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                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                           FEBRUARY 26, 2008


                           Serial No. 110-80


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                 HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York              DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
    Columbia                         VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
JIM COOPER, Tennessee                BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
------ ------

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
               Lawrence Halloran, Minority Staff Director

                            C O N T E N T S

Hearing held on February 26, 2008................................     1
Statement of:
    Weinstein, Allen, Archivist of the United States, National
      Archives and Records Administration, accompanied by Gary M.
      Stern, General Counsel, National Archives and Records
      Administration, and Sharon Fawcett, Assistant Archivist for
      Presidential Libraries, National Archives and Records
      Administration; Alan R. Swendiman, Director, Office of
      Administration, the White House; and Theresa Payton, Chief
      Information Officer, Office of Administration, the White
      House......................................................    42
        Payton, Theresa..........................................    59
        Swendiman, Alan R........................................    52
        Weinstein, Allen.........................................    42
Letters, statements, etc., submitted for the record by:
    Davis, Hon. Tom, a Representative in Congress from the State
      of Virginia, prepared statement of.........................    38
    Issa, Hon. Darrell E., a Representative in Congress from the
      State of California:
        Information concerning Lotus Notes.......................   143
        Letter dated January 30, 2008............................    75
    Payton, Theresa, Chief Information Officer, Office of
      Administration, the White House, prepared statement of.....    62
    Swendiman, Alan R., Director, Office of Administration, the
      White House, prepared statement of.........................    54
    Waxman, Chairman Henry A., a Representative in Congress from
      the State of California:
        Interrogatories..........................................   113
        Prepared statement of....................................     7
    Weinstein, Allen, Archivist of the United States, National
      Archives and Records Administration, prepared statement of.    46



