Senate hearing (117th Congress), SAFEGUARDING INSPECTOR GENERAL INDEPENDENCE AND INTEGRITY
Summary
Senate Hearing 117-513 records the October 21, 2021 hearing of the Committee on Homeland Security and Governmental Affairs on Inspector General independence, with Chairman Gary C. Peters presiding. Witnesses are Allison C. Lerner, Chair of the Council of the Inspectors General on Integrity and Efficiency; Kevin H. Winters, Amtrak Inspector General; and Michael E. Horowitz, Justice Department Inspector General and Chair of the Pandemic Response Accountability Committee. Peters and Ranking Member Rob Portman describe legislation requiring a substantive rationale before an Inspector General is removed, drawing acting IGs from the IG community and giving IGs testimonial subpoena authority. Lerner says IG work in 2020 resulted in potential savings of approximately $53 billion.
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“Senate hearing (117th Congress), SAFEGUARDING INSPECTOR GENERAL INDEPENDENCE AND INTEGRITY.”
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[Senate Hearing 117-513]
[From the U.S. Government Publishing Office]
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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
47-980 PDF WASHINGTON : 2022
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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
C O N T E N T S
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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, National 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
SAFEGUARDING INSPECTOR GENERAL INDEPENDENCE AND INTEGRITY
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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 PETERS\1\
Chairman Peters. The Committee will come to order.
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\1\ The prepared statement of Senator Peters appear in the Appendix
on page 41.
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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 ensure 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 colleagues with protections to strengthen
independent oversight of the government's effectiveness.
This legislation is, quite frankly, long overdue. For
decades, Inspectors General have acted as independent,
nonpartisan watchdogs 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
Efficiency's (CIGIE) recent annual report to Congress estimated
that Inspectors General saved American taxpayers more than $50
billion last year alone. It is absolutely vital that our
Federal watchdogs are able to work independently and without
the threat of political interference.
Current law allows for actions that threaten to undermine
this independence, including the removal of Inspectors General
from office without sufficient explanation and the appointment
of partisan political operatives to serve in these
traditionally nonpartisan 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
General 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 Acting Inspectors General are selected from a pool of
senior-level employees 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
Inspectors 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
Committee 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 recommends 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 Transparency (GAT) Board.
Welcome, Ms. Lerner. But before we hear your opening
comments I would like to recognize Ranking Member Portman for
his opening comments.
OPENING STATEMENT OF SENATOR PORTMAN\1\
Senator Portman. Great. Thank you, Mr. Chairman, I
appreciate your indulgence, and thank you for convening this
hearing today.
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\1\ The prepared statement of Senator Portman appears in the
Appendix on page 43.
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Inspectors General are essential to good government. I
think everybody understands and agrees with that. Congress has
a responsibility, of course, to conduct oversight of the
Executive Branch, and that responsibility would be far more
difficult without Inspectors 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 billion. That is a lot of waste, fraud, and abuse.
We ask IGs to undertake some of the most important and
sensitive oversight work. For example, I intend to offer an
amendment today to our IG legislation 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 important work. Since 1978, Congress has improved and
reformed Inspector 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
community 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
independence. Many have worked on this, including Senator
Grassley. We should notice his work. I will point out that the
current law already requires the President to provide Congress
the 30 days' notice before removing an IG. We do not change
that. It does not increase the time period.
It does, however, preserve the congressional intent and the
interest in understanding why that IG was removed by requiring
the 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
during the Obama and Trump administrations by requiring that
acting IGs be named from the Inspector General community. Both
President 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 future reports of waste, fraud, and abuse.
The legislation also provides testimonial subpoena
authority for IGs. This will allow IGs to complete interviews
of important witnesses, 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 Congress 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 testimony.
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 INTEGRITY 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
Chairperson of the Council of in the Inspectors General on
Integrity and Efficiency.
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\1\ The prepared statement of Ms. Lerner appears in the Appendix on
page 45.
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Despite the tumult caused by the Coronavirus Disease 2019
(COVID-19) pandemic, our community has remained focused on its
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 billion, a $17 return on every dollar
invested in IG oversight. For accomplishments like this to
continue and expand, action is necessary.
