Senate hearing (117th Congress), SAFEGUARDING INSPECTOR GENERAL INDEPENDENCE AND INTEGRITY (PDF)
Summary
The printed record of an October 21, 2021 hearing of the Senate Committee on Homeland Security and Governmental Affairs, S. Hrg. 117–513, titled Safeguarding Inspector General Independence and Integrity, chaired by Gary C. Peters. Opening statements come from Senators Peters, Portman, Carper, Johnson, Hassan, Lankford, Ossoff and Scott. Witnesses are Allison C. Lerner, Chair of the Council of the Inspectors General on Integrity and Efficiency and NSF Inspector General; Kevin H. Winters, Chair of the council's Integrity Committee and Amtrak Inspector General; and Michael E. Horowitz, Justice Department Inspector General and Chair of the Pandemic Response Accountability Committee. Peters says their views will help the committee finalize legislation on IG independence.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
S. Hrg. 117–513
SAFEGUARDING INSPECTOR GENERAL
INDEPENDENCE AND INTEGRITY
HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
OCTOBER 21, 2021
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
(
U.S. GOVERNMENT PUBLISHING OFFICE
47–980 PDF WASHINGTON : 2022
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
DAVID M. WEINBERG, Staff Director
ZACHARY I. SCHRAM, Chief Counsel
LENA C. CHANG, Director of Governmental Affairs
MATTHEW T. CORNELIUS, Senior Professional Staff Member
EMILY MANNA, Professional Staff Member
PAMELA THIESSEN, Minority Staff Director
ANDREW DOCKHAM, Minority Chief Counsel and Deputy Staff Director
WILLIAM H.W. MCKENNA, Minority Chief Investigator
LOREN TERRY, Minority Investigative Counsel
LAURA W. KILBRIDE, Chief Clerk
THOMAS J. SPINO, Hearing Clerk
(II)
CONTENTS
Opening statements: Page
Senator Peters .................................................................................................. 1
Senator Portman .............................................................................................. 3
Senator Carper ................................................................................................. 15
Senator Johnson ............................................................................................... 18
Senator Hassan ................................................................................................. 21
Senator Lankford .............................................................................................. 23
Senator Ossoff ................................................................................................... 26
Senator Scott ..................................................................................................... 28
Senator Padilla ................................................................................................. 31
Senator Rosen ................................................................................................... 33
Prepared statements:
Senator Peters .................................................................................................. 41
Senator Portman .............................................................................................. 43
WITNESSES
THURSDAY, OCTOBER 21, 2021
Hon. Allison C. Lerner, Chair, Council of the Inspectors General on Integrity
and Efficiency, and Inspector General, National Science Foundation ............. 4
Hon. Kevin H. Winters, Chair, Integrity Committee of the Council of the
Inspectors General on Integrity and Efficiency, and Inspector General, Na-
tional Railroad Passenger Corporation (commonly known as Amtrak) ........... 6
Hon. Michael E. Horowitz, Inspector General, Department of Justice, and
Chair, Pandemic Response Accountability Committee ..................................... 8
ALPHABETICAL LIST OF WITNESSES
Horowitz, Hon. Michael E.:
Testimony .......................................................................................................... 8
Prepared statement .......................................................................................... 59
Lerner, Hon. Allison C.:
Testimony .......................................................................................................... 4
Prepared statement .......................................................................................... 45
Winters, Hon. Kevin H.:
Testimony .......................................................................................................... 6
Prepared statement .......................................................................................... 53
APPENDIX
Additional statements for the Record: ...................................................................
NAAUSA statement ................................................................................................. 67
Responses to post-hearing questions for the Record:
Ms. Lerner ......................................................................................................... 69
Mr. Winters ....................................................................................................... 90
Mr. Horowitz ..................................................................................................... 239
(III)
SAFEGUARDING INSPECTOR GENERAL
INDEPENDENCE AND INTEGRITY
THURSDAY, OCTOBER 21, 2021
U.S. SENATE,
COMMITTEE ON HOMELAND SECURITY
AND GOVERNMENTAL AFFAIRS,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., via Webex
and in room SD–342, Dirksen Senate Office Building, Hon. Gary
Peters, Chairman of the Committee, presiding.
Present: Senators Peters, Carper, Hassan, Sinema, Rosen,
Padilla, Ossoff, Portman, Johnson, Lankford, Romney, Scott, and
Hawley.
OPENING STATEMENT OF CHAIRMAN PETERS1
Chairman PETERS. The Committee will come to order.
I want to first off thank each of our witnesses for being here
today and for your service to our nation each and every day. You
have extremely challenging jobs to ensure that government is
working effectively and efficiently for the American people. I look
forward to hearing from each of you on how this Committee can en-
sure the independence and the integrity of Inspectors General (IGs)
as you continue this work.
As current Federal watchdogs, your perspective will be critical in
helping us finalize legislation that will provide you and your col-
leagues with protections to strengthen independent oversight of the
government’s effectiveness.
This legislation is, quite frankly, long overdue. For decades, In-
spectors General have acted as independent, nonpartisan watch-
dogs tasked with helping Congress prevent and uncover fraud,
waste, and abuse in the Federal Government, and ensure taxpayer
dollars are being used appropriately.
The Council of the Inspectors General on Integrity and Effi-
ciency’s (CIGIE) recent annual report to Congress estimated that
Inspectors General saved American taxpayers more than $50 bil-
lion last year alone. It is absolutely vital that our Federal watch-
dogs are able to work independently and without the threat of po-
litical interference.
Current law allows for actions that threaten to undermine this
independence, including the removal of Inspectors General from of-
fice without sufficient explanation and the appointment of partisan
political operatives to serve in these traditionally nonpartisan
1 The prepared statement of Senator Peters appear in the Appendix on page 41.
(1)
2
roles. These actions, and others, have left Inspectors General, and
their critical work, vulnerable to political influence, and that is
simply unacceptable.
We must ensure that no administration is able to undercut the
independent transparency and accountability that Inspectors Gen-
eral provide to the American people. That is why Ranking Member
Portman and I are working together to enact the first significant
reforms to support Inspectors General in more than 13 years. I am
proud our bipartisan, bicameral effort enjoys broad support from
our colleagues and numerous good government groups.
I am grateful to Senators Grassley and Hassan, as well as U.S.
House Oversight Chairwoman Maloney, for helping us create these
reforms, which will require a more detailed explanation from the
President before removing an Inspector General, ensure that Act-
ing Inspectors General are selected from a pool of senior-level em-
ployees within the watchdog community, and provide Federal
watchdogs the authority to subpoena the testimony of contractors
and former Federal officials.
Through these common-sense solutions, this Committee has the
opportunity to consider and advance historic, meaningful reforms
that strengthen our democracy and promote independent oversight,
a goal I know we all share.
I look forward to discussing how we can best protect our Inspec-
tors General and swiftly pass these urgently needed reforms.
The Ranking Member is en route and will be here shortly, so I
will swear in the witnesses now.
It is the practice of this Committee to swear in witnesses, so if
you will each rise and raise your right hand.
Do you swear that the testimony you will give before this Com-
mittee will be the truth, the whole truth, and nothing but the
truth, so help you, God?
Ms. LERNER. I do.
Mr. WINTERS. I do.
Mr. HOROWITZ. I do.
Chairman PETERS. You may be seated.
Our first witness, Allison Lerner, is the Inspector General of the
National Science Foundation (NSF) and Chair of the Council of the
Inspectors General on Integrity and Efficiency. In her role, she rec-
ommends policies and leads efforts to prevent and detect fraud,
waste, and abuse; improves the integrity of the National Science
Foundation programs and operations; and investigates allegations
of misconduct in science.
Ms. Lerner has 30 years of Federal experience, initially starting
her career in the Office of Inspector General (OIG) at Commerce
as Assistant Counsel. In 2011, she was designated by President
Obama as a member of the Government Accountability and Trans-
parency (GAT) Board.
Welcome, Ms. Lerner. But before we hear your opening com-
ments I would like to recognize Ranking Member Portman for his
opening comments.
3
OPENING STATEMENT OF SENATOR PORTMAN1
Senator PORTMAN. Great. Thank you, Mr. Chairman, I appreciate
your indulgence, and thank you for convening this hearing today.
Inspectors General are essential to good government. I think ev-
erybody understands and agrees with that. Congress has a respon-
sibility, of course, to conduct oversight of the Executive Branch,
and that responsibility would be far more difficult without Inspec-
tors General. They are inside the agencies they oversee. They have
unique expertise in their agencies’ programs and budgets. I really
think they are Congress’ first line of defense against waste, fraud,
and abuse at those agencies.
According to the Council of Inspectors General on Integrity and
Efficiency—and we will hear from CIGIE today—in fiscal year (FY)
2020 alone, IGs’ work resulted in potential savings totaling $53 bil-
lion. That is a lot of waste, fraud, and abuse. We ask IGs to under-
take some of the most important and sensitive oversight work. For
example, I intend to offer an amendment today to our IG legisla-
tion we will consider next week to require the appropriate IGs to
review the Administration’s Afghan vetting policy. This review
would include multiple agencies, complex programs, and evolving
information. I think IGs are the best place to do that. They are in
the best position to conduct this type of nonpartisan expert review
needed to understand an important issue.
This Committee is responsible for protecting IG independence
and providing them with the authorities to do that kind of impor-
tant work. Since 1978, Congress has improved and reformed In-
spector General authorities many times. This includes legislation to
establish a total of 73 IGs across the Federal Government, bolster
IGs’ access to information and, of course, to protect whistleblowers.
These reforms represent steps in the right direction, but we think
more work is still needed.
I requested today’s hearing so the Committee can discuss this IG
legislation Senator Peters and I plan to consider at next week’s
business meeting, and I want the Chairman to know I appreciate
the fact that you have accommodated the request. I think this will
be positive for our legislation and for a general discussion about
the importance of IGs.
As noted, we have three very important members of the IG com-
munity in front of us here today: the Department of Justice (DOJ)
IG and former CIGIE Chair, Michael Horowitz, who all of us know;
National Science Foundation IG and current CIGIE Chair, Alison
Lerner; and Amtrak IG and CIGIE Integrity Committee (IC) Chair,
Kevin Winners.
To start, the legislation that we are going to be talking about
provides much-needed protections for Inspector General independ-
ence. Many have worked on this, including Senator Grassley. We
should notice his work. I will point out that the current law al-
ready requires the President to provide Congress the 30 days’ no-
tice before removing an IG. We do not change that. It does not in-
crease the time period.
It does, however, preserve the congressional intent and the inter-
est in understanding why that IG was removed by requiring the
1 The prepared statement of Senator Portman appears in the Appendix on page 43.
4
President to provide a substantive rationale for removing an IG.
Both President Obama and President Trump removed IGs and told
Congress they had lost confidence in their removed IG. I do not
think we should be satisfied with such a statement, no matter the
party of the President.
The legislation also remedies another problem that occurred dur-
ing the Obama and Trump administrations by requiring that acting
IGs be named from the Inspector General community. Both Presi-
dent Obama and President Trump named agency officials as acting
IGs, raising questions about the independence of those IGs. An
agency official cannot conduct independent oversight of his or her
own agencies and actions. Putting an agency official in charge of
its IG office also risks exposing whistleblowers and could show fu-
ture reports of waste, fraud, and abuse.
The legislation also provides testimonial subpoena authority for
IGs. This will allow IGs to complete interviews of important wit-
nesses, even if a person has resigned, to avoid participating in an
investigation. Unfortunately, that has been a common occurrence
within our system, according to IGs. Subpoena authority is a
weighty responsibility, though, which is why I have worked with
Senator Peters to ensure the bill does provide effective guardrails
and effective reporting to Congress.
Additionally, the bill incentivizes filling IG vacancies. Installing
permanent IGs is important. They provide more independence and
continuity than acting IGs. This May, I sent a letter to President
Biden, with the Chairman, and many of this Committee’s Members
urging him to fill the 13 vacant Senate-confirmed IG positions. I
am pleased to see that the President has taken our advice seriously
and nominated individuals to fill a number of those vacancies, but
all those vacancies need to be filled.
Finally, the legislation provides measures to improve oversight of
the IGs themselves, such as requiring that CIGIE report to Con-
gress when it becomes aware of a particularly serious problem at
an IG office. I know all three of these distinguished witnesses have
much to give us today in terms of their input. They have given us
a lot of thought. They understand the need for these proposals for
change. I thank each of them for their service and for taking the
time to appear before us today and I look forward to your testi-
mony.
Chairman PETERS. Thank you, Ranking Member Portman.
Ms. Lerner, you may proceed with your opening comments.
TESTIMONY OF THE HONORABLE ALLISON C. LERNER,1
CHAIR, COUNCIL OF THE INSPECTORS GENERAL ON INTEG-
RITY AND EFFICIENCY
Ms. LERNER. Thank you. Chairman Peters, Ranking Member
Portman, and distinguished Members of the Committee, thank you
for inviting me to appear before you today in my role as Chair-
person of the Council of in the Inspectors General on Integrity and
Efficiency.
Despite the tumult caused by the Coronavirus Disease 2019
(COVID–19) pandemic, our community has remained focused on its
1 The prepared statement of Ms. Lerner appears in the Appendix on page 45.
5
vital mission: providing impartial and nonpartisan oversight and
transparency into some of the most difficult problems facing the
agencies we oversee. Altogether, our work in 2020, as has been
noted, resulted in potential savings totaling approximately $53 bil-
lion, a $17 return on every dollar invested in IG oversight. For ac-
complishments like this to continue and expand, action is nec-
essary.