                       TUESDAY, FEBRUARY 26, 2008

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room
2157, Rayburn House Office Building, Hon. Henry A. Waxman
(chairman of the committee) presiding.
    Present: Representative Waxman, Towns, Cummings, Kucinich,
Davis of Illinois, Tierney, Clay, Watson, Yarmuth, Norton,
Sarbanes, Welch, Davis of Virginia, Burton, Mica, Platts,
Duncan, Issa, Foxx, and Bilbray.
    Staff present: Phil Schiliro, chief of staff; Phil Barnett,
staff director and chief counsel; Kristin Amerling, general
counsel; Karen Lightfoot, communications director and senior
policy advisor; David Rapallo, chief investigative counsel;
John Williams, deputy chief investigative counsel; Michael
Gordon, senior investigative counsel; Earley Green, chief
clerk; Teresa Coufal, assistant clerk; Caren Auchman, press
assistant; Kerry Gutknecht and William Ragland, staff
assistants; Larry Halloran, minority staff director; Jennifer
Safavian, minority chief counsel for oversight and
investigations; Keith Ausbrook, minority general counsel; Steve
Castor and Ashley Callen, minority counsels; Patrick Lyden,
minority parliamentarian and member services coordinator; Brian
McNicoll, minority communications director; Benjamin Chance,
minority clerk; and Ali Ahmad, minority deputy press secretary.
    Chairman Waxman. Good morning. The committee will please
come to order.
    Today's hearing focuses on whether President Bush and the
White House are complying with the Presidential Records Act.
    The Presidential Records Act was enacted in 1978 to ensure
that White House records are preserved for history and are
owned by the American people. It requires the President to
preserve the records that document the activities,
deliberations, decisions, and policies of the White House.
    The emergence and remarkable surge in popularity of e-mail
has presented problems in complying with the act. As members of
this committee know, President Clinton experienced these
problems. In 1994, he established the Automated Records
Management System to archive Presidential records, including e-
mails. But the system had technical flaws. For a period of
time, it would not preserve e-mails sent by officials whose
name began with the letter D.
    Well, in 2000, Dan Burton, who was then Chair of this
committee, alleged that the Clinton administration deliberately
lost and withheld e-mails from Congress. Mr. Burton held five
hearings on that issue and forced the White House to spend over
$11 million to reconstruct 200,000 e-mails.
    In the end, the overblown charges of wrongdoing were proven
false. The lost e-mails turned out to be the result of a few
technical glitches, not any intentional acts.
    The silver lining to the committee's investigation, though,
was that the problems in the Automatic Records Management
System were addressed. When President Clinton left office and
President Bush came into office, the White House had in place a
system for archiving White House e-mails that complied with the
Presidential Records Act.
    That is what makes the actions of the Bush administration
so inexplicable.
    President Bush's White House kept the Automatic Records
Management System in 2001. But in September 2002, for reasons
that we have never found an adequate explanation, the Bush
administration White House decided to replace the Automatic
Records Management System.
    In its place, the White House adopted a system that one of
its own experts described as ``primitive'' and carried a high
risk that ``data would be lost.'' The system also had serious
security flaws. Until the problem was corrected in 2005, all
officials in the White House had access to the archive system
and the ability to delete or alter existing information.
    The White House's own analysis of its system identified
over 700 days in which e-mail records seem either impossibly
low or completely nonexistent. This 2005 analysis was prepared
by a team of 15 White House officials and contractors.
    And these are not the only missing e-mails from the White
House. We also know that over 80 White House officials,
including some of the most senior officials in the White House,
routinely used e-mail accounts at the Republican National
Committee. The RNC didn't preserve e-mails for over 50 of these
officials and has few e-mails for any White House officials
prior to 2006.
    The result is a potentially enormous gap in the historical
record. Karl Rove, the President's closest political advisor,
was a prolific user of his RNC e-mail account. Yet, the RNC
preserved virtually none of his e-mails before 2004. The result
is that we may never know what he wrote about the buildup to
the Iraq war.
    In recent weeks, the White House has launched an all-out
attack on its own analysis of the missing e-mails. One White
House spokesman tried to claim that there were no missing e-
mails after all. Another senior White House official said she
had ``serious reservations'' about the accuracy of the White
House's previous work and that she had ``so far been unable to
replicate its results or to affirm the correctness of the
assumptions underlying it.''
    While many of us have grown used to the White House
attacking congressional or independent study that conflicts
with President Bush's policies, this is the first time I can
remember the White House using those same tactics on itself.
And it is remarkable.
    But that is not all. The White House is also refusing to
cooperate with the National Archives. For almost a year, the
nonpartisan National Archives has been urging the Bush White
House to assess the problem of missing e-mails and to take
``whatever action may be necessary to restore any missing e-
    The lack of cooperation became so severe that, last May,
the Archivist himself wrote to the White House Counsel, Fred
Fielding, to urge ``utmost dispatch'' in addressing the missing
    Yet in September 2007, the Archive's General Counsel
drafted a memo summarizing the White House's decision to ignore
the request of the Archivist. He wrote: ``We still have made
almost zero progress in actually moving ahead with the
important and necessary work that is required for a successful
transition. Our repeated requests have gone unheeded. Of most
importance, we still know virtually nothing about the status of
the alleged missing White House e-mails.''
    The Archives also asked the White House to start recovering
official e-mails that the Republican National Committee deleted
pursuant to its policy of regularly purging e-mails from its
servers. These repeated requests have also been rebuffed. In
fact, the RNC has informed our committee that it has no
intention of trying to restore the missing White House e-mails
from backup tapes containing past RNC e-mail records.
    My staff has prepared an extensive memorandum that
summarizes what we have learned through our investigation into
the missing White House e-mails so far, and I ask that this
memorandum and the documents it cites be made part of the
hearing record.
    I also----
    Mr. Issa. Mr. Chairman, I object. Reserving the right to
    Chairman Waxman. The gentleman is recognized on his
    Mr. Issa. Mr. Chairman, apparently, the memo cites an
interrogatory from a gentleman, Mr. McDevitt, and I object
because those interrogatories appear to have been essentially
adopted in lieu of testimony because they appear to support the
majority. And, by definition, if they are allowed to come into
the record, what we are effectively doing is preventing the
minority from having an opportunity to openly challenge what
seem to be, to us, inconsistent and self-serving statements.
    The fact is that we would like to have a clear hearing and
a clear understanding. We want to have all parties that may
have something to say not only say it, but be open to
reasonable cross-examination.
    Chairman Waxman. If the gentleman would permit, let me give
you a clear understanding of what happened. The White House
objected to our doing an interview with this person. They
suggested we do a set of interrogatories. We proceeded on a
bipartisan basis at the staff level to do exactly that. We now
seek to make this information public.
    I know that the Republicans now would say, well, we would
like to have an interview or deposition, but we followed the
rules. And that is what we are seeking today, is to disclose
what we have so far in following the rules.
    If the gentleman objects, he objects, and we will have to
have a vote for the committee at some point during the hearing.
But, as I understand, Mr. Davis does not object. I will yield
to him if he does, but----
    Mr. Davis of Virginia. Well, what we do object to is
putting the interrogatories in their entirety into the record,
for several reasons, and our staffs have talked about this.
Just as we do with all investigations, all non-White House
employees involved have been required to sit for transcribed
interviews or deposition, but Mr. McDevitt was not. The White
House's concerns were no different for his testimony than for
other witnesses that were put under that, but somehow the
majority was most accommodating to Mr. McDevitt.
    We were wondering whether Mr. McDevitt was able to avoid an
on-the-record interview because he supplied a version of the
story that pleased the majority that was critical of the White
House, and that was our concern. The White House's concerns
were no different for his testimony than for other witnesses.
    From 2002 to 2006, Mr. McDevitt was responsible for
managing the White House's e-mail archiving system. In his
opinion, 400-plus days of White House e-mails went missing.
This sensational charge is not supported by the evidence that
we have gathered. Though the course of the investigation----
    Chairman Waxman. Mr. Davis.
    Mr. Davis of Virginia. Yes.
    Chairman Waxman. Mr. Davis, let me interrupt you.
    Mr. Davis of Virginia. Sure.
    Chairman Waxman. And I am going to give you a full
opportunity to debate this question, but I want to respond and
then we will get further along with this.
    Mr. Davis of Virginia. Sure.
    Chairman Waxman. If there is objection, there is objection.
We won't include it in the record at this point, but we will on
a vote of the committee.
    Evidently, the Republicans are unhappy that Mr. McDevitt,
who worked at the White House, gave testimony they didn't like.
But we followed the rules that the White House set out, and the
Republicans were happy for us to follow those rules. And now
that they read the testimony, they would like to impeach the
fellow from the White House who said things that they didn't
    Mr. Davis of Virginia. Well, he is no longer at the White
    Chairman Waxman. Pardon?
    Mr. Davis of Virginia. He is no longer there.
    Chairman Waxman. He is no longer at the White House.
    Mr. Davis of Virginia. That is correct. In fact----
    Chairman Waxman. But the White House did not want him to
sit for a deposition, and that is why we did what we did. Ms.
Payton did not have an interview, as the Republicans are asking
that we should have had for Mr. McDevitt.
    But the Chair will move on and declare that this will not
be part of the record by unanimous consent, and we will renew
the debate and action by the committee at an appropriate time
on a motion to make this part of the record.
    Mr. Issa. Mr. Chairman, point of inquiry.
    Chairman Waxman. The gentleman will state his point of
    Mr. Issa. Does that mean that you are withdrawing your
unanimous consent at this time?
    Chairman Waxman. I will withdraw my unanimous consent. I am
withdrawing my unanimous consent request just as it pertains to
the interrogatories for Mr. McDevitt.
    Mr. Issa. So you are now moving that sans the references to
interrogatories, the rest will go forward?
    Mr. Davis of Virginia. Which is normal committee practice.
I mean, generally----
    Chairman Waxman. Is there objection?
    Mr. Issa. Mr. Chairman, I will dispense----
    Ms. Watson. Can you finish your statement, Mr. Chairman?
    Chairman Waxman. Yes?
    Ms. Watson. Can you finish your statement and then----
    Chairman Waxman. I finished my statement. We are going to
put in the information except for the interrogatories.
    Mr. Issa. Mr. Chairman, concluding my time, because we were
all speaking, I guess, on my time----
    Chairman Waxman. Is there an objection?
    Mr. Issa. Mr. Chairman, reserving. I would only like to
clarify that the minority did not sign off, so it was not a
bipartisan procedure.
    Chairman Waxman. That is not a proper reservation. Either
you are for letting this go on the record as Mr. Davis has
suggested we do, as ordinary committee activities----
    Mr. Issa. Without reference.
    Chairman Waxman [continuing]. Without reference to the
interrogatories, or you agree to it. Give us your--you have a
reservation. Give us your withholding of unanimous consent
request or agreement to the unanimous consent request.
    Mr. Issa. Without that, I agree.
    Chairman Waxman. Then that will be part of the record.
    Now I would like to continue with my opening statement.
    We have this extensive memorandum that summarizes what we
have learned through our investigation into the missing White
House e-mails, and I also urge members of the public to review
this memorandum carefully. E-mail archiving by its nature is a
complex and technical subject. The memorandum provides a guide
to what we have learned from our interviews of White House
officials and our review of over 20,000 pages of internal White
House and Archives documents. That is now in this record.
    I am determined not to make the same mistakes some of my
Republican colleagues made 8 years ago. I don't want to jump to
any conclusions or make any sensational allegations of
wrongdoing without any evidence.
    At the same time, the White House's actions make absolutely
no sense. There is an old saying--if it ain't broke, don't fix
it--but that is exactly what the Bush White House did to the
automated record system. It had a system that archived its e-
mails and it intentionally dismantled an effective system and
replaced it with a primitive alternative that just didn't work.
    It initiated its own study of missing e-mails in 2005 and
now derisively attacks its own work as incompetent and grossly
    It has continually resisted not just the efforts of this
committee, but also those of the National Archives, which has
the responsibility to carry out the Presidential Records Act.
    Well, none of this makes any sense, which is why we are
holding this hearing today and why this hearing is so
    So I look forward to what our witnesses have to say so that
we can finally start making progress on this important open
Government issue.
    [The prepared statement of Chairman Henry A. Waxman and
supplemental hearing information follow:]





