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 Independence and Empowerment Act, and included in the
Peters/Portman substitute amendment.
First, as I noted, it is imperative that Congress take
steps to protect the institutional independence of Inspectors
General. To be effective, IGs have to be independent in both
mind and appearance, and being independent is no less important
for individuals temporarily serving as head of an OIG. The IG
community urges Congress to amendment the Federal Vacancies
Reform Act to prevent the appointment of an acting IG that
calls into question the independence 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 administrations, create actual and perceived
conflicts of interest that undermine the IG's independence and
stakeholders' confidence in its work; discharge whistleblowers
from coming to the IG with evidence 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
Inspector 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 necessary to maintain the public's trust and
widen the pool of professional 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
Committee since at least 2015, has long sought testimonial
subpoena authority, an essential tool for IGs to be able to
conduct comprehensive oversight. Because most IGs lack this
authority, they cannot obtain potentially critical evidence
related to alleged wrongdoing from certain individuals unless
they voluntarily agree to be interviewed. The fact that we
cannot require these interviews undermines our ability to
complete investigations and hold individuals 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 authority. 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 replacing 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 forward to working closely with you all to
ensure that Inspectors General continue to be empowered to
provide the independent, nonpartisan 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
National 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
Administration (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 forensic 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 duties 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 of the IG community for the past 15 years, to include,
as you said, service at NASA, as the Assistant Inspector
General for Investigations.
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\1\ The prepared statement of Mr. Winters appear in the Appendix on
page 53.
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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, recognizing that we cannot discuss ongoing matters.
Third, our challenges, which present opportunities for
improvement.
By law, IGs have daunting oversight responsibilities over
agencies, programs, and operations. Amtrak's, for example,
includes a 24/7 nationwide rail service to 46 States and three
Canadian provinces 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 officials, currently about 468 of them, perform their
duties with integrity and apply the same standards of conduct
and accountability to themselves as they apply it to the
agencies that they audit and investigate. 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 voting members, a senior official from the
Federal Bureau of Investigation (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 Integrity
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
congressional 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 to have a system of government built on adherence to the
rule of law and with checks and balances, which includes
independent Inspectors General who help ensure the
effectiveness of their agencies.
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 nationwide workforce of more than 500 special
agents, auditors, inspectors, 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
committee 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.
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\1\ The prepared statement of Mr. Horowitz appear in the Appendix
on page 59.
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Each year, as was noted, independent oversight work by IGs
results in billions of dollars in recoveries and savings for
the taxpayers. The bipartisan Inspector General Independence
and Empowerment 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 include 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 support 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 excluding DOJ lawyers from
that same OIG oversight. Providing my office with such
jurisdiction would enhance the public's confidence in 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 recognized recently by the National Association of
Assistant U.S. Attorneys (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 position, we both agree that
independence is necessary to promote public confidence in
investigations of department lawyers.
Congress has already created such a statutorily independent
entity 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 attorneys specializing in attorney ethics. This
group of my attorneys at the Department of Justice OIG led our
review of the Foreign Intelligence Surveillance Act (FISA)
abuse allegations, the Clinton email and Comey memos
investigations, and our overview of Bureau of Alcohol, Tobacco,
Firearms and Explosives' (ATF's) Operation Fast and Furious, as
well as other sensitive and complex matters.
Further, the OIG would ensure that the process for
reviewing attorney 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 effectively with the DOJ law
enforcement components. Indeed, the disciplinary processes at
the FBI and Drug Enforcement Administration (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 employees, 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. Further, 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 interview 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 diminishes
the public's trust in the government and harms the taxpayers.
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 subpoenas. I hope the Committee moves this
legislation forward.
In conclusion, thank you for your leadership and this
Committee'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 reason for removing an IG,
which gives Congress the time to deliberate whether the removal
is appropriate and warranted.