Each Congress, the CIGIE Legislation Committee presents the
community’s critical reform proposals to strengthen government
oversight or resolve challenges that IGs face under current law.
This session, our legislative priorities strongly focus on enhancing
Inspector General independence, the institutional independence of
OIGs, and enhancing OIG oversight. Today I want to highlight
some of these initiatives, which are part of H.R. 2662 IG Independ-
ence and Empowerment Act, and included in the Peters/Portman
substitute amendment.
First, as I noted, it is imperative that Congress take steps to pro-
tect the institutional independence of Inspectors General. To be ef-
fective, IGs have to be independent in both mind and appearance,
and being independent is no less important for individuals tempo-
rarily serving as head of an OIG. The IG community urges Con-
gress to amendment the Federal Vacancies Reform Act to prevent
the appointment of an acting IG that calls into question the inde-
pendence of the office.
Currently, a President can fill a Presidentially appointed Senate-
confirmed (PAS) IG vacancy with a political appointee or a senior
official from the agency the IG oversees. Such appointments, which
have occurred under both Democratic and Republican administra-
tions, create actual and perceived conflicts of interest that under-
mine the IG’s independence and stakeholders’ confidence in its
work; discharge whistleblowers from coming to the IG with evi-
dence of fraud, waste, and abuse; and create a disincentive for the
President to appoint a permanent IG.
The proposed change would have the First Assistant of the In-
spector General serve during a vacancy but allow the President to
designate another IG or senior OIG official to fill the vacancy. This
reform would provide an acting IG with the independence nec-
essary to maintain the public’s trust and widen the pool of profes-
sional oversight officials the President may direct to serve as an
acting IG.
This legislation, together with an additional provision requiring
notification to Congress when an IG is placed on non-duty status,
will greatly improve IG independence. We appreciate that these
safeguards are part of the Peters/Portman substitute amendment.
Second, Congress must strengthen oversight tools available to
OIGs. The IG community, with bipartisan support from this Com-
mittee since at least 2015, has long sought testimonial subpoena
authority, an essential tool for IGs to be able to conduct com-
prehensive oversight. Because most IGs lack this authority, they
cannot obtain potentially critical evidence related to alleged wrong-
doing from certain individuals unless they voluntarily agree to be
interviewed. The fact that we cannot require these interviews un-
dermines our ability to complete investigations and hold individ-
6
uals accountable for their misconduct, thereby diminishing the
public’s trust in government.
We are committed to providing technical assistance to develop
controls to ensure the effective and appropriate use of this new au-
thority. We want to express our appreciation to Chairman Peters
and Ranking Member Portman, as well as Senators Grassley and
Hassan, for including this authority in the substitute amendment
and otherwise working diligently with the IG community on this
needed authority.
Finally, we also support the Committee and Members’ efforts to
reform OIG semiannual reports by leveraging public information
and resources such as oversight.gov, requiring OIG employees to be
informed about their whistleblower rights and protections, making
needed change to support CIGIE’s Integrity Committee, and replac-
ing the current indirect process for funding CIGIE with the direct
authorization of an appropriation that affords transparency but
does not require additional funding from taxpayers.
In closing, I would like to thank all Members and staff of this
Committee for your strong, bipartisan support for our community
and for the seriousness with which you take our mission. I look for-
ward to working closely with you all to ensure that Inspectors Gen-
eral continue to be empowered to provide the independent, non-
partisan oversight our agencies, Congress, and the American public
so richly deserve.
This concludes my statement, and I am happy to answer any
questions.
Chairman PETERS. Thank you, Ms. Lerner.
Our next witness is Kevin Winters, Inspector General of the Na-
tional Railroad Passenger Corporation (AMTRAK) and Integrity
Committee Chair, Council of the Inspectors General on Integrity
and Efficiency.
Mr. Winters brings a wealth of experience, formerly serving as
a senior executive with National Aeronautics and Space Adminis-
tration (NASA’s) Office of Inspector General from 2005 through
2015. As NASA’s Assistant Inspector General for Investigations,
his staff of special agents, investigative auditors, and computer fo-
rensic examiners focused on allegations of fraud, waste, and abuse
affecting NASA’s programs.
Mr. Winters also served in the United States Marine Corps
(USMC), eventually retiring as a Brigadier General. Subsequently,
he held several domestic and overseas assignments, including du-
ties as a prosecutor and defense counsel.
Welcome, Mr. Winters, and thank you for your service.
You may proceed with your opening remarks.
TESTIMONY OF THE HONORABLE KEVIN H. WINTERS,1 CHAIR,
INTEGRITY COMMITTEE, COUNCIL OF THE INSPECTORS
GENERAL ON INTEGRITY AND EFFICIENCY
Mr. WINTERS. Thank you, Mr. Chairman, Ranking Member, and
thank you for the opportunity to testify about the important work
of CIGIE’s Integrity Committee. As you mentioned, I currently
serve as Amtrak’s Inspector General, and I have been a member
1 The prepared statement of Mr. Winters appear in the Appendix on page 53.
7
of the IG community for the past 15 years, to include, as you said,
service at NASA, as the Assistant Inspector General for Investiga-
tions.
In 2019, the then-CIGIE chair, Michael Horowitz, appointed me
to be an IC member. In 2020, the IC membership elected me to
serve as the chairperson for a 2-year term.
My testimony today will focus on three topics. First, an overview
of the IC’s mission and structure—IC is short for the Integrity
Committee, by the way. Second, an insight into our workload, rec-
ognizing that we cannot discuss ongoing matters. Third, our chal-
lenges, which present opportunities for improvement.
By law, IGs have daunting oversight responsibilities over agen-
cies, programs, and operations. Amtrak’s, for example, includes a
24/7 nationwide rail service to 46 States and three Canadian prov-
inces and employs 17,000 people. As their IG, Congress entrusted
me with tremendous oversight resources, such as powers to audit,
to investigate, unfettered access to information, subpoena power,
and law enforcement authority. These tremendous powers, by the
way, are typical of IGs across the Federal IG community.
To check this tremendous power, Congress, in my view, wisely
established the Integrity Committee to ensure that senior IG offi-
cials, currently about 468 of them, perform their duties with integ-
rity and apply the same standards of conduct and accountability to
themselves as they apply it to the agencies that they audit and in-
vestigate. The IC’s mission, therefore, is to receive, review, and
refer for investigations allegations of wrongdoing made against an
Inspector General or certain senior members of an IG’s office.
By statute, the Integrity Committee is composed of six members.
Four are serving IGs. Two are Presidentially appointed. The other
two are from designated Federal entities. There are two other vot-
ing members, a senior official from the Federal Bureau of Inves-
tigation (FBI) and the Director of the Office of Government Ethics,
or designee, and there is a small CIGIE staff, primarily lawyers,
to assist the Integrity Committee, and the Public Integrity Section
of the Department of Justice also serves as a legal advisor.
This self-policing of the IG community is a solemn responsibility
that requires the Integrity Committee to be vigilant, independent,
objective, nonpartisan, and appropriately transparent to maintain
the trust of our key stakeholders, which are the public, Congress,
whistleblowers and witnesses, and those within our investigative
jurisdiction. While there is always room for improvement, the In-
tegrity Committee and its support staff work diligently to uphold
this serious responsibility.
Fiscal year 2021 saw a dramatic jump in communications to the
Integrity Committee. In 2020, for example, we received 1,152. This
year, 3,917. We also saw an increase in complexity and severity of
the incoming complaints. We met 19 times in fiscal year 2021,
opened 65 cases for review, which involved 30 different agencies.
We completed three investigations which were submitted then for
appropriate action to appointed authorities and relevant congres-
sional committees. We also initiated four investigations. As of this
hearing, the IC has nine investigations pending completion.
As someone who has spent my professional life in service to our
country, both in peace and war, I recognize how fortunate we are
8
to have a system of government built on adherence to the rule of
law and with checks and balances, which includes independent In-
spectors General who help ensure the effectiveness of their agen-
cies.
I support H.R. 2662. I am thankful for your interest in the efforts
of the Integrity Committee to serve as a credible and trusted check
on the tremendous powers entrusted to senior members of the IG
community, and I look forward to your questions, recognizing, of
course, that we cannot discuss ongoing and open matters. Thank
you.
Chairman PETERS. Thank you, Mr. Winters.
Our final witness is Michael Horowitz, Inspector General for the
Department of Justice. In his role, Mr. Horowitz oversees a nation-
wide workforce of more than 500 special agents, auditors, inspec-
tors, attorneys, and support staff, whose mission is to detect and
deter waste, fraud, and abuse. He also serves as the Chair of the
Council of the Inspectors General on Integrity and Efficiency, an
organization comprised of all 75 Federal Inspectors General.
Since the start of the pandemic, he has simultaneously led the
Pandemic Response Accountability Committee (PRAC), a com-
mittee of 22 Federal Inspectors General that oversee the Federal
pandemic-related emergency spending.
Mr. Horowitz, good to see you again. You may proceed with your
opening.
TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ,1
INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. HOROWITZ. Thank you, Chairman Peters. Good to be here
again, and thank you, Ranking Member Portman, and members of
the Committee.
Each year, as was noted, independent oversight work by IGs re-
sults in billions of dollars in recoveries and savings for the tax-
payers. The bipartisan Inspector General Independence and Em-
powerment Act of 2021 will allow the IG community to build on
that success and further protect the public we serve from waste,
fraud, abuse, and mismanagement.
I want to address two provisions that are particularly important
to my office at the DOJ—expanding my office’s jurisdiction to in-
clude professional misconduct by DOJ attorneys, and providing IGs
with testimonial subpoena authority.
Granting my office authority to investigate alleged professional
misconduct by DOJ attorneys has received broad bipartisan sup-
port over successive Congresses, because it promotes independent
oversight, transparency, and accountability within DOJ for all of
its employees, including Department prosecutors.
I am the only Inspector General in the Federal Government that
does not have the authority to investigate all alleged misconduct,
including professional misconduct by agency attorneys. There is no
principled basis, in my view, for granting my office oversight over
DOJ law enforcement personnel, such as FBI agents, while exclud-
ing DOJ lawyers from that same OIG oversight. Providing my of-
fice with such jurisdiction would enhance the public’s confidence in
1 The prepared statement of Mr. Horowitz appear in the Appendix on page 59.
9
the outcomes of these investigations and provide the OIG with the
same authority as every other IG.
The importance of a statutorily independent office within DOJ to
oversee allegations of misconduct by DOJ lawyers was even recog-
nized recently by the National Association of Assistant U.S. Attor-
neys (NAAUSA) in a recent opinion piece. While that organization
disagreed with me that such oversight should be done by my office
and instead proposed that the head of the Department’s Office of
Professional Responsibility (OPR) become a Senate-confirmed posi-
tion, we both agree that independence is necessary to promote pub-
lic confidence in investigations of department lawyers.
Congress has already created such a statutorily independent en-
tity within DOJ that has a demonstrated ability to conduct such
oversight, namely the DOJ OIG. We employ dozens of attorneys,
whose backgrounds and experiences are similar to the lawyers in
the DOJ OPR, including former prosecutors and Department attor-
neys specializing in attorney ethics. This group of my attorneys at
the Department of Justice OIG led our review of the Foreign Intel-
ligence Surveillance Act (FISA) abuse allegations, the Clinton
email and Comey memos investigations, and our overview of Bu-
reau of Alcohol, Tobacco, Firearms and Explosives’ (ATF’s) Oper-
ation Fast and Furious, as well as other sensitive and complex
matters.
Further, the OIG would ensure that the process for reviewing at-
torney misconduct allegations is identical to the OIG system that
currently exists across the Department of Justice for non-attorney
misconduct allegations. For decades, the OIG has coordinated effec-
tively with the DOJ law enforcement components. Indeed, the dis-
ciplinary processes at the FBI and Drug Enforcement Administra-
tion (DEA) have substantially improved since the OIG obtained
oversight authority over those components in 2002.
These same transparency and accountability mechanisms should
apply to DOJ attorneys, and that is why I believe the public would
be well served by adopting this legislative change.
Let me turn briefly to testimonial subpoena authority, which I
also strongly support. The absence of such authority hinders our
ability to potentially obtain critical evidence from former employ-
ees, employees of Federal contractors and grant recipients, and
other non-government witnesses in investigations involving fraud,
waste, abuse, and misconduct.
Recently, Congress granted this authority to CIGIE’s Pandemic
Response Accountability Committee as it had previously done with
the Recovery Accountability and Transparency Board in 2009. Fur-
ther, the DOD IG was granted this authority by Congress in 2009,
and it has used it appropriately and sparingly.
My office has numerous examples in high-profile and not-so-high-
profile investigations and reviews where the lack of such authority
has undermined our oversight efforts. For example, in our recent
review of the FBI’s handling of the Nassar investigation, the USA
Gymnastics former president refused a voluntary follow-up inter-
view with my office after we had learned additional information
about an alleged potential conflict of interest involving a former
FBI Special Agent in Charge (SAC). This inability in numerous
cases to hold accountable former officials for serious misconduct di-
10
minishes the public’s trust in the government and harms the tax-
payers.
Importantly, your legislation includes several appropriate and
important safeguards which I fully support, including allowing the
Attorney General (AG) an opportunity to object to the issuance of
a subpoena and an IG panel to oversee the issuance of such sub-
poenas. I hope the Committee moves this legislation forward.