    Chairman Waxman. The Chair would now like to recognize Mr.
Davis for his opening statement.
    Mr. Davis of Virginia. Thank you, Mr. Chairman.
    Let me say at the front I think the committee is entitled
to the e-mails, and we want to work with you to get them,
absent some showing of privilege, which they have not come
forward with yet because they can't seem to find them. So I
don't think there is any disagreement on our wanting to be able
to get to that; it is the characterizations which we differ in
our opinion.
    Just to dwell on Mr. McDevitt for a minute and why we feel
as passionate as we do about this, from 2002 to 2006, he was
responsible for managing the White House's e-mail archiving
system. In his opinion, 400-plus days of White House e-mails
went missing, but this sensational charge is not supported by
the evidence that we have gathered. Through the course of this
investigation, we have learned that many of these so-called
missing e-mails were simply misfiled.
    On Tuesday of last week, the majority issued a set of 47
interrogatories to Mr. McDevitt and, 3 days later, he has
replied with 25 pages of responses, a very quick turnaround,
indeed, unless he had been supplied with the questions ahead of
time. His robust response is based on dated information, since
he left the White House approximately 18 months ago. A lot of
facts about these so-called missing e-mails have changed, and
continue to change.
    Our staff has really not had the opportunity to examine Mr.
McDevitt on the record under oath and, consequently, his
interrogatory responses, if entered into the record as is,
would remain unchallenged, and that is not appropriate.
    We spoke with Mr. McDevitt on Sunday afternoon. He remains
unusually passionate about his time at the White House Office
of Administration. We can't understand his reluctance to be
interviewed on the record or why he wasn't compelled,
yesterday, for testimony on the record.
    You have been very accommodating to this witness. Our staff
has made it clear to your staff we wanted to examine him on the
    His views on the situation, in my judgment, is colored by
his apparent personal investment in various technology
decisions that he made, and many of these were ultimately
rejected. Without the opportunity to test Mr. McDevitt's views
on the record, we remain skeptical of the content of his
interrogatory responses, and we think the committee should as
    The preservation of essential records, though, is a
Government-wide responsibility and a growing challenge with so
much more of the public's business done today using electronic
media rather than paper. The massive proliferation of digital
records confronts each branch of Government with complex and
potentially costly questions about which records to keep, how
long to keep them, and how best to store and index them for
    But it appears today's hearing may be less about preserving
records and more about resurrecting this claim that the White
House lost millions of official e-mails. It is a charge that is
based on a discredited internal report conveniently leaked to
the media. Information gathered since then has forced
administration critics to back away from the politically
charged allegation and acknowledge the less sensational but far
more probative technical realities that are at work here.
    Regarding the capabilities of the White House's information
technology infrastructure, the facts are not all in yet, and in
that respect this hearing would be viewed as premature. But we
do know this much: During the White House migration from Lotus
Notes to a Microsoft e-mail system in 2002, some archive files
may have been mislabeled, making them difficult to find using
routine search protocols.
    A preliminary study in 2005 using these old protocols
seemed to show 473 days of which no e-mails were sent at all.
The White House has been very open with our staff about the
technical flaws in that early search and they have devoted
substantial technological resources to solving the e-mail
    One of our witnesses today, White House Chief Information
Officer Theresa Payton, is leading that effort. Last Friday,
she briefed the committee staff that the 473-day gap has been
reduced to 202. So a substantial portion of the missing e-mails
appear not to be missing at all, just filed in the wrong
digital drawer. The restoration recovery process continues and
should continue.
    But the committee's voracious appetite for White House e-
mails raises another issue worth discussing today: the
boundaries between legitimate oversight and counterproductive
intrusion into the operations of a co-equal branch of
    Any frustration at the White House's inability to
instantaneously produce every conceivable stream of electrons
has to be tempered by both the legal rights and prerogatives of
the Executive and by the technical realities of modern
Government recordkeeping.
    The Presidential Records Act does not require the White
House to keep every paper or electronic document generated in
the course of daily business. The law requires Presidential
records to constitute adequate documentation of official
deliberations and decisions.
    I expect we will hear today that the White House is well
aware of its obligations under the Presidential Records Act and
other laws, and cognizant of the duty to preserve and provide
adequate Presidential records for the National Archives.
    In terms of the scope of the oversight, we should keep in
mind the power of inquiry, when used injudiciously, can become
the power to distract or to disrupt those trying to execute the
laws that we write.
    Remember where all this started: an investigation of a GSA
administrator. From there we moved to a far broader inquiry
into the Hatch Act compliance at cabinet departments and a
subpoena to the Republican National Committee for e-mails from
the White House. From that inquiry we came to this hearing to
discuss e-mails about e-mails.
    At some point this risks becoming investigation for its own
sake or for the sake of private plaintiffs looking to use the
committee to conduct non-judicial discovery in pending lawsuits
against the Government. Nor is it the best use of our time and
resources to attempt to micro-manage executive branch
activities, like the next White House transition, based on
groundless suspicions or incomplete investigations into missing
    Nevertheless, our witnesses can help us understand the
intricacies and challenges of electronic records preservation.
We welcome their testimony this morning, and I want to repeat,
I think, as, institutionally, the legislative branch does have
the right to pursue these and to get these e-mails, Mr.
    Thank you very much.
    [The prepared statement of Hon. Tom Davis follows:]

    [GRAPHIC] [TIFF OMITTED] T4697.029

    [GRAPHIC] [TIFF OMITTED] T4697.030

    Chairman Waxman. Thank you very much, Mr. Davis.
    Before we recognize our witnesses, we are going to have a
private discussion and set a time for a debate and a vote on
adding the interrogatories to the record, but I just want to
give clarification of what had transpired.
    On January 30th, the committee wrote to Mr. McDevitt asking
him to come in for an interview. He was responsive and
immediately scheduled an interview for Monday, February 11th.
The White House then contacted Mr. McDevitt and instructed him
not to discuss with the committee broad areas relevant to our
investigation, including ``any deliberative discussions
involving the participation of OCIO management.''
    So Mr. McDevitt e-mailed us and he said, based on the
direction of the White House, ``there is practically nothing
that I am authorized to discuss with the Committee.'' As a
result, given these limitations placed on us by the White House
counsel, he said he would have to decline our request for an
interview. So both sides requested this interview.
    Over the next week, minority and majority staff discussed
the committee's interest in obtaining information from Mr.
McDevitt, and on February 14th our staffs jointly agreed to
send Mr. McDevitt questions in writing, allowing him to share
his responses with the White House counsel. So together our
staffs sent him questions. He responded in writing to those
questions. The White House had a chance to review his answers
and they cleared them without any redactions.
    Now, after we got the answers from Mr. McDevitt, his
responses this past weekend, the minority staff indicated they
wanted to speak with Mr. McDevitt in person. Nevertheless, even
at this late date, our staff went to great lengths to
accommodate the minority. After they read his written reports,
they didn't feel comfortable with it. So, on Sunday night,
minority and majority staff jointly called Mr. McDevitt to see
if he would be willing to come in for an interview or
deposition. He stated he still had the same concerns about the
White House instructions. However, he went on to answer
questions from the minority, the Republicans, for an hour and a
half, answering every single question they had.
    Despite this second opportunity to question Mr. McDevitt,
the minority now says it is somehow unfair to use any
information provided by Mr. McDevitt because they didn't get an
opportunity to question him. Well, they had an opportunity 2
weeks ago. They got another opportunity on Sunday night, which
they fully exhausted.
    It seems to me if the minority has a beef with anyone, it
should be the White House Counsel's Office, since they are the
ones who told Mr. McDevitt he wasn't allowed to speak with us
in the first place.
    Mr. Davis of Virginia. Mr. Chairman, let me just quickly--
    Chairman Waxman. Yes.
    Mr. Davis of Virginia. We will talk about this and we will
find an accommodation, but let me just say that there were six
other witnesses that were subject to the same White House
ground rules, and they were brought in for on-the-record
interviews and cross-examination. Mr. McDevitt was the only one
who was accommodation, we believe, because he fit the story you
wanted to tell. And we think that there is another side to that
and we would like that opportunity. I don't care what the White
House Counsel's Office says on this. We are speaking to this as
a review committee.
    But we can have this discussion down the road and try to
reach an accommodation, and hopefully we can move ahead with
our witnesses.
    Chairman Waxman. But I might point out that the other
witnesses agreed to come in. Mr. McDevitt refused to come in
for an interview. And he did that because the White House told
him there was nothing he could say to us in an interview. So we
proceeded in the way that seemed fit.
    I know that now that the minority has looked at what he has
to say, they would like to see if they can impeach him, because
they don't like what he had to say.
    Mr. Davis of Virginia. Well, there are inconsistencies with
what he said because he has been gone for 18 months.
    Chairman Waxman. Well, let's get the witnesses here today
on record and we can ask them questions about what Mr. McDevitt
had to say and probe into this whole thing further. But the
reality is that there are a lot of e-mails--which is the
primary way people send communications to each other--from high
officials in the White House that cannot be located, and that,
as I understand it, is not just what we are saying, what Mr.
McDevitt has said, but the Archives as well.
    And from the Archives we are pleased to have Dr. Allen
Weinstein. He is the ninth Archivist of the United States and
leads the National Archives and Records Administration.
    We also have Gary M. Stern, the General Counsel for the
National Archives and Records Administration.
    Sharon Fawcett is the Assistant Archivist for Presidential
Libraries at the National Archives and Records Administration.
    Alan R. Swendiman is the director of White House Office of
    And Theresa Payton is the Chief Information Officer at the
White House Office of Administration.
    We are pleased to welcome all of you.
    Mr. Davis of Virginia. Mr. Chairman, can I just make one
point? We join with you in wanting to get all the e-mails and
not giving up. I just want to make that clear. This is not an
effort to stop the disclosure of these. We want to get at
these. We really object to the characterization of how this
came. I would think much of this is technical and hopefully
this hearing will be able to bring both sides an opportunity to
bring that out. Thank you.
    Chairman Waxman. Well, I hope so, because I think, on a
bipartisan basis, we want to find out where those e-mails are
and get them. I don't know what characterization you object to,
because I have been very careful not to make any
characterization, unlike the situation we had in this committee
in the 1990's.
    Ladies and gentlemen, it is the policy of this committee
that all witnesses that testify before us testify under oath,
so I would like to ask you, if you would, to please rise and
raise your right hands.
    [Witnesses sworn.]
    Chairman Waxman. Thank you.
    The record will indicate that each of the witnesses
answered in the affirmative.
    Dr. Weinstein, why don't we start with you?
    All of you have sent prepared statements, or those of you
who have sent prepared statements. I want to assure you that
they will be in the record in full. We would like to ask, if
you would, to try to limit the oral presentation to 5 minutes.
You will have a clock that will be indicated on the table.
Green, then after 4 minutes there will be a yellow; and then
after 5 minutes is complete it will turn red. If you are not
finished by that po int, we would like to ask you to summarize
the last part of your testimony.
    Mr. Weinstein. Can I ask you before I start, Mr. Chairman?
    Chairman Waxman. Yes.
    Mr. Weinstein. I will be making the only opening statement
for the Archives. I gather my two colleagues from the White
House will both make statements. Does that mean I get 10
    Chairman Waxman. Well, go ahead and take whatever time you
need. Under those circumstances, it seems reasonable.
    Mr. Weinstein. Thank you.