Ms. Lerner, I know you mentioned this in your opening
comments. 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 situations 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 requirements, 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,
because 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 witnesses as well. Under current Federal vacancy law,
nothing prevents the President from appointing an acting IG who
is not qualified 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 individuals 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 benefit to the Nation and the agency rather
than, for example, someone 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
General 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 agency, and a senior official from that
agency, whether they are a political 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
appointed without regard to political affiliation and based
solely on integrity and their demonstrated excellence in
certain specific disciplines. 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
improve 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 occasions 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
retaliation, 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 supervisor, who had left the
contractor. We could not. Those are the kinds of problems we
face.
Chairman Peters. Ms. Lerner, you testified that Inspector
General oversight can be substantially hampered by the
inability to compel the testimony of witnesses who have
information that cannot 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 existence we have never had a subpoena enforced.
We are not alone. Other IGs have this. We build on those
procedures. 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 committed to working with you all to ensure
that those protections are in place.
Mr. Winters. Mr. Chairman, may I add something on
testimonial subpoena authority?
Chairman Peters. Absolutely.
Mr. Winters. From the Integrity Committee's perspective,
where we have oversight over senior Inspector General
personnel, to include 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 testify or to answer
our calls then our investigations are somewhat pointless.
To Ms. Lerner's point, in terms of how the Transportation
Security 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 provided. It is very helpful. The 30-day notice period
and the provisions that we want to include within that so that
there is some rationale 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 process up and going. But what about a sunset of
four, or five, or six 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 revoke 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 results 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 instances, 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 worried 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 resolve 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 expertise. You have also got the nonpartisanship,
and IGs need to be beyond 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 community before us. That is about the
investigation of former FBI Deputy 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 reversed 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
investigation 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 believe that Deputy Director McCabe may have
lied to them.
They then referred the matter to us----
Senator Portman. Right.
Mr. Horowitz [continuing]. Then the position he held at the
FBI. We assumed the investigation and concluded, in a public
report that remains on our website and the public can see, that
Mr. McCabe lied both under oath and not under oath, on several
occasions, when he denied, at various points, certain key facts
and information, 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 career 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 adjudicate, 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 occasions, 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 career 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
consistent with how the Department of Justice and the Office of
Professional 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 considerations?
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
remain 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
message 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
individuals 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.
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 important--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
President 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, removed, or, frankly, even things worse happening.
I have an opportunity 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
importance of the testimony you all are providing today, the
legislation we are considering, and the interest in maintaining
the independence 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 legislation would give the Office of the Inspector
General authority to continue oversight of agency operations in
the event of a government shutdown, to the extent that certain
agencies continued to operate. 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.
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 limited 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 continue 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 running 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 described those offices as--here is the quote, I
think out of line--independent and objective units that are
charged with investigating waste, investigating fraud, abuse,
and promoting much-needed accountability.
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 consider, 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 making 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
independence 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 standpoint, in particular. I think it is very
hard to be in a position where we are being asked to
investigate alleged wrongdoing, but like occurred in, for
example, the Nassar matter, and then when the public 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
allegedly retaliated will not talk to us. That leaves
significant dissatisfaction, 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 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,
everyone. Thanks for your service, especially General Horowitz.
You and I have had this conversation before, where I have made
the analogy, 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 shareholders, 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 Presidentially 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 President, and that is entirely appropriate, and
none of this legislation changes that.
Senator Johnson. OK. So again, it is independent of the
agencies, 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
experienced 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 oversight has been dramatically weakened because
we have no enforcement mechanisms. It seems like we have
outsourced our oversight, the people's oversight, the people's
direct oversight into these agencies to Inspectors General.
I am concerned that Inspectors General, when they take a
look at that ``independent'' moniker that they are thinking
that is independent of everybody. The President of the United
States is held 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 congressional 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 continued 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 constitutional system. We follow
the IG Act. We follow the law.
What I think the legislation does, though, particular with
the Vacancies 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 Congress 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 documents. 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----
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 Department 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 domain, very early on. They knew that the source of
the Steele dossier 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 investigation, the corrupt
investigation, was very likely a product, or certainly part of
a product of Russian disinformation. That is an accurate
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 investigation, 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
because 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 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 provide. Your important work roots out waste,
fraud, and abuse of taxpayer 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 General 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 subpoena authority and allow the IG community to
also compel in-person testimony from witnesses who refused to
cooperate with IG investigations, 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
testimonial 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 within 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 situations 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 related 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 ensure 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.