In conclusion, thank you for your leadership and this Commit-
tee’s leadership in supporting our independent oversight efforts,
and I look forward to the Committee’s questions.
Chairman PETERS. Thank you, Mr. Horowitz.
Inspector General independence clearly is vital to our democracy,
and Congress must take every effort to ensure your independence
is not undermining. That includes providing oversight when an IG
is removed from office. Legislation that we are working on, working
on with Ranking Member Portman, includes an enhance, 30-day
notification requirement for the President to provide a detailed rea-
son for removing an IG, which gives Congress the time to delib-
erate whether the removal is appropriate and warranted.
Ms. Lerner, I know you mentioned this in your opening com-
ments. If you would like to elaborate we would love to hear, and
then I would love to hear from the other two witnesses on your
thoughts on this requirement. Ms. Lerner.
Ms. LERNER. Thank you. We appreciate the proposed amendment
and the greater clarity that would come from a more in-depth
statement than the simple fact that President has lost confidence
in an IG. As you note, that gives Congress, in particular, greater
insight and makes it much more likely that they will be able to
conduct appropriate oversight. We hope that it will also prevent sit-
uations where IGs are removed for purely political reasons when
it is clear that the President has to articulate a legitimate reason
for that removal. This also bolsters, we believe, these reporting re-
quirements, the notice requirements that already exist that relate
to removing an Inspector General.
Chairman PETERS. Thank you. Mr. Winters, your thoughts?
Mr. WINTERS. I agree with Ms. Lerner’s assessment.
Chairman PETERS. Mr. Horowitz.
Mr. HOROWITZ. Mr. Chairman, the enhanced requirement, be-
cause IG positions are different, the need for independence allows
Congress to better understand the reasons for the removal, but
most importantly, frankly, it allows the public to understand the
reasons for the removal. We are there to protect the public and the
public fisc and the taxpayers, and so they should know the real
reason and the actual reason why IG was removed.
Chairman PETERS. Thank you. I am going to start and ask this
question to Mr. Winters but I want to hear from our other two wit-
nesses as well. Under current Federal vacancy law, nothing pre-
vents the President from appointing an acting IG who is not quali-
fied or who has a conflict of interest. In the event of a vacancy, why
is it is important to limit who can serve as an acting IG to individ-
uals who already serve in the IG community? Mr. Winters.
Mr. WINTERS. From my perspective it gets down to independence
and confidence in doing Federal oversight work. To take someone
from the IG community to serve in that role, I think, is a real ben-
11
efit to the Nation and the agency rather than, for example, some-
one who comes with a political perspective from their own agency.
Chairman PETERS. Mr. Horowitz.
Mr. HOROWITZ. Mr. Chairman, the Government Accountability
Office (GAO) issued a report last year, and the Comptroller Gen-
eral spoke to this problem, which is the inherent clear conflict that
exists. It is wholly inconsistent with the IG Act, because as you and
Ranking Member Portman indicated, to have overseeing the agen-
cy, and a senior official from that agency, whether they are a polit-
ical appointee or not, there cannot be that level of confidence and
trust from the public that it is truly independent oversight, and it
also creates issues for whistleblowers. Why would a whistleblower
go to an agency to complain about senior officials’ misconduct if
they knew that IG office was overseen by a senior official, who
would know their identity and, of course, as we have seen as IGs,
the threat of retaliation, the fear of retaliation is with good reason,
because we have seen whistleblowers retaliated against.
Chairman PETERS. Thank you. Ms. Lerner.
Ms. LERNER. The IG Act requires that Inspectors General be ap-
pointed without regard to political affiliation and based solely on
integrity and their demonstrated excellence in certain specific dis-
ciplines. That is important because IGs are in their positions to
lead independent and objective units, focused on the IG’s twofold
mission of preventing and detecting fraud, waste, and abuse, and
promoting an economy and efficiency.
The purpose those requirements is completely undermined if an
acting IG, who is either a political appointee or in the agency being
overseen, is asked to run an Iinspector General’s office.
Chairman PETERS. Thank you. Mr. Horowitz, you cited the OIG’s
lack of testimonial subpoena authority as a reason why individuals
with potentially relevant information to an investigation were able
to ignore questions from the office. You cited the Nassar example,
which unfortunately I am all too familiar with, being from the
State of Michigan.
Mr. Horowitz, how would testimonial subpoena authority im-
prove the work of the Inspector General?
Mr. HOROWITZ. I think it would be an extremely important
change and helpful to us in a wide range of our work. It is easy
for me. I can cite example after example in our high-profile cases,
but it happens very frequently in our not-so-high-profile cases,
where individuals simply refuse to appear, or we have had occa-
sions where people have resigned a few hours before a compelled
interview, precisely because they wanted to avoid speaking to us.
We have had two examples like that in the last couple of years.
Whistleblower cases, we have had it both within FBI, where a
former senior official would not speak to us about alleged retalia-
tion, and we had it with a contractor, where a contractor claimed
that their employer, the contractee claimed that their employer had
ripped off the U.S. Marshal’s Service. We tried to speak to their su-
pervisor, who had left the contractor. We could not. Those are the
kinds of problems we face.
Chairman PETERS. Ms. Lerner, you testified that Inspector Gen-
eral oversight can be substantially hampered by the inability to
compel the testimony of witnesses who have information that can-
12
not be obtained by any other means. A few agency IGs, including
the DOD IG already have testimonial subpoena authority, and at
least as I understand it that power has so far been used judiciously
and sparingly, and simply having the authority means the IGs
often rarely have to use it.
How can we ensure that testimonial subpoena authority is not
abused?
Ms. LERNER. I think, at a minimum, we start by applying the
same standards we use for our documentary subpoenas and we
build on that. In my office, for a documentary subpoena to be
issued there are six sets of eyes that go one it—three investigators,
two attorneys, and then me—and our focus and attention has
added a great deal of value there, and in the 30 years of our exist-
ence we have never had a subpoena enforced.
We are not alone. Other IGs have this. We build on those proce-
dures. We add additional controls that are appropriate for the
stepped-up risk associated with testimonial subpoena authority,
and then, obviously, we comply with the additional controls that
you all are considering that would require notice to the Attorney
General and transparency about the use of this authority through
IG semiannual reports and reporting from CIGIE. So we are com-
mitted to working with you all to ensure that those protections are
in place.
Mr. WINTERS. Mr. Chairman, may I add something on testi-
monial subpoena authority?
Chairman PETERS. Absolutely.
Mr. WINTERS. From the Integrity Committee’s perspective, where
we have oversight over senior Inspector General personnel, to in-
clude Inspectors General, this would be a great tool for us as well,
because like Michael Horowitz testified, we have individuals that
leave government but we have the authority and the public interest
to investigate them, even after they leave. But if they refuse to tes-
tify or to answer our calls then our investigations are somewhat
pointless.
To Ms. Lerner’s point, in terms of how the Transportation Secu-
rity Administration (TSA) is checked, the Integrity Committee
serves as a check on abuses of testimonial subpoena authority as
well.
Chairman PETERS. Great. Thank you. We are in the midst of
votes, is why you are seeing our Members come and go, so I need
to vote myself. I will turn the gavel over to Senator Hassan and
recognize Ranking Member Portman for his questions.
Senator PORTMAN. Thank you, Mr. Chairman. First of all, thank
you all for being here and for the testimony you have already pro-
vided. It is very helpful. The 30-day notice period and the provi-
sions that we want to include within that so that there is some ra-
tionale that Congress and the American people can understand is
really important. The testimonial subpoena, we put guardrails in
place for a reason, because we think this is a power that could be
abused, and we want to make sure it is not.
In that area there is some discussion of putting a sunset on it.
I understand if it is a sunset that is very short that it would be
hard for it to work operationally. It takes a while to get this proc-
ess up and going. But what about a sunset of four, or five, or six
13
years for the testimonial subpoenas? How would you feel about
that? Anyone, feel free to chime in.
Ms. LERNER. I will start. Congress always has the ability to re-
voke an authority that it has granted. Our concern with the sunset
provision is that it is a blunt instrument. Our preference would be
to have a requirement to have the use of these authorities reviewed
byv an independent entity like CIGIE or GAO, and allow the re-
sults of that review to inform Congress’ decision about whether to
continue or to revoke this authority.
But if a sunset date is necessary, and we understand that that
is important for some members, we would ask that the period be
long enough to enable us to have sufficient numbers of examples
to make the case for the use of the authority, since, in many in-
stances, the mere fact that a testimonial subpoena authority could
be issued is enough to ensure an individual’s compliance with an
interview.
So we would prefer, a 10-year period before sunsetting, and then
that is in no small part because of the amount of time that it has
taken us to obtain this authority in the first place. It has taken us
10 years with congressional support to get this far, and we are wor-
ried that we could, with a hard and fast sunset, lose that authority
and have great difficulty getting it reauthorized.
Senator PORTMAN. I do think it is important, also, the guardrails
we have placed on it, and we will have further discussions about
that, because I think this is an important issue for us to try to re-
solve today, as we go into markup in the next couple of weeks on
this legislation.
It is incredibly important that you all have independence, and,
we rely on you to conduct some of the most sensitive and important
investigations in government, because we believe you are uniquely
qualified to be able to do it. I mentioned earlier you have the exper-
tise. You have also got the nonpartisanship, and IGs need to be be-
yond reproach.
I am going to ask a few questions about one such sensitive and
important investigation by your office, Mr. Horowitz, and this is a
sensitive topic, I know, but I think it is one that is important for
us to talk about today, as we have the leadership of the IG commu-
nity before us. That is about the investigation of former FBI Dep-
uty Director Andrew McCabe.
Mr. McCabe, as you know, was fired for lacking candor under
oath in 2018, shortly before his retirement. Late last week, DOJ re-
versed its course, settling a lawsuit by Mr. McCabe to restore his
employment as a voluntary separation, and to restore his pension.
Mr. Horowitz, could you briefly remind us of the findings of your
report regarding Mr. McCabe?
Mr. HOROWITZ. Certainly, Senator. The report concerned an in-
vestigation that actually the FBI had initially undertaken involving
alleged leaks about information that was potentially damaging to
Secretary Clinton during the 2016 Presidential campaign. The FBI
internal investigators developed information that led them to be-
lieve that Deputy Director McCabe may have lied to them.
They then referred the matter to us——
Senator PORTMAN. Right.
14
Mr. HOROWITZ [continuing]. Then the position he held at the
FBI. We assumed the investigation and concluded, in a public re-
port that remains on our website and the public can see, that Mr.
McCabe lied both under oath and not under oath, on several occa-
sions, when he denied, at various points, certain key facts and in-
formation, including who was the source of the leak.
Senator PORTMAN. OK. It is my understanding that following
that report, which sounds like it was a pretty definitive report, the
top career official at the Department of Justice as well as the ca-
reer head of the Office of Professional Responsibility at DOJ both
recommended that Mr. McCabe be fired. Is that correct?
Mr. HOROWITZ. That is certainly correct, I know, as to the FBI’s
Office of Professional Responsibility head, who as you indicated is
a career employee and actually is a former prosecutor. They adju-
dicate, in the first instance, our findings, so our report goes to
them. They decide whether they agree with us. They agreed with
us on almost all, but actually not all of our findings, so they made
their own independent call that, in fact, he lied on multiple occa-
sions, but they did not fully find everything we found.
Because of Deputy Director McCabe’s position there is a different
process for him. It went to the Attorney General for review, then-
Attorney General Sessions, and this I do not have complete insight
to, but my understanding is that the Attorney General asked a ca-
reer official in the Office of the Deputy Attorney General to handle
the review, and that that person recommended removal, as well.
Senator PORTMAN. The senior career person agreed with your
finding that the removal was appropriate——
Mr. HOROWITZ. That is my understanding.
Senator PORTMAN [continuing]. Should be a firing. Is that con-
sistent with how the Department of Justice and the Office of Pro-
fessional Responsibility has handled these sorts of cases in the
past?
Mr. HOROWITZ. That is my understanding as well.
Senator PORTMAN. OK. Was your report influenced by President
Trump or anyone in the Trump administration, any political con-
siderations?
Mr. HOROWITZ. Absolutely none.
Senator PORTMAN. Did the settlement change any of the findings
in your report?
Mr. HOROWITZ. It did not. We actually were not sued by Mr.
McCabe, so we were not a party to the settlement. Our findings re-
main on our website. We stand by our findings. The public can
read them. They can go to our website. By the way, the FBI issued
a statement stating that they stand by their findings as well, of
their OPR, and their conclusions.
Senator PORTMAN. How did this happen, and what kind of mes-
sage does this send to FBI agents that a former Deputy Director
was not held accountable for misrepresenting facts under oath?
Mr. HOROWITZ. I think, as an IG, that it is critical that individ-
uals be held accountable for their wrongdoing, no matter what level
they are at in an organization, and that it is particular incumbent
upon us to hold accountable senior officials the same way we hold
accountable less senior officials and newer officials.
15
Senator PORTMAN. Do you view this as a double standard, Mr.
Horowitz?
Mr. HOROWITZ. I cannot speak to, Senator, the decision of the
Department and what evidence they saw in the adjudication, so I
am not going to speak specifically to why they settled or how they
settled, because I was not a party to that settlement. It is very im-
portant—and this is why I think the FBI issued their statement as
well—it is very important for employees to understand that we will
hold them, at the OIG, accountable, regardless of their position or
standing.