    Mr. Weinstein. Good morning, Chairman Waxman, Ranking
Member Davis, and members of the Committee on Oversight and
Government Reform. Thank you for calling this hearing and for
your continued attention to the management, protection and
preservation of Government information.
    The National Archives General Counsel Gary Stern, Assistant
Archivist for Presidential Libraries Sharon Fawcett accompany
me this morning and will be available to assist me in
responding to questions from the committee.
    I am pleased to appear before you today to discuss the work
of the National Archives and Records Administration [NARA], in
managing Presidential papers at the time of transition from one
President's administration to the next. I will summarize my
remarks and ask that my full statement be included in the
    Let me begin by discussing preparation for the transition
in January 2009 of the Presidential records of the George W.
Bush administration to the National Archives. National Archives
has a long and successful history of moving Presidential
records and gifts from the White House to the custody of the
Archives for ultimate deposit in the Presidential library. We
have done this work under the exigent circumstances of current
departure, as in the case of Presidents Kennedy and Nixon; the
foreshortened notice of one-term administrations, such as
George H.W. Bush; and the more predictable pace afforded by a
two-term President, for example, William Jefferson Clinton.
    The National Archives begins preparing for an eventual move
from the first day of an administration. However, as you might
imagine, Mr. Chairman, most of the actual work takes place in
the last year of a President's term. We work closely with the
White House Counsel's Office, the White House Office of Records
Management, the National Security Council, the White House
Photo Office, the Office of Administration, and other
appropriate White House offices in accounting for all
Presidential records--textual, electronic, and audio-visual--
and in arranging for their physical transfer to the National
    We also work with the White House Gift Unit in inventorying
and packing the thousands of foreign and domestic gifts that
will be included in the holdings of the Presidential library
and museum. Traditionally, the Department of Defense also
supports the National Archives in packing and transporting the
records from Washington the library site.
    Beginning in the summer of 2007, National Archives staff
attended several preliminary meetings with White House staff to
discuss the transition process. In late fall, Archives staff
began to meet with IT staff from the Office of Administration
to discuss the transfer of electronic records. Archives staff
has also met with the staff of the National Security Council
regarding its classified electronic records, which are
maintained separately from the systems managed by the Office of
Administration. We expect that transition meetings will
continue on a regular basis and look forward to working with
White House staff in ensuring a smooth move of the massive
amount of records.
    The National Archives has leased a temporary facility in
the Dallas, TX area that will serve as the archival repository
for these records until the George W. Bush Presidential Library
is completed. We have already begun to hire and train archival
staff, along with a museum registrar, who will take charge of
the records and gifts as they arrive. We expect to continue the
hiring of full staff when we receive our fiscal year 2009
    Now I would like to turn to your question on the National
Archives' actions concerning the possibility of missing White
House e-mails. The Presidential Records Act [PRA], does not
give the Archivist the authority--formal or oversight
authority--over how an incumbent President performs his records
management responsibilities, but, rather, vests records
management authority entirely and exclusively with the
incumbent President. Nevertheless, throughout the course of an
administration, when we are invited to do so, both I and my
staff try to provide our best guidance and advice on matters
affecting White House records management.
    When we read the press reports in April 2007 that the White
House had apparently acknowledged that a large number of e-
mails might be missing from the Executive Offices of the
President, the EOP system, we immediately began to enquire
about this matter with White House staff. The National Archives
made similar inquiries in 2006 upon learning of press reports
that Special Council Patrick Fitzgerald had reported on e-mail
archiving problems with the Office of the Vice President's
records. Some time later in April 2007, White House staff told
us that a chart prepared in 2005 indicated that there might be
some missing e-mails, but that no one within the Executive
Office of the President [EOP], had been able to validate the
chart's results. My staff was further informed that efforts
would be made to corroborate whether any e-mails were actually
    In addition, because the EOP mail system contains records
governed under both the Presidential Records Act and the
Federal Records Act [FRA], on May 6, 2007, I sent a standard
letter to the Director of the White House Office of
Administration requesting a report on the allegations of
unauthorized destruction of Federal records. This letter has
been provided to the committee.
    To this day, I have not received a written reply to the May
6, 2007 letter. We have been diligent in requesting periodic
updates on the status of the White House review of these
allegations and the possibility of missing Federal and
Presidential e-mails. The White House has responded regularly,
if inconclusively, that its review is still continuing.
    Further, we have made our views clear, both to the White
House and to this committee, that in the event e-mails are
determined to be missing, it is the responsibility of the White
House to locate and restore all the e-mails, probably from the
backup tapes, and that such a project needs to begin as soon as
possible. The National Archives has also emphasized that
supplemental congressional funding to the White House will
almost certainly be necessary for such a restoration effort.
    A similar situation occurred, as you mentioned, Mr.
Chairman, near the end of the Clinton administration with its
Automated Records Management System [ARMS], and the Office of
Administration of the White House took full responsibility at
that time in restoring an estimated 2 million e-mails. Because
of the problems that occurred with the ARMS system during the
Clinton administration, the National Archives recommended to
the incoming George W. Bush administration that it replace ARMS
with a new electronic records management application for its e-
mails as soon as possible.
    The Bush 43 White House expressed interest and invited the
National Archives to work with the Office of Administration in
developing the requirements for a new system. The National
Archives staff worked with the Office of Administration from
late 2001 until the summer of 2004 on what came to be known as
the proposed Electronic Communications Records Management
System [ECRMS]. The National Archives staff reviewed
deliverables and documentation produced as part of this system
design effort, with our primary concern being to facilitate the
transfer of these electronic records at the end of the
    In the fall of 2006, the National Archives learned that the
Office of Administration had decided not to implement ECRMS. In
early 2007, the National Archives began meetings with the
Office of Administration to discuss how the Office proposed to
manage Executive Office of the President e-mails in
anticipation of the upcoming transition. The National Archives
was not informed about the possibility of missing e-mails at
this time.
    Mr. Chairman, this concludes my testimony. Thank you for
your attention. I am happy to answer any questions that may
    [The prepared statement of Mr. Weinstein follows:]