Ms. Lerner. Absolutely. We will build on them, because,
obviously, what we are asking for here, it takes us a step
beyond documentary, and it has a greater impact on people.
Senator Hassan. Right. You referenced it just a bit, but if
concerns 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 appropriate procedures in place, and,
factor that into the ultimate assessment that happens
periodically, of all IGs' investigative operations.
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
Department of Defense IG has used its testimonial subpoena
authority 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 testimonial 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 accommodations with witnesses that
have avoided the need to issue the subpoena, and to find the
parameters of an acceptable voluntary interview.
Senator Hassan. Excellent. I just wanted to confirm,
Inspector General Winters, you mentioned it earlier that your
Integrity Committee of CIGIE can prevent abuse of the
testimonial subpoena authority 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 reports 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 response 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 intended 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 reports and leverage those
existing resources, and that will ensure that the most
important matters are most clearly visible and transparent, 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 different 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 recovered, back pay is being paid back to him.
There is a real sense of, 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
authority and to be able to get at some of these things and to
get recommendations is of great benefit to just restoring trust
into government 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 Simpson 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 people 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 employee does not. The only one who
would is the Defense Department IG, and I obviously do not
cross over into that realm much.
Senator Lankford. Subpoena power to be able to require
testimonies is essential for the ongoing work because there are
numerous 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 process.
Mr. Horowitz, again for you, you did a very thorough
examination 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 application 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 drill down on a couple of
those things. Missing and incomplete is one thing. Destroyed is
something totally different. That is a volitional act. Do you
have evidence that some of these Woods procedures were
destroyed?
Mr. Horowitz. We have evidence that some of the files were
destroyed. The problem was the FBI, even though they put in
place this requirement of creating a Woods file, did not give
any guidance on what you should do with it afterwards. We had a
situation where our investigators, lawyers went in and found a
stack of documents 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 determining 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.
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 somebody 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 Federal employee that can weaponize
this process and just drive them out.
Mr. Winters. I absolutely agree with that. As an Inspector
General, 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 joining 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 identified as possible targets for reform
legislation or change of practice in the Executive Branch.
Mr. Horowitz, thank you for your collaboration and
communication with my office as we have developed bipartisan
legislation to reform the security camera systems in Bureau of
Prisons (BOP) facilities. 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 recommendations with respect to pharmaceutical purchases by
BOP facilities and cost of outside medical care. Could you
briefly outline those recommendations to the Committee?
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 disruptive. 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 solitary 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 pharmaceutical 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
investigates, 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 adjudication 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 office, or go to another government agency to work,
or, in the law enforcement case, might go to State and local
law enforcement.
It is important that the FBI and other Justice Department
agencies, 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 included 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 Southeast, 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
observations, with respect to the cybersecurity of Amtrak's
train control systems. Could you please detail, in my remaining
time, those observations 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 challenges with cybersecurity. Train control systems, of
course, are critical to the safety of passenger rail, and our
office conducts very aggressive 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 appreciated the IGs, because I believe the oversight
function of this Committee 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 hindered, obstructed, halted because
they are not able to compel a person to submit to questioning.
If we could start with Mr. Horowitz.
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-profile matters, like our Nassar investigation, where the
USA Gymnastics 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
authority to do that kind of work, precisely because of your
concern in making sure we could oversee allegations of theft
and wrongdoing. 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 contractors. If they leave the contractor
it is even harder to get that person 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
mechanisms, but it takes us longer. In several of our
investigations, by the way, like the FISA one, the Clinton
email one, and others, people 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 Justice. 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 whether 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 interest in finding out the truth. How
frustrating it was, in those nine years at NASA, and at Amtrak,
and now at the Integrity Committee, 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 regard.