Senator PORTMAN. Mr. Horowitz, you were appointed by Presi-
dent Obama. Is that correct?
Mr. HOROWITZ. That is correct.
Senator PORTMAN. How important is your independence as an IG
to your ability to make comments like the ones you just made
today?
Mr. HOROWITZ. It is central to what we do. In other countries
people in my position cannot do that, for fear of being fired, re-
moved, or, frankly, even things worse happening. I have an oppor-
tunity to meet, as CIGIE chair, or had an opportunity to meet, as
CIGIE chair, with delegations from foreign countries, and it struck
me how many times those officials wanted to know what we did
and how we did it, because in their countries they might get killed
if they did the same kind of work we do.
Senator PORTMAN. My time has expired, but it goes to the impor-
tance of the testimony you all are providing today, the legislation
we are considering, and the interest in maintaining the independ-
ence of the IGs in our system of government. Thank you.
Senator HASSAN. [Presiding.] Thank you, Senator Portman.
Senator Carper, are you available? I see you pulling up your
chair. Senator Carper is joining us virtually.
Senator Carper, are you ready to be recognized? I think he is
coming.
Senator Carper, you are recognized for your questions, if you are
ready.
OPENING STATEMENT OF SENATOR CARPER
Senator CARPER. I am ready. My first question pertains to our
legislation that Senator Braun and I introduced called the Keep the
Watchdogs Running Act. That is a good title, is it not? But the leg-
islation would give the Office of the Inspector General authority to
continue oversight of agency operations in the event of a govern-
ment shutdown, to the extent that certain agencies continued to op-
erate. If we have a government shutdown somewhere down the
line, there is going to be some agencies that will not shut down and
will continue to operate, and we want to make sure that that these
Inspectors General keep operating too, to keep in line things there.
Mr. Horowitz, nice to see you again. Ms. Lerner, Mr. Winters.
Can each of you take a moment to discuss the importance, please,
of ensuring that essential oversight work continues, even during a
government shutdown? As much as we hope we never have another
one, we probably will. So that is my question, and it pertains to
our legislation, bipartisan legislation that Senator Braun and I
have introduced.
16
Go ahead. Mr. Horowitz, why don’t you go first.
Mr. HOROWITZ. Thank you, Senator. I am happy to do so, and I
agree with you completely about the importance of keeping things
running even in the event of a government shutdown.
We have been appreciative of the fact that our appropriators on
the CGI Subcommittee have given us authority to carry over up to
$4 million in funding, and that, in part, helps us continue running
if there is a government shutdown. But, of course, it is a very lim-
ited period of time that it would allow us to continue operations.
When the government shuts down, the grants that were given
out, the contracts that were given out by the government, all of
that work continues, or at least all of those monies continue to
flow. At the Justice Department, agents continue to work. Lawyers
continue to work, assuming the courts are not shut down. There is
oversight work to be done, and it should not be the case that the
overseers are shut down while the money continues to flow. I think
that we would be able to continue our work.
Senator CARPER. Same question, if I could, for Ms. Lerner, Ms.
Lerner and Mr. Winters. Just very briefly, your comments, please.
Ms. LERNER. What I would just note, expanding on what Mr.
Horowitz indicated, is, it is wonderful that IGs have independent
appropriations, but a downside of that is it limits our ability to con-
tinue working in a shutdown situation. Like him, I am lucky
enough to have some carryover funding, and that could enable me
to keep my folks working for about a week, but my agency, with
its many different appropriations, has much greater flexibility and
latitude to keep staff working, potentially, and we would not be
able to oversee them. I know we are not alone at NSF OIG in that
situation. This authority would be of value, not just to us but to
the whole IG community, in situations where we face a government
shutdown.
Senator CARPER. Thanks, Ms. Lerner.
Mr. WINTERS. Very briefly, from Amtrak’s perspective, the trains
continue to run during a government shutdown, and as you have
seen in the newspapers, this is a very important national function
to run a railroad, but there are safety considerations at bay. So to
shut down an Office of Inspector General while the trains are run-
ning is inconsistent, in my view, with good government.
Senator CARPER. Yes, great point. Thank you, sir. As a frequent
rider of Amtrak I say thank you, sir. Next question is pertaining
to political interference, and this would be a question for all of you.
I will start off, if we could, with Mr. Winters, with you on this. You
can be our leadoff here.
The Inspector General’s Act of, I think it was 1978, established
the Offices of the Inspector General at 12 Federal agencies. It de-
scribed those offices as—here is the quote, I think out of line—inde-
pendent and objective units that are charged with investigating
waste, investigating fraud, abuse, and promoting much-needed ac-
countability.
As a former Commander in the U.S. Navy, as this Committee
considers legislative reforms to the IG Act that would strengthen
the independence and integrity of the Inspector General across
Federal agencies, could each of you share what you believe is the
most important reform that we, in the Congress, may want to con-
17
sider, given lessons learned under previous administrations? Most
important reform that we, in Congress, may want to consider.
Mr. Winters, why don’t you lead us off, please.
Mr. WINTERS. In terms of the present bill, the reforms in there,
I think the vacancies and the replacement of IGs that are leaving
government from—pick a reason, but for example, if the President
removes an IG, I think that is a critical juncture in terms of mak-
ing sure that there is appropriate reform, to ensure that the next
IG going in is truly independent.
The other matters in the bill are equally important, but that is
the one, to me, that strikes me as the most important.
Senator CARPER. Great. Thank you, sir. Ms. Lerner, what would
you is maybe the most important provision?
Ms. LERNER. I have to double down on Mr. Winters’ statement
about the importance of ensuring that acting IGs have the inde-
pendence that they need to do their work. When you look at the
number of vacancies that we have had over the last five years, and
the lengths of those vacancies, you find acting officials in positions
for years. It is essential if the work of the office is to continue and
to provide value to Congress and the American public that you
have someone who had lead that work and whose independence
will not be questioned.
Senator CARPER. Great. Thanks, Ms. Lerner. Mr. Horowitz, same
question, most important reform that we, in the Congress, may
want to consider in this regard?
Mr. HOROWITZ. Thank you, Senator. I think the Vacancies Act
piece is the most important, for the reasons previously indicated by
Mr. Winters and Ms. Lerner. I will just add, on the testimonial
subpoena authority, I think that is critical from the public stand-
point, in particular. I think it is very hard to be in a position where
we are being asked to investigate alleged wrongdoing, but like oc-
curred in, for example, the Nassar matter, and then when the pub-
lic wants to know the answer to what happened, we, unfortunately,
often have to give the answer, ‘‘We are not sure.’’ We do not know,
because the employee has left, quit, the contractor who has alleg-
edly retaliated will not talk to us. That leaves significant dis-
satisfaction, and creates a question for the public about the value
of our work if we cannot answer the most basic questions because
we cannot get the evidence we need.
Senator CARPER. Good. Madam Chair—I am not sure who is
chairing right now——
Senator HASSAN. I am chairing, Senator, so thank you.
Senator CARPER. I have one short question, but I would like
them to answer it on the record, but I would like to, if I could, to
take 20 seconds to just——
Senator HASSAN. All right. Take 20 seconds and then we will
move on.
Senator CARPER. According to the Council of Inspectors General
on Integrity and Efficiency, 14 Inspectors General positions remain
vacant, 14. President Biden has nominated eight. Could each of you
please, for the record, take some time to discuss ways to incentivize
well-qualified individuals to consider serving as IGs? Additionally,
what do you believe are the essential characteristics of an effective
18
Inspector General? For the record please. Thank you all. Thanks
for what each of you do.
Senator HASSAN. Why don’t we start with Ms. Lerner and we will
just go right down the line.
Ms. LERNER. I am sorry. I could not hear the question.
Senator HASSAN. I had difficulty hearing it too. Senator Carper,
could I suggest that you submit that for the record, and that——
Senator CARPER. That is what I asked to do.
Senator HASSAN. Oh. You are just submitting that question for
the record. You are not asking them to answer.
Senator CARPER. That is exactly right.
Senator HASSAN. Terrific. Thank you very much.
Senator Johnson, if you are ready I will recognize you for your
round of questions.
OPENING STATEMENT OF SENATOR JOHNSON
Senator JOHNSON. Thank you. I appreciate that. Welcome, every-
one. Thanks for your service, especially General Horowitz. You and
I have had this conversation before, where I have made the anal-
ogy, which I think is a pretty accurate analogy, to independent
auditors that are appointed by the board, oftentimes selected by
the Chief Executive Officer (CEO), and they are meant to provide
information to the board of directors, who report to the share-
holders, is everything on the up-and-up in the corporation.
I kind of look at Inspectors General the exact same way. When
I hear ‘‘independent,’’ I am just asking the question, independent
of who? Who should Inspectors General be independent of?
Mr. HOROWITZ. We have had this discussion. I appreciate it. As
you know from our discussion, in private practice I represented and
worked with audit committees and independent auditors, and I
think the answer on that is independent of the agency leadership
from being able to take personnel action against them. That is the
system Congress set up. Now I am going to talk about Presi-
dentially appointed, Senator-confirmed IGs, like in my position.
The setup that Congress created was to allow me to operate
without fear that the agency leadership can respond in a personnel
action against me. I can, of course, be removed at will by the Presi-
dent, and that is entirely appropriate, and none of this legislation
changes that.
Senator JOHNSON. OK. So again, it is independent of the agen-
cies, but Inspectors General report to the President. They serve at
his pleasure. Correct?
Mr. HOROWITZ. That is correct.
Senator JOHNSON. Unfortunately, over the years—and I have ex-
perienced this firsthand as Chairman of this Committee, trying to
undertake investigations, issuing subpoenas, for example, to the
FBI, they were largely ignored, slow walked. Congressional over-
sight has been dramatically weakened because we have no enforce-
ment mechanisms. It seems like we have outsourced our oversight,
the people’s oversight, the people’s direct oversight into these agen-
cies to Inspectors General.
I am concerned that Inspectors General, when they take a look
at that ‘‘independent’’ moniker that they are thinking that is inde-
pendent of everybody. The President of the United States is held
19
accountable to the voters. If he dismisses an Inspector General, the
voters will hold the President accountable. I am concerned about
the thrust of all the requirements imposed by Congress. Again, we
have relied on Inspectors General, and I appreciate the work. I
have also worked with Inspectors General who were corrupt and
had to leave. OK? I think our other witnesses are aware of that as
well, the inspections they are having to do on Inspectors General.
I think this is important to keep in mind, that the Inspectors
General report to the President. They do not report to Congress.
We use them, but my solution would be to beef up, reclaim congres-
sional oversight power, which we have allowed to lapse, and we
have outsourced that to Inspectors General. Do you understand
that assessment? Not agree or disagree, but do you understand
where I am coming from there?
Mr. HOROWITZ. I certainly understand the concern you outline
about what the congressional oversight responsibilities are and
how they have been executed. I will just say, this legislation
changes nothing about the President’s ability to remove an IG.
There is no for-cause provision here. There is none of that. And to
your point, as CIGIE Chair, one of the things—and Allison has con-
tinued this, I know, as Chair—I talk about this all the time with
not only my folks at DOJ OIG but with other IGs, we are not free-
range actors. I agree with you completely. We are in a constitu-
tional system. We follow the IG Act. We follow the law.
What I think the legislation does, though, particular with the Va-
cancies Act, is it does not limit the President’s ability to remove.
The President can remove whomever——
Senator JOHNSON. Just puts reporting requirements on them.
Mr. HOROWITZ. Well, it does on the——
Senator JOHNSON. Again, I have some other issues.
Mr. HOROWITZ. OK.
Senator JOHNSON. One example, I think a glaring example in
terms of the weakening of congressional oversight, is, for example,
under a Freedom of Information Act (FOIA) request, over 4,000 of
Dr. Fauci’s emails were provided to an outside group. Now Con-
gress is not subject to the redactions of that information that,
again, they were forced to give to an outside group. We asked for
those, five of us, on this Committee, using a law that says they
shall turn over this information. We are not asking for new docu-
ments. We are just asking for the 4,000 pages, unredacted. We
have not gotten them unredacted. We are getting then now in dribs
and drabs, just little bits and pieces, a couple of pages at a time,
in camera. I think that is wrong.
I do want to, before I run out of time here, though, because I
have not been able to talk to you about this, since I was Chair and
since you issued your FISA report, in your FISA report you talked
about how—and this was in the main body of the report, how Bill
Priestap had told you, that ‘‘the FBI didn’t have any indication
whatsoever, by May 2017, that Russians were running a
disinformation campaign through the Steele election reporting.’’
That was in your FISA report. Correct?
Mr. HOROWITZ. Yes. I do not have it in front of me but I trust
you——
20
Senator JOHNSON. It was. It took us months in a battle to
unredact redacted footnotes that completely are contrary to that. I
do not want to take time to quote that, but that is in the public
record and you are aware of these footnotes.
Mr. HOROWITZ. Yes.
Senator JOHNSON. The question I have for you is, I see nothing
in these footnotes that should have been classified or even subject
to redaction. Why were those redacted?
Mr. HOROWITZ. I would have to go back and look at the specific
footnotes, and I am working on memory, but just on this and all
our other reports, we send this to the FBI and the Justice Depart-
ment leadership and they ultimately make the call, and I am
not——
Senator JOHNSON. OK. That is——
Mr. HOROWITZ [continuing]. Not the person who is going to put
out information. They say it is classified, obviously and risk getting
prosecuted for doing that.