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    Chairman Waxman. Thank you very much, Mr. Weinstein. I
assume Mr. Stern and Ms. Fawcett are here to answer questions
that we may have.
    Mr. Weinstein. Of course.
    Chairman Waxman. Ms. Payton, let's hear from you next. Or
would you prefer Mr. Swendiman to go next? There is a button on
the base of the mic. Be sure it is pushed in and close enough
to you to pick it all up.


    Mr. Swendiman. Good morning, Mr. Chairman, Ranking Member
Davis, and members of the House Committee on Oversight and
Government Reform. I am Alan Swendiman and I currently serve as
Special Assistant to the President and Director of the Office
of Administration. Thank you for inviting me to participate in
this hearing. Accompanying me is Theresa Payton, who is the
Chief Information Officer for the Office of Administration.
    I am pleased to appear before you today on the subjects of
e-mail records keeping practices at the Executive Office of the
President during this administration and the status of
Presidential transition planning in relation to records of this
administration. I will summarize these remarks and ask that my
full statement be included in the record.
    I have served as Director of the Office of Administration
since November 27, 2006. OA's mission is to provide common
administrative and support services to the EOP.
    The Office of the Chief Information Office is one of the
operating units of OA. Among its important functions, OCIO is
responsible for providing all EOP components with unified
enterprise services. Certain of the subjects that the committee
may ask today are within the purview of the OCIO, and Ms.
Payton may speak to them. I will direct my remarks principally
to OA's efforts on the important subject of Presidential
transition planning.
    Presidential records are the property of the U.S.
Government and OA takes very seriously its responsibilities for
the transfer of records to the National Archives. These
responsibilities derive in significant measure from the
Presidential Records Act and the effective fulfillment of these
responsibilities is important to the continuity of the
presidency as an institution and for the Bush presidency, and
we are focused on making this transition process as smooth and
cooperative as possible.
    Toward that end, transition-related meetings between NARA
and White House began in approximately the summer of 2007. At
that time, NARA noted and welcomed what it described as EOP's
early engagement on transition and Presidential records issues.
Since that first meeting, there have been at least eight
meetings with NARA and numerous internal meetings. For example,
NARA has met with the OA Offices of the Chief Financial
Officer, the Chief Facilities Management Officer, and the Chief
Operating Officer to receive records-related functional and
operational briefings and to ask questions. NARA and OA are
committed to continuing to meet, and, in fact, the next meeting
is this Friday, February 29th. Through these meetings, NARA
will learn about the dozens and dozens of computer applications
at the EOP that may have records subject to PRA which will need
to be transferred to NARA.
    Now, the upcoming Presidential transition is going to be a
complex one, involving new technologies and new people. These
complexities are heightened by the existing cyber threats, of
which this committee is undoubtedly aware, and cyber security
considerations impact, among other things, the way we are able
to safely transfer records to NARA.
    This will be the first transition in which OA, as an
entity, has been subject to the PRA, and OA is fully engaged in
that process. We have already seen issues arise as to whether
certain materials are records or non-records under the PRA. One
particular challenge facing the institution is the necessity of
identifying and making available in some form records that will
be needed for the 44th President and his or her staff.
Financial records, procurement records, leases, blueprints and
other property records, security records, and personnel records
are just a few of those kinds of records.
    From this summary, we trust that the committee can see that
a lot of predicate work has begun and is ongoing. We have
approximately 11 months remaining to work on this transition,
and we are committed to making sure that all the Presidential
records that we have transferred to NARA are transferred at the
end of this administration.
    As a final matter, I understand that the committee has
enquired about whether EOP e-mails may not have been properly
preserved between 2003 and 2005, and the potential implications
on transition should it be determined that such e-mails are
missing. The potential discovery of this issue and the
immediate response to it, of course, predated my service as OA
Director. The OA staff, including Ms. Payton, can discuss this
issue in more detail. But what I can say is this. I am proud of
the work that they have been doing and continue to do under the
leadership of Ms. Payton in order to determine whether any such
e-mails are missing. It is a complex process, one that takes
time to do right and one that we have not taken lightly.
    Mr. Chairman, this concludes my statement. Thank you for
your attention, members of the committee, and I would be
pleased to answer any questions.
    [The prepared statement of Mr. Swendiman follows:]

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    Chairman Waxman. Thank you very much, Mr. Swendiman.
    Ms. Payton, do you have a statement as well?
    Ms. Payton. Yes.


