and the White House Chief Usher is that the documentation, the

coordination of what either the Curator or the Chief Usher requests the Park Service to accept, either for the museum collection

or for the residence, is that there has been a very key clarification

made of the intent of the donor, meaning that it is going to be for

the U.S. Government, and that is acknowledged back to the donor,

and there is a better recordkeeping process between the Park Service and the White House offices.

Mr. HORN. Moving ahead, Mr. Harshbarger, Mr. Light, unfortunately, many of the recent problems with Presidential gifts apparently stemmed from outright violations of the existing statutory requirements and administrative controls.

How will imposing additional requirements and controls solve

those kinds of problems?

Mr. HARSHBARGER. I think the answer is that enforcement, as

has been mentioned, is key to this. I mean, if you have no credible

expectation or credible threat that rules or regulations or laws are

going to be enforced, then there—the sanction value isn’t there.

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I think there is a certain measure—I think we have always believed that public disclosures and public scrutiny tend to add measures of enforcement that have a useful effect.

The reality here is, I think, that you have—you are hoping that

by having some measures of independence come into the process

that will facilitate it, having some measures of public disclosure

that don’t now exist will also help serve as an antiseptic.

But I think if you also look at what the actual remedy is, if the

remedy is going to, more than this congressional gift ban, limit restriction, I think that, in and of itself, will have significant benefit,

because then any violations will be much clearer.

I mean, the very problem we have here is that what exactly is

a violation or what isn’t is almost as complicated. Once that becomes very difficult, it is very hard to have credible and consistent

enforcement.

Mr. LIGHT. The current system is such a mess in terms of allocating, making decisions, and valuing gifts that one could easily

violate it without knowing. I am not willing to say that mistakes

made in the last few months of the previous administration were

deliberate or not. It is hard to tell. There appears to be on these

charts a pattern of picking and choosing the gifts that would fit

best with the President’s future property needs.

But the system is such a mess that H.R. 1081 and other efforts

to kind of rationalize it should improve performance right away,

just by making it clear exactly where the lines are drawn.

Mr. HORN. Is it basically—well, the Archivist points out from his

agency, he couldn’t assure that inventory is, in fact, comprehensive.

Now, only the White House could provide that assurance; and in

view of this, do you believe the White House should have responsibility to maintain the inventory? What do you think?

Mr. LIGHT. Well, the gifts come in the front door at the White

House—or the back door or the side door or whatever it is, but they

came to the White House. They are not sent to the Archives. Somebody has got to log the gifts someplace.

The beauty of an outright ban above a certain level is that you

eliminate the logging process. Basically, you are saying that if it

is above a certain level, it goes back if it is a personal gift.

But, I don’t see how you can transfer—well, I suppose you can,

technically. But Americans who want to give the President a gift

send it to the White House at 1600 Pennsylvania Avenue. Now,

whether you want to put all of those in the back of a truck and

take them down to Archives, I don’t know.

Mr. HARSHBARGER. This problem is not unique to the White

House. I mean, every public official has to have some system by

which he or she does screening and reviewing of gifts in a variety

of ways. Nothing like what comes to the White House, obviously,

but I think the reason it comes at that level is because people are

giving those gifts.

I hope they are giving those gifts not to get favor or curry favor,

or to get influence and access, but they are giving them as sort of

a tribute. It seems to me that, therefore, you want to have at every

entry point an inventory method, but you need to get it to some

centralized place so that it can be reviewed.

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So—I mean, the White House clearly is going to have to—continue to have to play functions. The White House counsel is going

to have to play major functions under any system. It seems to me

that having some clarity as to what is expected is crucial.

Mr. HORN. Mr. Walden, your testimony spells out a series of internal controls that the White House should adopt to improve the

administration of Presidential gifts. Would you favor legislation

that simply requires the White House to institute and maintain

these controls?

Mr. WALDEN. Not at this time.

I think that there should be a very compelling showing before

Congress legislates the internal operations of the executive office of

the President. Although the record is replete with errors and mistakes made by the prior administration, I don’t believe that there

is enough of a factual predicate to demonstrate that this White

House should be saddled with a legislative requirement that those

reforms be done.

However, I think that Congress does have enough oversight authority to ensure that the White House does those reforms.

Mr. HORN. You also state that accountability problems over the

Presidential gifts stem in part from the lack of public disclosure

and transparency. Yet you also state that legislation on this subject

should not compromise legitimate privacy interests of the First

Family.