Senator JOHNSON. Right. So again, what I was trying to point out
here, this was further cover-up by the FBI and the Department of
Justice, wanting to make sure that—it was not in the public do-
main, very early on. They knew that the source of the Steele dos-
sier had contacts with Russian intelligence services. They knew
this as early as October 2016, January 2016, and yet the FBI and
the Mueller investigation continued to plod forward and put this
country through the political turmoil of the Mueller investigation,
even though they knew the source document that prompted the in-
vestigation, the corrupt investigation, was very likely a product, or
certainly part of a product of Russian disinformation. That is an ac-
curate assessment, is it not?
Mr. HOROWITZ. I will just add, there are many reasons why, as
we detail in the report, there should have been greater follow-up
and skepticism about reporting.
Senator JOHNSON. But I will say every step of the way, in my in-
vestigation, I was frustrated by Members of this Committee, but by
FBI Director Wray, that did not comply with my subpoenas, and
as a result the American public was kept in the dark about this.
I think, and my final point is, congressional oversight capability
must be beefed up. As important as IG reforms are and making
sure that you can operate independently and uncover corruption
within agencies to report to the President, Congress needs the
oversight ability to report to the American public.
Chairman PETERS. [Presiding.] Thank you.
Mr. HOROWITZ. And can I just——
Chairman PETERS. Quickly, please.
Mr. HOROWITZ [continuing]. Comment on the Senator’s point be-
cause I do think it is relevant to today’s discussion as well, because
as many of the Members know, who were here over the last 10
years, certainly in my first few years, and Senator Johnson
chaired, I think, some of these hearings where we talked about my
inability to get records, and at the time, just to be clear, one of the
areas that was off-limits to me, supposedly, was FISA records.
Back in the day, as you will recall, the only reason that changed
is because this Committee, Sen Grassley, and the House moved the
IG Empowerment Act (IGEA) legislation in 2016 that overturned
21
the LLC opinion, the FBI’s position, and gave us access to that. If
we did not have the access to the records you would not have even
had our 600-page report without FISA, because I could not have
done it. That is why the reforms here are so important for us to
be able to do.
Senator JOHNSON. Thank you.
Chairman PETERS. Thank you, Mr. Horowitz. Senator Hassan,
for your questions.
OPENING STATEMENT OF SENATOR HASSAN
Senator HASSAN. Thank you, Mr. Chairman. I want to thank you
and the Ranking Member for holding this hearing, and I want to
thank your witnesses, not only for your testimony but your service
as Inspectors General. It is obviously incredibly important, and I
am very grateful to you and your families for the service you pro-
vide. Your important work roots out waste, fraud, and abuse of tax-
payer dollars and improves the delivery of critical services to the
American people.
I want to start with a question to you, Inspector General Lerner,
and I would really like to follow up on the need for the testimonial
subpoena authority, because more than 40 years, Inspectors Gen-
eral have been able to issue subpoenas to compel the production of
documents to advance their oversight work.
Earlier this year, I introduced the Inspector General Testimonial
Subpoena Authority Act with Senator Grassley, to expand the sub-
poena authority and allow the IG community to also compel in-per-
son testimony from witnesses who refused to cooperate with IG in-
vestigations, and we have talked a little bit about that already this
morning.
But Inspector General Lerner, how do Inspectors General use the
documentary subpoena authority and how would having the testi-
monial subpoena authority build on the existing authority?
Ms. LERNER. First off, thank you very much for your and Senator
Grassley’s support for testimonial subpoena authority.
In terms of how IGs use documentary subpoena authority, I
think they have used it very successfully over the over 40 years
that we have had that authority. As I indicated earlier, most IGs
have a strong process built around ensuring the appropriateness of
the subpoenas that are being put out, ensuring that they are with-
in the jurisdiction of the office and that they are not overly broad
or unduly burdensome.
We know, in asking people to provide us with documents, that
that is a burden on them, but, it needs to be outweighed by the
benefit that is coming in. I think as court cases have shown, in sit-
uations where IGs have issued subpoenas, there have been very
few cases where an IG subpoena has not been upheld. I can think
of one, and that was a situation where the subpoena was not re-
lated to a matter within the IG’s jurisdiction.
I think we have an outstandingly strong process of appropriately
using our documentary subpoena, and we will build on that and en-
sure that we appropriately handle testimonial subpoenas.
Senator HASSAN. You have a system in place, and you can use
the same kind of parameters and structures and reviews to oversee
the documentary subpoena process, so it would not be abused.
22
Ms. LERNER. Absolutely. We will build on them, because, obvi-
ously, what we are asking for here, it takes us a step beyond docu-
mentary, and it has a greater impact on people.
Senator HASSAN. Right. You referenced it just a bit, but if con-
cerns are raised about an IG’s use of the documentary subpoena
authority, how are those concerns addressed?
Ms. LERNER. There are a couple of different avenues. If there is
any question of political or partisan or problematic reasons behind
a subpoena, that is a matter that could go to CIGIE’s Integrity
Committee. But I also imagine if we are given this authority we
would build steps into our peer review process to examine the use
of this by Inspectors General and ensure that they have appro-
priate procedures in place, and, factor that into the ultimate as-
sessment that happens periodically, of all IGs’ investigative oper-
ations.
Senator HASSAN. hank you.
Mr. HOROWITZ. Can I add, Senator?
Senator HASSAN. Yes, just briefly, because we have to get to a
bunch of other things.
Mr. HOROWITZ. Absolutely. The other mechanism is, frankly, if
someone receives a subpoena and thinks it is improper, they can
go to court. We cannot enforce it. We would have to go to court——
Senator HASSAN. Got it.
Mr. HOROWITZ [continuing]. And get a judge to do it.
Senator HASSAN. Got it. I appreciate that. I wanted to go a little
bit deeper on something that you mentioned, Ms. Lerner, and I will
actually ask Inspectors General Horowitz and Winters to reply to
this. It is important to note the testimonial subpoena authority is
not new, because the Department of Defense Office of Inspector
General has had the testimonial subpoena authority for more than
a decade.
So, IG Horowitz, you mentioned in your testimony that the De-
partment of Defense IG has used its testimonial subpoena author-
ity sparingly, issuing only three subpoenas for testimony since it
received the authority in 2009. How can the DOD IGs’ use of this
authority serve as a model for how other IGs can use the testi-
monial subpoena authority in a judicious and thoughtful way?
Mr. HOROWITZ. Excellent question. I think it is very important
for us to use it as a model, because it has worked so well, for now
a dozen years.
What I would expect to happen, as I understand is happening
and has happened at the Defense Department IG, is before an IG
signs a subpoena for testimony they engage counsel or the witness
themselves, to understand what the concerns are, if there are any
issues or problems with testimony. Frankly, we do that now in the
voluntary arena. When we are trying to get people to speak to us
voluntarily we have those discussions. You do the same thing, and
what I understand from the Defense Department IG is the reason
they have had to issue so few is they have been able to reach ac-
commodations with witnesses that have avoided the need to issue
the subpoena, and to find the parameters of an acceptable vol-
untary interview.
Senator HASSAN. Excellent. I just wanted to confirm, Inspector
General Winters, you mentioned it earlier that your Integrity Com-
23
mittee of CIGIE can prevent abuse of the testimonial subpoena au-
thority as well.
Mr. WINTERS. Correct. Abuse of authority is squarely within our
jurisdictional realm.
Senator HASSAN. OK. To Inspector General Lerner, I appreciated
your testimony regarding my work to reform the semiannual re-
ports to Congress. These reforms intend to streamline and simplify
the semiannual reports to make them more accessible to Congress
and the public and to place greater emphasis on the agency’s re-
sponse to IG recommendations to root out waste, fraud, and abuse.
How would these reforms help the Inspector General community,
and are you confident that agencies and Congress will still receive
the important oversight information that these reports are in-
tended to provide?
Ms. LERNER. I am absolutely confident that these reforms would
not interfere with the transparency that Congress deserves from
Inspectors General. In the 40 years since those requirements were
enacted, IGs have made tremendous gains in being transparent.
We all have websites now. We have places like oversight.gov. These
reforms will allow us to more efficiently produce the semiannual re-
ports and leverage those existing resources, and that will ensure
that the most important matters are most clearly visible and trans-
parent, and that the time and energy we used to put into doing
things that were of lesser interest can be redirected and produce
better outcomes for our office and for the people who depend on our
work.
Senator HASSAN. Thank you very much, and thank you, Mr.
Chair, and again, to all of the witnesses. Thank you for your work.
Chairman PETERS. Thank you, Senator Hassan. Senator
Lankford, you are recognized for your questions.
OPENING STATEMENT OF SENATOR LANKFORD
Senator LANKFORD. Chairman, thank you. Thank you all for your
work. It is vitally important. We very much appreciate the work
and would encourage you to stay on it, continue to bring ideas and
issues. Inspectors General deal with fraud, make recommendations,
bring up ideas of greater efficiency, so Inspectors General that are
actually leaning in to an agency, developing those relationships,
and proposing ideas help us all, and help the Nation. There is an
expectation of that work, and let me just be one of many to be able
to say to you, lean in. We need you working well in that task.
I have a whole litany of issues and questions that I want to be
able to walk through and try to be able to address. We have talked
through several things, but I would tell you what I hear most from
people at home, when they talk about Inspectors General and dif-
ferent issues they see in government is why does it seem like no
one is held to account?
Now we all know that is not correct. There are some people held
to account. But it becomes a very big deal when we see someone
like Andrew McCabe, who we have already mentioned earlier, who
you found, researched, walked through all the interviews, and
found that he clearly lied, was fired by the Department of Justice,
and then now has been added back in, his pension is now recov-
ered, back pay is being paid back to him. There is a real sense of,
24
hey, there is an Inspector General report that came out saying this
person lied, and there seems to be no consequence on it.
What we can do to be able to bring you testimonial subpoena au-
thority and to be able to get at some of these things and to get rec-
ommendations is of great benefit to just restoring trust into govern-
ment in the process. I want to drill down on a couple of these.
Mr. Horowitz, you have been through investigations before that
crossed jurisdiction. You walked through the issue of Glenn Simp-
son and Jonathan Winer. It is a State Department issue where you
are over on Department of Justice. They were State Department,
then they retired and makes this even harder. So can we talk
through, when you get into an investigation that may include peo-
ple from multiple ‘‘jurisdictions,’’ from other agencies, and then
when they retire, how hard that is to be able to get the testimonial
evidence.
Mr. HOROWITZ. It is very hard, and the normal process would be
if the employee was still at the State Department, for example, I
would reach out to the State IG and they would facilitate my being
able to speak to that person, much as I do, actually, on occasions
when people call me. But once the employee is gone, the employee
is gone, and I have no authority over them. State Department em-
ployee does not. The only one who would is the Defense Depart-
ment IG, and I obviously do not cross over into that realm much.
Senator LANKFORD. Subpoena power to be able to require testi-
monies is essential for the ongoing work because there are numer-
ous examples of individuals who are under investigation with the
Inspector General, they just retired and said, ‘‘I am out,’’ and then
it becomes the issue of they retire with benefits, everyone knows
that there was activity there, there was fraud, there was abuse.
That was something whistleblowers have called out but they just
retire and leave, and they leave with full benefits.
Mr. HOROWITZ. How do you explain to the complaint who has
come in and said, ‘‘I was sexually assaulted’’ or ‘‘I was retaliated
against as a whistleblower,’’ or ‘‘I just reported money was stolen
and you are doing nothing about it.’’ The answer is, ‘‘Well, we need
to get the evidence.’’
Senator LANKFORD. So we need to get that to you, clearly. There
needs to be a balanced perspective on how that is handled. It was
handled judiciously by the Department of Justice over the decade
that they have had it. I believe that can work, but we have to be
able to find a way to be able to hold people to account in the proc-
ess.
Mr. Horowitz, again for you, you did a very thorough examina-
tion on the Woods procedures in the FISA. FISA is an area that
you have been excluded from, obviously to take a look at when you
are having the opportunity to be able to do it. You are just looking
to see whether the standards that have been set for a FISA appli-
cation process were followed. That is a pretty straightforward
issue. Best that I had, when I pulled through this, you sampled 29
FISA applications and you found 400 instances of noncompliance
with the Woods procedures. Then it got worse. You went through
7,000 FISA applications that have been authorized in the last 5
years. There were 179 which the Woods file, as was listed from
your document, was missing, destroyed, or incomplete. I want to
25
drill down on a couple of those things. Missing and incomplete is
one thing. Destroyed is something totally different. That is a voli-
tional act. Do you have evidence that some of these Woods proce-
dures were destroyed?
Mr. HOROWITZ. We have evidence that some of the files were de-
stroyed. The problem was the FBI, even though they put in place
this requirement of creating a Woods file, did not give any guid-
ance on what you should do with it afterwards. We had a situation
where our investigators, lawyers went in and found a stack of docu-
ments in a corner, and that was, we were told, what comprised the
Woods file.
So you cannot have an effective procedure to try and make sure
FISA is scrupulously accurate through a Woods procedure and then
not ensure the Woods procedures are being followed.
Senator LANKFORD. Right. You made 10 recommendations to the
FBI. Five of them they have responded to. Five of them, to the best
of our understanding, they have not. Do you have an update from
them that they are following through on those recommendations?