    Ms. Payton. Good morning, Chairman Waxman, Ranking Member
Davis, and members of the committee. Alan did touch a little
bit on the OCI role, so I would like to talk to you a little
bit about some of the services we offer.
    I am Theresa Payton, and I am the Chief Information Officer
in the Office of Administration Executive Office of the
President. I have been in this role since mid-May 2006, and it
has been an honor and a pleasure to serve.
    Some of the services that we provide to the EOP, as Alan
mentioned, are to the 12 components that comprise the Executive
Office of the President. There are over 3,000 customers in
those 12 components and some of the services that we provide to
them include, but aren't limited to: office automation;
intranet support; 24 by 7 production support, should they need
it; desktop support; we do continuity of operation support;
disaster recovery backup information; and we are also
responsible for the e-mail messaging system for the sensitive
but unclassified part of the EOP network; and we are also
responsible for the records keeping of all of those e-mails and
making sure we have a successful transition to NARA at the end
of the Presidential transition.
    I did provide a detailed written testimony that I
understand from you, Chairman Waxman, will be in the record, so
I just want to give a few summary comments before I turn it
over for questions.
    I wanted to focus on the work primarily that we have been
doing from late 2006 up until today and give you a little bit
of explanation about the leadership determination of the people
that I work for, as well as the people that work for me in the
Office of the Chief Information Officer.
    We have undertaken three tracks since late 2006 until
today. The first track involves people and process; the second
track involves improving the current technology we have in
place; and then the third track is what we are calling the
longer view. So this is about getting a more comprehensive
technology platform in place for archiving records keeping, as
well as legal searches.
    Under people and process, I will just give you a couple
examples of some of the things we have been able to accomplish.
First of all, we recognized we have a slim staff, you know, we
are a small but mighty team supporting the 3,000 customers. We
have roughly 55 Federal employees and roughly 60 contractors to
support these 3,000 customers. We took a look at the resource
allocation and the manpower stacked up against records keeping
versus the other parts of the operation and the mission that we
serve, and in 2006 we had roughly the equivalent of 10 of our
115 employees, from a manpower perspective, dedicated to
records keeping. We have ramped that up. We looked at our
mission. We have slimmed down some of the services we provide
in some other parts of the mission and we ramped that up in
2007. We had the equivalent of manpower of about 22 people out
of the 115 focused on records keeping and we have ramped that
up a little bit more for 2008, and we are currently running at
about 23.5. So that is an example of some of the people
    From a process improvement standpoint, we put in place some
improved processes while we are on the current technology we
are, and to make sure that on a go-forward basis we are
accounting for all of the information. So one example of an
improvement that we put in place last year is our weekly
report. So the messaging team does daily work. If they have any
technology glitches, they note those in a log. Then there is a
second team who does a QA of the work they are doing to make
sure that the messages that went into the Microsoft Journal
that were then automatically moved through a software program
that we have into Microsoft Personal Storage Tables [PSTs], a
second group takes a look at that work and also, if they note
any technology glitches, notes that in the log.
    On a weekly basis an executive summary report is produced
for myself and for our Office of Administration General
Counsel, and this provides transparency that wasn't available
before on a weekly basis about any technology glitches that may
have occurred, the mediating steps that needed to be taken or
still need to be taken, and then a weekly report as to where
they are in their progress.
    This has provided a couple different tools for us to use,
the first being the transparency, and knowing, if there is a
glitch, the people need to be focused on fixing that. The
second is it actually gives us historical information so, from
a go-forward perspective, if somebody is looking back and
trying to look for e-mail records on certain dates, they
actually have a place they can go look, a comprehensive place
that tells them what occurred, what components, and what was
done to mitigate that risk. The other is a learning tool for
the team. So we are in the process of rolling out what is
known--and the Government is adopting it--Six Sigma, where you
look for opportunities to reduce defects. And by doing this
weekly report, we are collecting statistics so they can look
backward on trends and look for opportunities to reduce future
defects. So that is an example of a process improvement.
    One of the areas you are probably going to be the most
interested in, though, is going to be the technology
improvements we have made on our existing technology. As I
mentioned before--and I can go into more detail during the
questions--we have e-mail that goes into the Journal, the
Microsoft Journal. It is automatically moved through a program
that we have in place since 2005 into the PST archive for
records keeping, and what we have been doing is actually re-
baselining that entire inventory of the records. We felt like
we had to do this. We found some different technology glitches
in some of some tools that had been wonderful workhorses for
EOP, but as we were trying to do the analysis to try and figure
out what was going on with the problem days and we were having
problems replicating some and some were replicating, we felt it
in the best interest to upgrade and update some of those tools
and implement those tools around the records keeping inventory
and statistical analysis process.
    We are in the early phase. We actually have three phases we
are implementing for this. We are in the early phase of that
process, where we have just started to get some early results.
They have not had a quality assurance check on them, so the
results are very preliminary and they are not conclusive. Some
of the promising trends that we have been seeing is we have
identified more e-mails for that exact time period that was
looked at in 2005 than was previously identified. We have been
able to identify and locate e-mails with an exchange for days
that were previously red. There are, in this phase one, some
days that still show as red. That is where phase two is going
to come in. From a phase two perspective, we will be looking at
the message level. And I can get into more detail on that
during the Q&A, but in phase two it is our desire and our hope
to eliminate all or most of the red days and low volume days by
being able to read the information down at a more granular
    When we get through a QA process in phase one and phase
two, we will be sitting down with NARA to talk through our
findings, where we still have anomalies, if we have any, and
when we finish phase two we will sit down with NARA, and if
there are any anomalies remaining, that is where we will have
the conversation around a records restore, most likely looking
at our disaster recovery backup tapes.
    The OCIO staff is incredibly dedicated. They are working
very hard on this effort. Everyone on the team wants a
successful NARA transition. We want to make sure we get all of
the e-mail records over to NARA at transition.
    Thank you. And I would be glad to take any questions.
    [The prepared statement of Ms. Payton follows:]