Mr. WALDEN. That’s right. I think this is just the price that the

public pays to respect—to give the Presidency just a modicum of

privacy that otherwise is stripped from the First Family upon election.

Mr. HORN. Do you believe H.R. 1081 goes too far in making gift

information available to the public?

Mr. WALDEN. Yes, I do. I don’t know whether it was the intent

of the bill to supersede FOIA, but the Freedom of Information Act

has an exception from disclosure for personnel, medical, or similar

records, the disclosure of which would clearly constitute an invasion of personal privacy—that’s 5 U.S.C. 552(b)(6)—and H.R. 1081

does not have any such limitation on the public disclosure of any

gift information.

Mr. HORN. Are there any other comments you would like to make

after you have heard your colleagues’ comments? I have lawyers

there, and they don’t want to go further?

Fine.

Well, here is my last question, Governor. I am concerned about

the ability of researchers and others to gain access to copies of emails within the custody of the National Archives. Is this a valid

concern? You know, we had all these e-mails floating around over

the last 2 years; and I must say that gave me a good idea that I

ought not have an e-mail. Because some of the silly things I saw

floating around the previous administration, just seemed to me

that it didn’t help the President, and I don’t think it helped the

country. It was just sort of, you know, a bunch of kids playing another bunch of kids.

I’m just curious, to what extent could the Archives deal with

that? I know we are putting a lot of things on you; but in a new

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era, if people are going to use e-mails and they are Government

documents, can the Archives handle it?

Mr. CARLIN. Well, I think we have little or no choice because email—those are records. The format, the medium does not determine whether they are a record, whether it is on paper parchment

or electronic. So our responsibility is just to deal with them as

records, treat them as we would regardless of the format.

Obviously, with the technology issue involved, it does make

things very complex, as we learned from the last administration

where we were dealing with 40 million e-mails. Now the challenge

of providing access to them—not to the public, because, by law, the

public at this point in the timeframe does not have access, but for

you folks and the courts, we are spending a lot of time and energy

locating and finding the specific e-mails to which there has been a

request for.

Mr. HORN. What procedures do you have now for providing copies? Can you—if someone under the Freedom of Information law

said, I would like to see the particulars, either personnel, Presidential personnel—I don’t know if that’s open. But what are the

rules for who can get access to e-mails that are in the custody of

the Archives?

Mr. CARLIN. It would be governed by the Presidential Records

Act, like any other records. So it would depend upon whether we

are in the first 5 years, the first 12 years, and all the exceptions

that have been a discussion point with this committee as it relates

to the act itself.

Mr. HORN. Well, this deserves, obviously, further time than we

have this morning, but I just wanted to see that, because we are

in a technological age and we need to handle it just like, as you

said, all the other things that people have written over the years.

Mr. CARLIN. Mr. Chairman, I take this opportunity to point out

that the even greater challenge for us at the Archives is to be able

to preserve these digital records over time, several generations of

technology later, and be able to produce electronically an authentic

record. That is the huge challenge that we are working with partners around the entire world to try to deal with, and we have confidence in the next few years we will be able to develop that capacity so that 50 or 100 years from now that digital record can be

pulled up authentically on a much later generation of technology.

Mr. HORN. Will you still have space for the gifts of the White

House?

Mr. CARLIN. Well——

Mr. HORN. Or is that pushing it out?

Mr. CARLIN. Space is an issue with gifts, and there are a lot of

complicated issues involved, not just the ones discussed here this

morning.

Mr. HORN. Well, I thank you for coming; and I thank the staff

that’s put this together: Russell George, our Staff Director and

Chief Counsel, right behind me; Bonnie Heald, the Deputy Staff Director, next to him; Henry Wray, right to my left, your right, and

he is the Senior Counsel for this session; and the majority Clerk

is Justin Paulhamus. Chris Barkley is a member of the subcommittee staff; Michael Sazonov, the same, intern; Sterling Bentley, intern; Freddie Ephraim, intern; Joe DiSilvio, intern.

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The minority staff: Michelle Ash, Professional Staff; Earley

Green, minority Clerk.

Other staffs were Barbara Kahlow, Deputy Staff Director for Mr.

Ose’s Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs; and we thank the court reporters, Mark Stuart and

Desirae Jura. We thank you for all your hard work.

With that, we are adjourned.

[Whereupon, at 12:07 p.m., the subcommittee was adjourned.]

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