Mr. HOROWITZ. They have told us they are following through on
them, and through our regular process, in 60 days to 90 days they
will owe us a report, and we will continue to update that. We have
been doing this, by the way, in some of our other national security
reports with the FBI for years and years, because we continue to
follow up. That is what it means to have independent oversight. We
close them, not the agency.
Senator LANKFORD. Right. Mr. Winters, I want to be able to drill
down on something here. The allegations that come from anyone to
the Inspector General, from a whistleblower, whoever it may be,
sometimes they are factual, sometimes they are not. Sometimes it
is harassment from an employee that has found an effective way
to be able to harass individuals, and they keep them tied up into
investigations. So the Inspector General has a process for deter-
mining whether an allegation has merit at the beginning. I call it
like a little mini grand jury. You can call it what you want to at
that point, but you have to be able to make a decision to have
merit.
Can you walk me through that process, because sometimes this
is a legitimate investigation and sometimes it is harassment. How
do you evaluate this and what do you pass on to other Inspectors
General?
Mr. WINTERS. That is an excellent question, Senator, and every
Inspector General faces that, and also the Integrity Committee as
well, in terms of the weaponization of complaints. But we have a
process for it, and particularly in the pandemic we have a lot of
complaints coming in. There is a sifting, and we look at, basically,
is this a valid complaint that alleges some form of wrongdoing that
is actionable? From the Integrity Committee’s perspective, whether
or not there is a person that is covered, that is basically a senior-
level person.
For a typical complaint that comes in, say, for example, to NASA
when I was there, or Amtrak, we have a specific section that does
that, that has a sifting process that assesses the facts versus the
criteria of whether something is actionable or not.
26
Senator LANKFORD. We obviously want to be able to get you, and
we have been very outspoken on this, the testimonial subpoena
power, to be able to make sure someone cannot just retire and then
avoid any kind of pursuit on this. We talked a lot about trying to
get to who is the chain of secession if we need to get to an acting
Inspector General. We have spoken frequently about how to be able
to get more Inspectors General. This has been an issue of multiple
Presidents, that they just do not appoint an Inspector General so
they leave it open for a long time and it becomes an issue.
This seems to be a gap that I do not know enough about, and
I would be willing to be able to talk about, because I never want
the Inspectors General Office to be used as a weapon against some-
body unjustly, especially if someone is in their personal capacity
and is having to hire their own personal attorney in this process,
and someone who is just mad at them for a decision that they
made chooses to be able to weaponize the process. That becomes
highly disruptive to them personally and discourages people from
actually stepping into government, when they know there is a Fed-
eral employee that can weaponize this process and just drive them
out.
Mr. WINTERS. I absolutely agree with that. As an Inspector Gen-
eral, and I just talk for me personally, we take an oath. I took my
first oath in August 1972, to support and defend the Constitution.
What that means is adherence to the rule of law, not some partisan
narrative. We are very sensitive to those type of complaints, and
endeavor, of course, to follow the law and the facts, in terms of
those particular complaints.
Senator LANKFORD. OK. Thank you. Mr. Chairman, thank you.
Senator PORTMAN [Presiding.] Senator Lankford, thank you.
Thank you for your contributions to the legislation and particularly
your work on this testimonial subpoena issue, which is a difficult
one to navigate but a very important one. So thanks for your help.
We have a number of people who are on virtually. Senator
Ossoff, I believe you are next, if you are with us.
OPENING STATEMENT OF SENATOR OSSOFF
Senator OSSOFF. Thank you, Senator Portman, and thank you to
the Inspectors General for your service, your diligent work, for join-
ing us today.
I appreciate this discussion of the legislation pending before the
Committee. I also want to drill down on a couple of specific issues
within your respective areas of responsibility that you have identi-
fied as possible targets for reform legislation or change of practice
in the Executive Branch.
Mr. Horowitz, thank you for your collaboration and communica-
tion with my office as we have developed bipartisan legislation to
reform the security camera systems in Bureau of Prisons (BOP) fa-
cilities. I would note that that legislation passed the Senate last
night.
You have also made recommendations with respect to single-cell
confinement for incarcerated persons with mental illness and rec-
ommendations with respect to pharmaceutical purchases by BOP
facilities and cost of outside medical care. Could you briefly outline
those recommendations to the Committee?
27
Mr. HOROWITZ. Certainly, Senator, and I also noted that the bill
passed last night that will, I think, have a potentially important
impact on the prison camera system.
With regard to single-celling of inmates, we identified significant
concerns with how it impacted individuals’ mental health at the
BOP, the BOP’s policies for how to deal with inmates who were dis-
ruptive. This is what it involved. It involved individuals who were
disruptive and who the BOP put in special housing units, and in
some instances, single-celled them. That is something the BOP
says it does not look to do, that it does not put individuals in soli-
tary confinement, yet we identified numerous instances where that
occurred.
We made a variety of recommendations that the BOP agreed
with. As I sit here today, Senator, I do not know the status of those
but I can certainly follow up with you on that.
On the pharmaceutical side and the cost side, we have issued a
number of reports identifying how the BOP has not taken the steps
it could take to reduce some of its costs so that it could save money
in various areas that it is spending, particularly on the pharma-
ceutical side. For instance, what we found is that there are four
agencies that receive what is called the ‘‘big four pricing,’’ which is
favorable pricing on pharmaceuticals, but that the BOP, even
though it has one of the largest health care systems, if you will,
because it has to take care of the 150,000 or so Federal inmates,
does not get that preferred pricing.
We also made the recommendation to the Department that it
consider coming to Congress to seek legislation to also be able to
obtain that favorable pricing, which could save tens of millions of
dollars for the BOP.
Senator OSSOFF. Thank you, Mr. Horowitz. There has been some
discussion at today’s hearing about testimonial subpoena power
and the ability to compel testimony from personnel who retire
amidst or in advance of an investigation. Could you also comment,
Mr. Horowitz, on some of the other issues related to retirement of
Federal personnel amidst investigation, how that can interrupt or
terminate the investigative process, and the implications for their
personnel records when they may seek employment once again in
the same or another Federal agency?
Mr. HOROWITZ. Absolutely, Senator. It is an issue that we have
been very concerned about for years. In fact, we issued a report
about this about three weeks ago, concerning specifically how the
FBI was handling adjudications of employees who had retired or
resigned during the course of the investigations.
The way the process goes is we investigate, or the FBI inves-
tigates, misconduct. It completes its work and sends it to the FBI’s
Office of Professional Responsibility for adjudication, which is to
determine what penalty or discipline to impose. What we found is
that the FBI regularly, with limited exception, closes its adjudica-
tion if an employee resigns or retires, and we found, in 2017 and
2018, that that occurred in more than 10 percent of the cases.
That is concerning because, as you indicated, what happens is,
in many instances, employees resign or retire and then either get
hired as contractors, because they are working for a contracting of-
28
fice, or go to another government agency to work, or, in the law en-
forcement case, might go to State and local law enforcement.
It is important that the FBI and other Justice Department agen-
cies, and frankly across the entire Federal Government, that when
individuals leave you have engaged in wrongdoing or misconduct,
that those matters get adjudicated and that the findings be in-
cluded in their personnel files. I will add, it also is important in
the case where the individuals are found not to have committed
misconduct, because, by the way, in those more than 10 percent of
the cases I mentioned, in some of them the OIG had actually found
that the individual did not engage in the misconduct, yet they were
not cleared, formally and fully cleared, because the matter was not
adjudicated.
Senator OSSOFF. Thank you, Mr. Horowitz.
Mr. Winters, the bipartisan infrastructure legislation that passed
the Senate earlier this year included some significant investment
in passenger rail. I am a strong advocate for expanding passenger
rail capacity in the United States, and particularly in the South-
east, to connect, for example, Atlanta-Macon-Savannah, Atlanta-
Charlotte, Atlanta-Nashville, and additional commuter rail options
for rural and suburban and urban communities across the State of
Georgia.
You have made recommendations, and I think alarming observa-
tions, with respect to the cybersecurity of Amtrak’s train control
systems. Could you please detail, in my remaining time, those ob-
servations and recommendations for the Committee?
Mr. WINTERS. In this public setting, Senator, I cannot go into a
lot of detail on it, and I would be happy to meet with you privately
regarding some of those particular details on that.
I will say this, that Amtrak is not alone, in terms of having chal-
lenges with cybersecurity. Train control systems, of course, are crit-
ical to the safety of passenger rail, and our office conducts very ag-
gressive oversight in that space.
Senator OSSOFF. Thank you, Mr. Winters. My staff will reach out
to yours to set up a classified forum to get into more detail on that.
Thank you again for all of your service and your diligent work, and
I yield back.
Senator PORTMAN. Thank you, Senator Ossoff. Senator Scott.
OPENING STATEMENT OF SENATOR SCOTT
Senator SCOTT. I want to thank Senator Portman for hosting this
hearing, and I want to thank each of you for doing what you do.
I have been up here 2 years and 9 months, and I have really appre-
ciated the IGs, because I believe the oversight function of this Com-
mittee and Congress is really important. I am a business guy. I
liked internal audit. I am not sure everybody liked it but I thought
it was always helpful, to make sure we knew exactly what was
going on.
One of the questions I have is, how important is this subpoena
power and is it necessary, and if each of you could sort of address
if you have seen situations where an IG investigation has been hin-
dered, obstructed, halted because they are not able to compel a per-
son to submit to questioning.
If we could start with Mr. Horowitz.
29
Mr. HOROWITZ. Absolutely. Good to see you again, Senator, and
thank you for the question.
Senator SCOTT. Thanks for what you guys do, by the way. I am
appreciative of it.
Mr. HOROWITZ. Yes, no, and as you well know, and as I know,
the State of Florida has the largest IG system in the country, and
a very impressive one, and we have worked with the——
Senator SCOTT. They are really helpful if you are the Governor.
Mr. HOROWITZ. We have worked with the IGs there and they
have been very helpful to us on the Federal level.
On the testimonial subpoena authority, I can highlight high-pro-
file matters, like our Nassar investigation, where the USA Gym-
nastics president refused a second interview with us so we could
ask about allegations involving the FBI Special Agent in Charge
and whether there was a conflict of interest. In the FISA review
we could not reach certain State Department employees, who had
left, as well as others who were never government employees but
who had highly relevant information. I could go all the way back
to Fast and Furious, where the U.S. attorney quit rather than
speaking—or quit and then would not speak to us.
But most importantly, I think it is in the routine, day-to-day
ones that do not get those kinds of attention that, as you know, we
do all the time, like whistleblower retaliation investigations. I have
authority over FBI whistleblower retaliation. It happens there,
where people resign or retire, and I cannot talk to key witnesses.
It happens with contractors who are alleged to have stolen money.
Senator SCOTT. I was going to ask you about that.
Mr. HOROWITZ. Contractors, stolen money. Congress gave us au-
thority to do that kind of work, precisely because of your concern
in making sure we could oversee allegations of theft and wrong-
doing. If we cannot subpoena non-government employees—even if
they work at the contractor, I cannot compel them to talk to me.
I can compel a DOJ employee. I cannot compel one of their contrac-
tors. If they leave the contractor it is even harder to get that per-
son to agree to speak with us.
Sexual harassment cases, I could detail multiple ones where the
employee left rather than speak to me.
Senator SCOTT. You just could not pursue it.
Mr. HOROWITZ. Yes. I have no authority to do it.
Senator SCOTT. You have information, I guess.
Mr. HOROWITZ. I have the information, the allegation. So are
there times I can confirm it? Absolutely, through other mecha-
nisms, but it takes us longer. In several of our investigations, by
the way, like the FISA one, the Clinton email one, and others, peo-
ple did speak to us voluntarily, but they waited until very late to
speak to us, and so it delays our work.
Even in those instances where you see us actually hearing from
people, it could take us a lot of time to get them to speak to us.
It is a very important tool. I very much appreciate, as I mentioned,
that the Committee has built in place protections, because there
should be safeguards. It should not be something we just run
around and are able to use. There are three IGs who are going to
have to review it. I am going to have to review it, as the IG at Jus-
30
tice. I am going to give it scrutiny. It is not going to go on to the
three IGs unless I have put a lot of oversight and look into it.
I think it is a critical tool for us. Frankly, for the public, they
want to know what happened. They do not want to know that
someone stiffed us and we could not figure it out, or I think this
is what happened but I cannot definitively know because I cannot
get the evidence.
Senator SCOTT. Mr. Winters.
Mr. WINTERS. Senator, one thing I have learned, after serving in
NASA for nine years, running their investigations, now Amtrak,
and now on the Integrity Committee, is we carefully decide wheth-
er or not to investigate or not. There is a reason that we are doing
that, and it is not just some whim, that there is a real public inter-
est in finding out the truth. How frustrating it was, in those nine
years at NASA, and at Amtrak, and now at the Integrity Com-
mittee, that we cannot really get to the truth because we do not
have the tools to do that. So we appreciate your help in that re-
gard.
Ms. LERNER. Yes, I just want to underscore what Kevin said. It
is one of the most frustrating things for my investigative staff
when we have an allegation. We had a situation once, we were
looking into a small business that had allegedly defrauded NSF,
and we were told by one of the employees that he had fabricated
the timesheets that we were given to support time. That ended the
voluntary cooperation from all of the people at the recipient. We
had the documentary evidence of it but we were not able to engage
with the people that could give us greater insights and take that
case to closure.