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    Chairman Waxman. Thank you very much.
    By bipartisan agreement on the committee, the chairman will
control 15 minutes of questioning and then Mr. Davis will
control 15 minutes on his side. So I will start off the
    Mr. Weinstein, I want to ask you some questions first. This
hearing is about the White House compliance with an important
open Government law, the Presidential Records Act. This act
requires the President to ensure that his activities,
deliberations, decisions, and policies are adequately
documented. The act makes clear that a President's records
belong to the American people, not to the President or his
advisors or the Republican Party. As the Archivist, how
important do you think the Presidential Records Act is?
    Mr. Weinstein. It is incredibly important, Mr. Chairman,
and I think all of us agree. Whatever our politics are, we are
all in agreement on that point.
    Chairman Waxman. It is important because this preserves the
records not only for history, but for the next administration.
    Mr. Weinstein. The records belong to the American people,
and that best preserves it, yes.
    Chairman Waxman. Thank you. Now, over the last year,
serious questions have been raised about the White House
compliance with this Presidential Records Act. We have learned
about two violations of the act that appear to be serious. One
involves the extensive use of Republican National Committee e-
mail accounts by White House staff and the other involves the
failure to archive e-mails sent through the official White
House e-mail system. I want to start out by asking you about
the use of these RNC e-mail accounts to conduct official White
House business.
    This committee first started asking questions about the use
of RNC e-mails last March. As we investigated, we learned three
facts: one, many senior White House officials, including Karl
Rove and Andrew Card, had RNC e-mail accounts; two, these
officials made heavy use of these accounts, including for
official purposes, such as communicating about Federal
appointments and policies; and, three, the RNC preserved almost
none of these e-mails from President Bush's first term and only
some of the e-mails from his second term.
    Dr. Weinstein, the documents that we have seen reveal that
the Archives was concerned about these RNC missing e-mails as
well. Can you explain why?
    Mr. Weinstein. Well, I wish I had all the facts at this
stage in the game, Mr. Chairman, to----
    Chairman Waxman. Can you speak up?
    Mr. Weinstein. I wish I had all the facts at this point to
discuss this issue, but the fact is that it has been our
understanding that the White House has been working with the
RNC to try to restore PRA e-mails that were created.
    Chairman Waxman. Well, perhaps they are or they are not; we
are going to get into that. But how concerned are you that we
may not have the RNC e-mails from senior White House staff?
    Mr. Weinstein. Well, Mr. Chairman, I am concerned about the
problems that we might have with any group of records,
including these. I want the fullest, I think the American
people want the fullest possible account of any administration.
    Chairman Waxman. Karl Rove was a key advisor to the
President. We also know he was an extensive user of the RNC
account. Mr. Rove is reported to have sent and received ``about
95 percent'' of his e-mails through his RNC account. His
secretary, Susan Ralston, confirmed for the committee that Mr.
Rove used his RNC account extensively.
    When we asked the RNC what kinds of records they had, they
told us they had virtually no e-mails from Mr. Rove before
November 2003. They had virtually none of his e-mails for 2001,
2002, and most of 2003. Well, these years were in many years
the defining years for the Bush administration; they include
the critical months when President Bush was making the case for
war in Iraq.
    Are you concerned about the loss of Mr. Rove's e-mails for
these years, Mr. Weinstein?
    Mr. Weinstein. Mr. Chairman, I am concerned about the loss
of e-mails that are White House e-mails, no matter what the
system they are involved in. I am concerned about maintaining
the fullest possible Presidential records. I should add,
perhaps, that in listening to Ms. Payton's testimony, we are
still awaiting the completion at the White House of this
    Chairman Waxman. We are too, but I want to ask you about
these RNC e-mails first, before we get into that.
    Mr. Weinstein. Before we go any further, though, my counsel
has dealt with this issue to a very great extent. I would ask
Gary Stern if he would like to add anything.
    Chairman Waxman. Mr. Stern.
    Mr. Stern. Yes. As we have discussed with the committee
staff and with the White House, our view is Presidential
records exist and must be preserved whatever system they are
used on. So to the extent they were used on a non-White House
system, it is still the responsibility of the White House to
preserve them. We understand that, also, White House officials
create non-Presidential records, and then, for those records,
it would be appropriate to use a non-White House system like
the RNC system for non-Presidential records involving political
campaign and all.
    Chairman Waxman. Well, we know Mr. Rove used most of his e-
mails, whatever the subject, on RNC accounts. So if we have a
deletion of Mr. Rove's RNC e-mail as the rule for the White
House, not the exception, we don't know what he had to say. In
fact, the committee learned that the RNC retained no e-mail
messages for all of 51 of the 88 White House officials with RNC
e-mail accounts. We don't know whether they were personal,
political, or official Government. The records appear to be
woefully incomplete for the remaining 37 officials. For
example, the RNC retained e-mails from before 2006 for only 14.
So we had 51 of the 88 White House officials using e-mail
accounts and the records are incomplete except for 14 of these
    Mr. Stern or Dr. Weinstein, you and others at the National
Archives have made repeated inquiries to the White House about
this problem and the White House appeared to tell you it was
taking all this very seriously. I want to read some notes from
a May 21, 2007 meeting.
    Your staff asked what steps the White House was taking to
restore these e-mails and here is what your staff said they
were told, ``We then asked about the RNC e-mail issue. They,
the White House, are working with the RNC and looking at this
issue. They are exploring how they will try to capture the
Presidential record e-mails. This will be a separate
restoration effort from the EOP e-mail restoration.''
    Dr. Weinstein, can you tell us what the current status is
of the recovery effort? Specifically, has the White House taken
steps to restore RNC backup tapes?
    Mr. Weinstein. Well, I hate to say this, Mr. Chairman, but
I am afraid that is a question that is going to have to be
asked to Ms. Payton and Mr. Swendiman simply because we have
not been given that information. We were told by her testimony
that the process is nearly complete, which is a phrase that she
    Chairman Waxman. You have been told by the White House that
the process is nearly complete to get the RNC e-mails?
    Mr. Weinstein. It is in Ms. Payton's testimony.
    Chairman Waxman. Mr. Stern, do you want to respond to that?
    Mr. Stern. On the RNC system, we have enquired periodically
and we were under the impression they were still working with
the RNC and some effort would be undertaken to recover whatever
could be recovered from either backup tapes or from laptops,
individual hard drives. We heard today that maybe the RNC is
not doing that, and that would be a concern and a problem and
disappointment. If it is a funding issue, that is where
Congress would potentially need to come in and say if there are
Government records there, they----
    Chairman Waxman. So you were relying on the White House
telling you that they are going to make sure they get all the
records, including from the RNC.
    Mr. Stern. That is correct, which is their responsibility.
    Chairman Waxman. Yes. And I can understand why you would
think that they should be the one doing it. But we talked to
the RNC yesterday and they told us that the White House has
taken no steps to obtain backup tapes. The White House hasn't
begun any type of restoration effort and the tapes haven't been
touched. I am sure you are concerned about that, is that
    Mr. Weinstein. More than concerned about that, Mr.
Chairman. Obviously, if that is the case, this should be looked
into as soon as this hearing is over.
    Chairman Waxman. Well, Ms. Payton and Mr. Swendiman, I
would like to get your perspective. The White House told the
Archives last May that it was exploring a restoration of RNC e-
mail, but when we checked, the RNC told us the White House
never even obtained the RNC's backup tapes. Why isn't the White
House following through to recover and preserve these records?
    Ms. Payton. Chairman Waxman, since you mentioned me first,
I will go first. I have responsibility for the Executive Office
of the President network and e-mails, so I am, unfortunately,
unqualified to talk to you about the RNC restore; I am not part
of that process. If, at some point, there were----
    Chairman Waxman. You are not part of the process to get the
RNC e-mails?
    Ms. Payton. No, sir, I am not. No, sir, I am not.
    Chairman Waxman. OK, well, maybe Mr. Swendiman is part of
that process.
    Mr. Swendiman. As part of the Office of Administration, Mr.
Chairman, we have responsibility for the official but sensitive
EOP network. We can't control what individuals do on their own.
    Chairman Waxman. But you have the responsibility for all
the officials working at the White House to get their e-mail
records, and if they use some other e-mail system, aren't you
responsible to gather that information under the Presidential
Records Act?
    Mr. Swendiman. Well, I am advised, Mr. Chairman, that
Counsel's Office has taken steps with regard to that. The
letters have gone out to former White House employees with
regards to use of RNC laptops that----
    Chairman Waxman. Letters telling them not to do it in the
future or to get the information from the past?
    Mr. Swendiman. Mr. Chairman, I don't know the exact
substance of the letter, I simply have been advised that step
has been taken.
    Chairman Waxman. Will you get that information, what steps
have been taken, what letters have been sent?
    Mr. Swendiman. I will consult with counsel, yes, sir.
    Chairman Waxman. Well, I am sure we asked the counsel for
this information.
    The White House e-mails that the RNC deleted are the core
types of communications that the Presidential Records Act is
supposed to preserve; they are the candid communications of the
President's most senior advisors. The White House may not want
these e-mails disclosed, the White House may be worried that
the true record of how the White House led the Nation to war in
Iraq will be embarrassing, but that is not a legitimate reason
for your failure to recover the deleted e-mails. I think it is
tremendously important that we get those Republican National
Committee e-mails, and I assume, Mr. Weinstein, that you agree,
the RNC has a box of backup tapes.
    Are they being searched, Mr. Swendiman?
    Mr. Swendiman. Mr. Chairman, is what being searched?
    Chairman Waxman. The box of backup tapes at the RNC.
    Mr. Swendiman. I don't know. All I can tell you, Mr.
Chairman, is that among the steps that I am advised are being
taken is, first of all, I mentioned the letter----
    Chairman Waxman. Pull the mic and be sure it is on. Our
Members are having trouble hearing you.
    Mr. Swendiman. The second is that there have been
contractual efforts with regards to forensic and recovery. I
cannot, at this time, tell you the status with regard to that.
    Chairman Waxman. Well, this is what this hearing is all
about and that is why you were invited to come. We were told
that the White House has not even asked for them. Is that a
problem, if the White House hasn't even asked for them?
    They assured you, Dr. Weinstein and Mr. Stern, that they
are going to take care of it and they are going to get this
    Mr. Weinstein. Mr. Chairman, I can only promise you one
thing, that you and Ranking Member Davis and members of this
committee will have my best information on this by the end of
the week. I am going to make some inquiries as soon as this
hearing is over and hope that we can get to the heart of the
    Chairman Waxman. Well, we----
    Mr. Weinstein. I don't have an answer for you now.
    Chairman Waxman. Well, you don't have the answers because
the White House assured you they were getting it and it looks
like, from what we hear, they haven't done anything.
    Dr. Weinstein, you wrote to Fred Fielding, the White House
Counsel, about this issue on May 1, 2007.
    Mr. Weinstein. Yes, sir.
    Chairman Waxman. Particularly the archiving in the White
House system itself. You wrote: ``We believe that it is
essential that the White House move with the utmost dispatch
both in assessing any problems that may exist with preserving
e-mails on the Executive Office of the President system and in
taking whatever action may be necessary to restore any missing
e-mails.'' After you wrote this letter, your staff made several
attempts to learn more. These weren't successful.
    Now I want to read from a memo that Mr. Stern wrote to you
on September 5, 2007. Now we are talking about the official
White House e-mail system. And Mr. Stern wrote: ``We still have
made almost zero progress in actually moving ahead with the
important and necessary work that is required for a successful
transition. More significantly, our repeated requests to begin
office-by-office meetings to scope out and inventory the
volume, formats, and sensitivities of the PRA records that will
be transferred to the National Archives has gone unheeded. Of
most importance, we still know virtually nothing about the
status of the alleged missing White House e-mails. We have not
received a written response to our May 5, 2007 letter regarding
alleged missing Federal record e-mails. As we stressed to the
White House last spring, it is vital that any needed backup
restoration project begin as soon as possible in order that it
be completed before the end of the Administration.''
    Dr. Weinstein, what was your reaction when Mr. Stern
informed you that the White House had still provided virtually
no information about a potentially large loss of Presidential
records? And how would you describe the situation now? Do you
all the information you need to assess the extent of this
    Mr. Weinstein. In response to your first question, Mr.
Chairman, I am obviously not happy about that situation. I
would like an answer and I would like to move forward on this
process. In connection with what the situation is today, I
think we have a very sensitized group of people to this issue,
but we don't have the results yet. So that is why I ask you for
a few more days to see whether I can get some results for you.
    Chairman Waxman. Well, we will certainly, without
objection, hold the record open for you to give us any further
information, and I am sure you will get further questions about
this. But Congress doesn't have all the information we need. We
still don't know what the White House is going to recover,
whether they are going to recover the missing White House e-
mails that the RNC deleted, and every week we seem to get a
different story from the White House about whether the White
House's own e-mail archives are complete. I think it is
important we get those RNC e-mails and we get the White House
e-mails from their own operating system, and without that this
administration is not complying with the Presidential Records
    I want to recognize Mr. Davis for 15 minutes.
    Mr. Davis of Virginia. Thank you. Let me just say that
these people are not responsible for the RNC e-mails. They have
a separate corporate culture over there, isn't that correct, in
terms of when they move them?
    Mr. Swendiman. That is correct.
    Mr. Davis of Virginia. And you are not into that loop
particularly. The other thing that troubles me about this is
the fact that when you have the committee asking the RNC to
recover e-mails that they may or may not have, that is a huge
expense to the National Committee. My feeling is--and we need
to look at this in the future--when you have congresses of
different parties going after political committees, that is
taking a lot of money out of the system for congressional
investigations that could go other places, and I think if
Congress really wants to pursue this, we ought to look at an
appropriation or something, and not have it come out of their
coffers. It has been hundreds of thousands, at a minimum, that
I know that it has cost the RNC in this particular case.
    Let me ask some questions.
    Ms. Payton, we have backup tapes for all of this, don't we?
    Ms. Payton. Excuse me?
    Mr. Davis of Virginia. All the e-mails, are there backup
    Ms. Payton. We have disaster recovery backup tapes,
    Mr. Davis of Virginia. What is the difference between a
disaster recovery backup tape and a backup tape?
    Ms. Payton. Sure. Let me try and explain it. From a
disaster recovery standpoint, which is what our backup tapes
are, what you do is you actually take a picture of what all of
the servers, the applications----
    Mr. Davis of Virginia. Well, backup tape covers everything
that happened.
    Ms. Payton. Yes, sir.
    Mr. Davis of Virginia. It may be for disaster recovery, but
are there backups for all of these missing e-mails?
    Ms. Payton. We believe we should have backups based on our
first pass analysis, which is not complete and has not been
QAed yet.
    Mr. Davis of Virginia. But, in all likelihood, there are
backups for everything.
    Ms. Payton. Yes, sir.
    Mr. Davis of Virginia. So there is nothing really missing
here, it is recoverable.
    Ms. Payton. We won't know until we finish the analysis, but
we feel very confident that we will be able to use the disaster
recovery backup tapes if we need to. At the end of phase two of
our analysis, if we still have anomalies----
    Mr. Davis of Virginia. So the committee should be able to
get this, if they want it, one way or the other, is that----
    Ms. Payton. Yes, sir.
    Mr. Davis of Virginia. OK. I mean, I think that is
important to get out here. Now, it is expensive going through
the disaster recovery backup tapes to retrieve that, is it not?
    Ms. Payton. Yes.
    Mr. Davis of Virginia. Can you describe the cost to me?
    Ms. Payton. The team actually put together an algorithm
based on having to do this before, and basically the
algorithm--and it is a very rough approximation, but if you
have one component 1 day that needs to be restored from a
disaster recovery backup tape, we have estimated it would cost
around $50,000 for one component 1 day. So if you have three
components on one single day, that would be three times 50,000,
which would be 150,000.
    Mr. Davis of Virginia. Well, can you give me a ballpark
number if we had to go to the backup? Assume for a minute we
can't recover the originals of this. To get what the committee
wanted to, if we had to go to backup, can you give me a
    Ms. Payton. There is also servers that would have to be
purchased because you wouldn't want to do the backup on servers
you already have, so we said it would be about $500,000 for the
servers. And I believe--and I am working off of memory here--
but I believe we had said if we restored every single day from
the original analysis, it was going to be somewhere in the
ballpark of $15 million or more.
    Mr. Davis of Virginia. OK. But it is recoverable. In your
judgment, by the time you have looked at all of this, one way
or the other, these haven't been doctored or hidden; it is
    Ms. Payton. Yes, it should be recoverable.
    Mr. Davis of Virginia. At a cost.
    Ms. Payton. The caveat I give is you don't know what you
don't know until you get into the technology. So sometimes you
don't know if there might be a flaw in a tape and some of those
other things. But based on what we know right now, it should be
    Mr. Davis of Virginia. OK, thank you very much.
    Mr. Issa, do you want to----
    Mr. Issa. Thank you. I thank the gentleman for yielding.
    Mr. Chairman, I would ask, since I understand we are going
to accept additional information at the end of this hearing,
that the back-and-forth correspondence with Mr. Steven McDevitt
related to the White House guidance and his further guidance be
included in the record.
    Chairman Waxman. Without objection, that will be the order.
    Mr. Issa. Thank you, Mr. Chairman.
    [The information referred to follows:]