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 concern. 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-enforcing subpoenas. If a
recipient thinks we are abusing the authority they can go to
court, and we are going to have to convince the Justice
Department Civil Division. We do not have litigating authority,
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 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 authorities, 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 ensuring 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
recognized 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 associate myself with their comments as well,
Inspectors General play a key role in our democracy by
independently and objectively working 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 integrity 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 Federal detention centers, and the shortcomings of
our COVID pandemic 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, including contractors and former Federal
employees.
My first question is for Mr. Horowitz. Mr. Horowitz, you
highlighted in numerous investigations the lack of testimonial
subpoena power hampered your work. You referenced, in
particular, the investigation 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 testimonial 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 implementation, 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 Department, 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, certain 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
notification 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 evidence 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 important. 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 information they need to effectively
guard their systems. We also need to be sure that the agencies
are complying with existing cybersecurity requirements.
The question again to both of you is what role do
Inspectors General 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
conduct the audits of the agencies' information systems
securities under the Federal Information Security Modernization
Act (FISMA). So you have our independent eyes examining the
agencies' systems in accordance with criteria that is laid out
by National 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 individual 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
committee called the Tech Committee that we share the best
practices of oversight of critical infrastructure information
technology (IT) requirements.
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 important.
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
American people and ensure agencies are good stewards of
taxpayer dollars. 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
oversight. 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 calculate 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 semiannual reports are the outcomes of our audits and
inspections that can yield funds that are questioned, as being,
dubious expenditures, 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 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
watching 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 misunderstood 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
situations 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
investigations, 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 improve and build on the pipeline for oversight
talent, please?
Ms. Lerner. I think one of the best things that we can do
is ensure that people who are my daughters' age--I have a
daughter in college and on in law school--that they understand
the opportunities 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 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
supports both the President and agency heads in seeking to fill
IG positions. 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 organization where you are part of, but
at a distance from, your own agency and also committed to
engaging with Congress. You need to be responsive and
respectful to both of those sides of your reporting
obligations, 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
interested 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 qualified, 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 appreciate 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,
because 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, because 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 information 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 review it.
Third, it would only be available for audits, evaluations,
inspections, 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 before, 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 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
Department IG, and I have now been IG under five different
Attorneys General, that has meaning, even though it is not a
veto, for example.
I should just note, we, as IGs, in our law enforcement
responsibilities 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 anything that you are doing,
in terms of a criminal or civil case.
I think that is actually a very important process, and I
appreciate you mentioning that, Senator, because I think that
is of great significance.
Chairman Peters. Thank you. Senator Hawley, you are
recognized 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
whistleblowers 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 documents reviewed. What WilmerHale found is that a
number of DHS OIG employees improperly interfered in the
Presidential nomination and Senate confirmation process
regarding Dr. Cuffari to be the IG at DHS.
WilmerHale notes, at the outset of their investigation, or
the outset 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 Presidential 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 government officials, for personal
gain or for any other unauthorized purposes.''
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 regarding 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
government property at the time, using government resources, on
government 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 conversation 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----
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
investigation, 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 Integrity Committee, to preserve its independence to
conduct investigations of OIG folks.
Senator Hawley. When the report says that it is a misuse of
authority for a Federal employee to use his or her office to
interfere with the nomination or confirmation process and that
Federal employees 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
unauthorized 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, inconsistent 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
report 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. Horowitz.
I frankly think it is very disappointing, and I think the
fact that we now have multiple whistleblowers coming to us
about this series of events, I mean this is harrowing reading,
to be honest with you, and it is disturbing reading that this
would be happening. I 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
serious 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
particular, 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
regularly 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 significant.
The question I had for WilmerHale lawyers was, what
information, 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 confidence, and then assess whether
there is a need for the investigators 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 requires confidentiality. I have to think long
and hard about that before making a decision on what to speak
to. I never ruled it out. But the question was, until the end,
until there was an unwillingness 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 report at the time they reached out to me. I was not
familiar with it.
Senator Hawley. My time has long expired here, and the
Chairman has been very indulgent. I will have some additional
follow-up questions for you, for the record.
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 willingness 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
Committee 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 Senator Grassley and Senator Hassan, who
have long championed independent oversight, as well as the work
of Chairwoman Maloney, 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 opportunity 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.]
A P P E N D I X
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