It is extremely demoralizing for our investigative staff when
those matters come. There are so many benefits that could come
from this authority, and some are internal to our own offices.
Senator SCOTT. You there are enough safeguards that it will not
get abused?
Mr. HOROWITZ. Yes. I think the safeguards you have added are
very important. That is clearly a very reasonable, legitimate con-
cern. There are going to be a three-IG panel. IGs are going to have
to approve these personally. There is the Integrity Committee, if
people are abusing it, they are available, and these are not self-en-
forcing subpoenas. If a recipient thinks we are abusing the author-
ity they can go to court, and we are going to have to convince the
Justice Department Civil Division. We do not have litigating au-
thority, so we have to tell the Justice Department Civil Division,
‘‘Defend this subpoena.’’ There is that layer of protection as well.
So you have to convince me, you then have to convince three IGs,
if a recipient thinks we are doing something wrong and they want
to go to court I have to convince the Civil Division at the Justice
Department, and then they have to convince a judge.
I do think that is the case, and I will just add, Senator, that the
Defense Department IGs had this authority for 12 years now. They
have used it very rarely, a handful of cases. They have not, to my
understanding, lost a case that way. You have given it to me, as
the Chair of the Pandemic Response Accountability Committee. We
are overseeing $5 trillion. You gave it previously to the Recovery
Act in 2009. In none of those instances has it been abused, so I
31
think there is a track record as well, which is why I am concerned,
and we talked about the sunset issue earlier. I think that track
record with those protections on top of the concerns that IG Lerner
mentioned earlier, I think should hopefully give comfort to people
that this will be used appropriately. We are also going to notify the
Attorney General, by the way.
Ms. LERNER. Can I just build on what you said. The bottom line
is all of us IGs, who are going to be the ones signing those authori-
ties, we know what is at stake here. It has taken us 10 years, if
we are lucky, to get this authority, and we know our use of it is
going to be scrutinized. We are going to be hyper-focused on ensur-
ing that we stay on the right side of the law here.
Senator SCOTT. Thank you very much. I appreciate it.
Senator PORTMAN. Thank you, Senator Scott.
Chairman PETERS [Presiding.] Senator Padilla, you are recog-
nized for your questions.
OPENING STATEMENT OF SENATOR PADILLA
Senator PADILLA. Thank you, Mr. Chairman. I want to also
thank each of our witnesses for our testimony and for your public
service. As several colleagues have recognized, and I want to asso-
ciate myself with their comments as well, Inspectors General play
a key role in our democracy by independently and objectively work-
ing to expose waste, fraud, and abuse. Again, also acknowledged
earlier in the hearing, Congress did pass the Inspector General Act
in the wake of the Watergate scandal as a means of ensuring integ-
rity and accountability in the Executive Branch.
For over 40 years, Congress and the public have relied on the
work of Inspectors General to speak truth to power. In recent
years, those truths have included, for example, shedding light on
the inhumane treatment of immigrants, including children, in Fed-
eral detention centers, and the shortcomings of our COVID pan-
demic response.
However, administrations have exploited some gaps in law and
undermined the efficacy of the Inspectors General, and I appreciate
the Chairman and Ranking Member’s calling attention to the issue.
Now as you know, this Committee is considering legislation that
grants Inspectors General the authority to subpoena witnesses for
testimony. At present, most Inspectors General lack the authority
to compel testimony from certain categories of individuals, includ-
ing contractors and former Federal employees.
My first question is for Mr. Horowitz. Mr. Horowitz, you high-
lighted in numerous investigations the lack of testimonial subpoena
power hampered your work. You referenced, in particular, the in-
vestigation you led regarding the former administration’s family
separate policy, which resulted in nearly 4,000 family separations.
Using that as a great example, not in a good way, how would testi-
monial subpoena power have aided your investigation of the family
separation policy?
Mr. HOROWITZ. Thank you, Senator, and you are right. That is
one of the reviews that we have done and investigations that we
have done that warrant our ability to have this authority. I think
it is fair for us, as IGs, when we are looking at a policy implemen-
32
tation, to be able to speak to those who were responsible for the
policy.
In that particular case, the Zero Tolerance Policy was announced
by then-Attorney General Sessions, we got broad cooperation from
throughout the Justice Department, from employees at the Depart-
ment, and if I recall correctly from some employees who were no
longer at the Department. But we could not get testimony from
former Attorney General Sessions, who was obviously very central
to that discussion.
Our inability to do that meant that there were certain items, cer-
tain issues, certain discussions that he was a part of that we were
not able to get his recollection of events. There were few notes of
some of those meetings. Our inability to do it diminished from our
ability to fully assess what had occurred.
Senator PADILLA. I appreciate you sharing that, and I know that
on the flip side there are folks who say, any subpoena power can
also be abused. The next question is for Ms. Lerner and for Mr.
Winters. Do you think that the legislation we are considering has
the adequate checks to ensure that the authority not misused?
Ms. LERNER. I will start. Certainly I think that requiring notifi-
cation to the Attorney General and utilizing an IG panel, this is
above and beyond what we ordinarily do. We are building on a very
strong foundation that we have in place for our use of documentary
subpoenas.
By adding, these additional requirements of consultation with
the Attorney General’s Office and the approval of three-person IG
panel and stepped-up reporting requirements, I think that the evi-
dence will be there that will clearly incentivize everyone to use this
properly, not that I think that incentive is necessary.
As I mentioned earlier, all of us, as IGs, recognize the stakes if
we are granted this authority, and are committed to exercising it
wisely. But we appreciate your interest in common-sense controls
to help ensure it is not misused. Kevin.
Mr. WINTERS. I agree that those controls are adequate, and I also
add that the CIGIE’s Integrity Committee, which was designed by
Congress, is another check on abusing that authority.
Senator PADILLA. Great. I appreciate that. One more question in
the time remaining, also for Ms. Lerner and Mr. Winters, but I will
sort of tee up the question. Ensuring that government agencies
maintain a strong cybersecurity posture has never been more im-
portant. I think we would all agree to that. Numerous breaches of
government and critical infrastructure have inspired a significant
push to ensure that our agencies have the resources and the infor-
mation they need to effectively guard their systems. We also need
to be sure that the agencies are complying with existing cybersecu-
rity requirements.
The question again to both of you is what role do Inspectors Gen-
eral play in enhancing the cybersecurity of Federal agencies, and
how would the reforms that have been discussed today help
strengthen that work?
Ms. LERNER. Most Inspectors General are required by law to con-
duct the audits of the agencies’ information systems securities
under the Federal Information Security Modernization Act
(FISMA). So you have our independent eyes examining the agen-
33
cies’ systems in accordance with criteria that is laid out by Na-
tional Institute of Standards (NIST), and, I believe, potentially the
Department of Homeland Security (DHS).
You have our independent eyes, using independently determined
standards, and there is a great deal of value that comes from that.
In many instances there is penetration testing done as part of that
process, and so that adds real insight into the strength of indi-
vidual agencies’ information systems. Kevin.
Mr. WINTERS. I agree with Ms. Lerner’s commentary on those
tools. I will also add that within CIGIE we have a separate com-
mittee called the Tech Committee that we share the best practices
of oversight of critical infrastructure information technology (IT) re-
quirements.
Senator PADILLA. Thank you both for your responses, and thank
you again for your work. Mr. Chairman, thank you.
Chairman PETERS. Thank you, Senator Padilla. Senator Rosen,
you are recognized for your questions.
OPENING STATEMENT OF SENATOR ROSEN
Senator ROSEN. Thank you, Chair Peters, Ranking Member
Portman for holding this hearing. This Committee really does some
great bipartisan work, and I am grateful to both of you to have the
opportunity to have this discussion about something really impor-
tant.
As we all know, reforming how Inspectors General function in
the Federal Government is fundamentally a good government
issue. Simply put, IGs make government work better for the Amer-
ican people and ensure agencies are good stewards of taxpayer dol-
lars. Having independent watchdogs ensures that Federal agencies
carry out their public service missions with integrity and efficiency.
I was pleased to see, in Ms. Lerner’s testimony, that the work
of the IGs and their staff generated potential taxpayer savings of
about $53 billion in fiscal year 2020, a $17 return on every dollar
invested in the Offices of Inspectors General. I am going to ask a
little bit more about that in a moment.
I really want to thank my colleagues for their serious attention
to this issue, thank each of the witnesses for their public service
and commitment to transparency and accountability, not just to the
taxpayers in Nevada but, of course, across the country.
I want to speak about the savings to taxpayers from IG over-
sight. Ms. Lerner, as I mentioned, I was really interested to read
your testimony about the significant taxpayer savings generated by
the work of IGs. Can you tell us more about how you track and cal-
culate the savings to taxpayers as a result of the work of the IG
offices?
Ms. LERNER. Certainly. All IGs report semiannually to Congress
on the work of our audit, and included in the tables in the semi-
annual reports are the outcomes of our audits and inspections that
can yield funds that are questioned, as being, dubious expendi-
tures, and also funds that could be put to better use. There are also
financial returns to government that come from our investigative
work when, for example, there are fines, penalties, and restitution
that come through criminal cases, or in the case of false claims act
investigations, potentially treble damages can be returned to the
34
government, the singles going to the agency and the rest going to
the Treasury.
There are many ways that our work yields quantifiable financial
returns to the government.
Senator ROSEN. I can tell you that a lot of people that are watch-
ing today and a lot of the questions we get is really how are we
spending people’s money, and they are worried that we are wasting
it. Maybe, could you share with us some examples of wasteful
spending or other inefficiencies that you have identified from a
Federal agency, and how do you think then Congress can help in
preventing this?
Ms. LERNER. I think that there are so many ways that people can
misuse money. Speaking from my own agency’s experience, NSF is
a large grantmaking agency, and what we find sometimes is grant
recipients take NSF’s money but they do not ensure that they use
it for the purposes for which it was given. We have had instances
where people proposed doing scientific research and are funded by
NSF to do that, but it turns out that they have actually done that
scientific research already and they are going to take our money
and use it for other purposes. In situations like that we pursue a
grant fraud investigation and work with prosecutors to hold those
people to account for their misuse of government funding.
There are other situations that do not rise to the level of criminal
or civil wrongdoing that involve people who have perhaps mis-
understood the rules governing the funding that they are receiving,
and in those instances we question that through an audit process.
I think that much of the improvements that are necessary in sit-
uations like that reside within the agency in ensuring that people
who receive funding understand their obligations and understand
what is expected of them, in terms of managing the money. But I
would be happy to get back to you with more concrete ideas about
whether there are mechanisms for Congress as well in that process.
Senator ROSEN. Thank you. I would look forward to that. The
other thing is I know that you need a lot of help to do these inves-
tigations, so I want to talk about recruiting and retaining qualified
IGs, because in my view, one of the most important services that
the Council of the Inspectors General on Integrity and Efficiency
provides is ensuring that IGs and their staff are qualified to do
your jobs. We have talked a lot today about the importance of IGs
who are really making sure that they are truly independent from
the President, from agency heads.
But I would like to hear a little bit more about what you all
think about what makes someone qualified to be an IG and how
we can ensure a pipeline of talented individuals to fill these jobs.
Ms. Lerner, as chair of CIGIE, could you comment how we can im-
prove and build on the pipeline for oversight talent, please?
Ms. LERNER. I think one of the best things that we can do is en-
sure that people who are my daughters’ age—I have a daughter in
college and on in law school—that they understand the opportuni-
ties that are available in the oversight community and see us as
viable career paths. We have many people who are going to be
aging out of leadership roles, and we have to ensure that we have
a new generation coming forward that are willing to engage with
35
us. Doing a better job on our part of getting the word out about
our mission will help us there.
We also, in CIGIE, have a great IG Candidate Panel that sup-
ports both the President and agency heads in seeking to fill IG po-
sitions. They look at the experience. Obviously, in the statute,
there are certain discipline-related types of expertise that IGs are
supposed to have, but you also want to know that someone who is
interested in being an IG understands how hard it can be to be
independent, how difficult it can be to sit at the top of an organiza-
tion where you are part of, but at a distance from, your own agency
and also committed to engaging with Congress. You need to be re-
sponsive and respectful to both of those sides of your reporting obli-
gations, but you need to maintain your own integrity in doing your
work the way that it is appropriate within the IG Act.
We ask a lot of questions focused on that of people who are inter-
ested in being IGs as well.
Senator ROSEN. Thank you, and I see my time is up, so Mr.
Horowitz and Mr. Winters, I will submit the same question to you
for the record, and hopefully we can build a good pipeline of quali-
fied, caring people to do this very important job for the United
States government.
Thank you, Mr. Chair.
Chairman PETERS. Thank you, Senator Rosen. Ranking Member
Portman, I know you had some closing questions.
Senator PORTMAN. Thank you very much, Mr. Chairman. I will
not take the full time. I just want to say that I think this has been
a terrific hearing and exchange of views, and it seems to me that
of all the issues we have touched on, probably the one that has had
the most potential controversy is the testimonial subpoenas. I ap-
preciate your initial response, Ms. Lerner, to my questions and to
Chairman Peters’ questions on that.
I think it is important to lay out what the guardrails are, be-
cause we have talked a lot about guardrails without getting into
detail, and I do think there are some safeguards here that Senator
Peters and I have included in our bill that are quite effective, be-
cause I do think that it is an enormous responsibility that the IGs
would be taking on to subpoena people after they leave.
No. 1, the Attorney General would review any subpoena going
out and would be able, in that case, as I understand it, to provide
information as to any potential conflicts with other investigations
that might be ongoing, and I think that is important. That informa-
tion could be considered by this panel. It is a panel of IGs. Three
Senate-confirmed IGs would have to approve it. The CIGIE chair
is responsible for selecting those three Senate-confirmed IGs to re-
view it.
Third, it would only be available for audits, evaluations, inspec-
tions, and investigations that the IG was undertaking, so not some
fishing expedition, and also would have to be reasonably related to
that case. Fourth, CIGIE was being asked to issue standards,
which they have done before in other areas, and those standards,
I think, would be consistent with standards we have laid out be-
fore, including that it be reasonably related.
And fifth, there would be a congressional reporting requirement.
Now these are semiannual reports to Congress, so it is not a report
36
prior to the issuance. But it is a report to Congress to let us know
how it is working and what is going on, and Ms. Lerner, you talked
about that earlier as maybe a potential way for Congress to be able
to understand without having a sunset put into the legislation
itself.
Finally, I would just say, and Mr. Horowitz, you mentioned this
earlier this morning, that people still have access to the courts,
with regard to these subpoenas.
Anyway, Mr. Chairman, I appreciate you letting me do that. I
think our bill is balanced and I think it is a good way to ensure
independence of IGs but also ensure that these investigations can
continue. Thank you.
Chairman PETERS. Thank you, Ranking Member Portman, and I
agree. I look forward to moving it forward.
Mr. HOROWITZ. Senator, can I just comment briefly?
Chairman PETERS. Absolutely.
Mr. HOROWITZ. OK. Because I just want to expand on one of the
items you mentioned, which is AG review. As the Justice Depart-
ment IG, and I have now been IG under five different Attorneys
General, that has meaning, even though it is not a veto, for exam-
ple.
I should just note, we, as IGs, in our law enforcement respon-
sibilities and our investigative responsibilities, work regularly with
the Justice Department prosecutors and leadership. The fact that
the Attorney General would come into one of the IGs who wanted
to issue a subpoena and say, ‘‘If you issue that subpoena it could
cause is a problem with an ongoing criminal investigation, civil
matter, or national security matter,’’ which would probably be a
rare instance, the former might be, I cannot imagine a scenario
where we would not say we are not looking to interfere with any-
thing that you are doing, in terms of a criminal or civil case.
I think that is actually a very important process, and I appre-
ciate you mentioning that, Senator, because I think that is of great
significance.
Chairman PETERS. Thank you. Senator Hawley, you are recog-
nized for your questions.
Senator HAWLEY. Thank you very much, Mr. Chairman. Thanks
for waiting for me, and thanks to the witnesses for being here
today. It is good to see all of you.
Ms. Lerner, I want to start with you, if I could. Are you familiar
with the report from WilmerHale, their independent investigation
regarding allegations of misconduct by three DHS OIG employees
regarding the nomination of Dr. Cuffari?
Ms. LERNER. I am aware of the report.
Senator HAWLEY. Have you read it?
Ms. LERNER. A very heavily redacted version.
Senator HAWLEY. My office has been contacted by multiple whis-
tleblowers who allege widespread misconduct, including, I am
afraid, you, and I want to give you the chance to respond to those.
I always take whistleblower complaints very seriously, and they
pointed me to the WilmerHale report, which I have now read,
which I have to say is very disturbing. I mean, for those who do
not know, it is 108 pages here, 70 interviews conducted, 42,000 doc-
uments reviewed. What WilmerHale found is that a number of
37
DHS OIG employees improperly interfered in the Presidential nom-
ination and Senate confirmation process regarding Dr. Cuffari to be
the IG at DHS.
WilmerHale notes, at the outset of their investigation, or the out-
set of their report, rather, that, of course, any citizen has the right
to question a Presidential nomination in their personal capacity.
Federal employees, in their capacity as private citizens, have a
First Amendment right to express their political opinions and may
contact lawmakers to do so, and, of course, that is very important.
They go on. ‘‘However, it is a misuse of authority for a Federal
employee to use his or her public office to interfere with a Presi-
dential nomination or the Senate confirmation process.’’ Then they
say, ‘‘Federal employees should not use their government resources,
including the email system or access to lawmakers or other govern-
ment officials, for personal gain or for any other unauthorized pur-
poses.’’
WilmerHale further reports, in their investigation, following
their investigation, that these individuals who were opposed to Dr.
Cuffari’s nomination within DHS OIG came to you, Ms. Lerner, to
discuss the nomination. They wrote to you saying that they had a
sensitive matter related to the DHS IG nominee to discuss. You all
agreed to speak on the phone, and following the conversation Ms.
Costello, one of the complainants, sent you a link to a report re-
garding California Coast University. I guess the complaint here
was that Dr. Cuffari’s Ph.D. was no from a suitably prestigious
university.
During the interview, Ms. Costello spoke to Ms. Lerner about Dr.
Cuffari’s nomination, stated they were doing so because it was in
the best interest of the agency. Ms. Lerner agreed that they had
an obligation to protect the organization and figure out whether
others knew that Dr. Cuffari’s degree was issued by a diploma mill.
What WilmerHale has found here is that you were on govern-
ment property at the time, using government resources, on govern-
ment time, that you encouraged what WilmerHale concludes was
a serious interference with the Presidential nomination process and
the Senate confirmation process, and a pretty serious misuse of
government resources.
I know you did not sit for an interview. WilmerHale said they
tried to interview you and you would not sit for an interview. But
we have you here. These are serious allegations. I thought I would
give you a chance to respond.
Ms. LERNER. I appreciate you giving me the chance to do that.
The most that I can say right now is that statement of the con-
versation is not consistent with my recollection of it.
Senator HAWLEY. So you deny that you encouraged them to
spread around complaints, using government resources, that Dr.
Cuffari was unqualified for the position, that his degree was issued
by a diploma mill?
Mr. HOROWITZ. Senator, may I jump in for a second?
Senator HAWLEY. I would like an answer to my question.
Ms. LERNER. I did not encourage—I did not take the actions as
described in the statement made by Ms. Costello.
Senator HAWLEY. Did you improperly use government resources
to interfere with the Presidential nomination——
38
Ms. LERNER. No.
Senator HAWLEY [continuing]. Senate confirmation process?
Ms. LERNER. I did not.
Senator HAWLEY. Did you use any government resources—email,
telephone, government property? Did you work on this project on
government time?
Ms. LERNER. In my capacity as Vice Chair, and Michael can
speak to this as well, in his capacity as Chair, we would frequently
be called by individuals working in OIG offices who had questions
or concerns that they thought that we could shed light on, and we
would endeavor to answer those questions.
We take calls from people who have a concern, and try to steer
them in the right direction, and that is all that I did here with
these individuals. I think that is consistent with our obligation as
leaders of CIGIE, and, at no point was I trying to undermine the
nomination of anyone for a PAS position.
Senator HAWLEY. Why did CIGIE not open an investigation into
these allegations? Why did there have to be an outside investiga-
tion, which found evidence of wrongdoing?
Ms. LERNER. That is a question best directed to the Integrity
Committee, because——
Senator HAWLEY. It was part of your decision, was it not, not to
open an investigation?
Ms. LERNER. No. I am not a member of the Integrity Committee,
and the leadership of CIGIE is purposefully separate from the In-
tegrity Committee, to preserve its independence to conduct inves-
tigations of OIG folks.
Senator HAWLEY. When the report says that it is a misuse of au-
thority for a Federal employee to use his or her office to interfere
with the nomination or confirmation process and that Federal em-
ployees should not use their government resources, including email
systems or access to lawmakers or other government officials, for
any unauthorized purpose, you are saying definitively, for the
record, under oath, you did not ever do any of those things?
Ms. LERNER. I did not undermine anyone’s nomination for a PAS
position.
Senator HAWLEY. You did not use the email system, access to
lawmakers, or any other government resources for any unauthor-
ized purpose?
Ms. LERNER. I used the email systems to respond to questions
from individuals about a situation in their office, and just attempt
to steer them in the right direction and provide guidance to them
as they confronted a challenge. That is not, in my view, incon-
sistent with my obligations as a public servant.
Senator HAWLEY. I am disappointed that we are here and that
this is, frankly, it has come to this impasse that we have this re-
port from WilmerHale that is quite extensive and quite lengthy.
You did not sit for an interview with them. They were not able to
get your views on any of this. I noticed neither did you, Mr. Horo-
witz.
I frankly think it is very disappointing, and I think the fact that
we now have multiple whistleblowers coming to us about this se-
ries of events, I mean this is harrowing reading, to be honest with
you, and it is disturbing reading that this would be happening. I
39
want to say, I am going to try to get to the bottom of it, but I am
disappointed that it has come to this, and in this setting.
Ms. LERNER. I appreciate your concern, but I would say that Mr.
Horowitz and I engaged with people on both sides of that situation
who had concerns and wanted to protect both the privacy of both
of the entities that we were involving so that people would feel
comfortable coming to us for counseling in situations like that.
Mr. HOROWITZ. Senator, let me respond to that, because the seri-
ous issue—Joe Cuffari, by the way, used to work in the DOJ OIG,
as you may know. He was an agent. I talked with Joe both while
his confirmation was pending and after he became IG, and he can
explain to you however much he would like. I would be happy for
him to do that. How much time I spent with him, as did Allison
on several of those calls, to help him as the IG, to get settled in,
and to deal with some of the challenges he was dealing with.
In terms of that, I also talked to him, actually, as he can describe
to you, if you would like, and I think it may be even in that report,
when he wanted to move forward and sought to move forward with
the allegations and how to deal with them.
With regard to WilmerHale’s reach-out to us, and to me in par-
ticular, we engaged with the lawyers and asked them to give us
some idea of what they were looking to speak to us about. As Ms.
Lerner just indicated, as CIGIE Chair and as Vice-Chair, I regu-
larly receive calls from IGs, from others in the IG community, to
give them advice, guidance, views on how they can proceed. Some
of it was as routine as career advice. Some of it was far more sig-
nificant.
The question I had for WilmerHale lawyers was, what informa-
tion, generally, in the areas that they were looking at and to get
at, because we do have an obligation to ensure that discussions we
have, like I had with Mr. Cuffari, are maintained in confidence
when the individual who comes to us would like them to be in con-
fidence, and then assess whether there is a need for the investiga-
tors to have that information. I have to understand a little bit more
before I just sit for an interview as CIGIE chair, and be asked
about a variety of conversations that I have had with people who
come to me.
Frankly, view it again as to the IG Act provisions that are in the
law, that as DOJ IG—let me put it this way. As DOJ IG, if those
individuals had come to me, there is an IG Act provision that re-
quires confidentiality. I have to think long and hard about that be-
fore making a decision on what to speak to. I never ruled it out.
But the question was, until the end, until there was an unwilling-
ness to have that discussion.
But that was my concern, is that we did not have a dialog, and
I was not comfortable at the time knowing what I was to speak to,
because frankly, I did not have first-hand knowledge of a lot of
what I ultimately ended up reading about in the WilmerHale re-
port at the time they reached out to me. I was not familiar with
it.
Senator HAWLEY. My time has long expired here, and the Chair-
man has been very indulgent. I will have some additional follow-
up questions for you, for the record.
40
I cannot adjudicate your dispute with WilmerHale as to why you
did or did not sit for an interview. I am just noting a fact, that they
say that you had relevant information. Even particularly you, Ms.
Lerner, likely had information about these discussions and would
have been able to shed light. You did not sit for an interview. that
is your prerogative.
But the fact is this is serious. This is serious, what I read in this
report. I hope this is not normal. It sure as heck should not be, and
I think we have some more work to do to get answers here.
Thank you, Mr. Chairman.
Mr. HOROWITZ. Senator, I am happy to come meet with you and
talk to you in person.
Ms. LERNER. As am I.
Chairman PETERS. Mr. Winters, did you have any anything to
add?
Ms. LERNER. Mr. Horowitz’s recollection of the back-and-forth
with WilmerHale Counsel, yes, is accurate, and I share his willing-
ness to come and engage with you more on this.
Chairman PETERS. Thank you, Senator Hawley. I want to thank
again our witnesses for joining us here today and for our Com-
mittee Members for engaging in this critical issue.
We have an opportunity before us to advance some of the most
significant reforms to strengthen independent Inspector General
oversight in a decade. The legislation that Senator Portman and I
have been working on has strong bipartisan as well as bicameral
support, and I am grateful for the leadership of colleagues like Sen-
ator Grassley and Senator Hassan, who have long championed
independent oversight, as well as the work of Chairwoman Malo-
ney, who is leading this reform effort over in the House.
The bipartisan legislation pending before our Committee would
take important steps to protect the IG from undue interference and
ensure that they have the tools to conduct effective oversight for
American taxpayers. Many of the provisions included in the bill
have received strong bipartisan support in both the House and the
Senate in recent years, and I hope to build on that momentum with
the legislation that will be before us shortly.
I appreciate my colleagues’ diligence on this important issue and
I look forward to continuing to work together to harness the oppor-
tunity before us to pass these bipartisan reforms and strengthen
the roles of our nation’s independent watchdogs.
The record for this hearing will remain open for 15 days, until
5 p.m. on November 5, 2021, for the submission of statements and
questions for the record.
This hearing is now adjourned.
[Whereupon, at 12:23 p.m., the hearing was adjourned.]
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