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    Mr. Davis of Virginia. Would the gentleman yield for one
    Mr. Issa. Of course. Take your time.
    Mr. Davis of Virginia. Let me just make one other comment
on White House versus RNC, because this is a long-term problem
I think this committee needs to wrestle with if we are going to
be successful.
    You have a political operation in the White House, and you
do politics and you do governance at the same time. To be able
to use Government systems to do political e-mails would really
not be consistent with the Hatch Act and everything else. Is
that everybody's understanding? Mr. Stern?
    Mr. Stern. Well, that is correct, and with the Presidential
Records Act. The Presidential Records Act itself requires that
White House officials separate Presidential records from what
are called personal records, which include political records.
So they are supposed to keep them separate and generally not
use Government systems for non-Governmental business.
    Mr. Davis of Virginia. I think what we need to do, we can't
reinvent the past, but, going forward, we should--one thing
this committee could do is we could is we could outline some
guidelines in the future for how you keep those records, saving
them and the like. I think that may be helpful. I mean, the
fact that you had different servers and computers keeping these
things in itself is compliant with the law.
    Mr. Stern. Yes, the notion of having a separate computer to
do political work in the White House makes sense; you just
shouldn't be doing your official work on that computer.
    Mr. Davis of Virginia. Right. And that would mean that for
the political parties, now all the e-mails wouldn't have gone--
I mean, if it was an RNC or a DNC computer that you were
keeping there, maybe we ought to put out guidelines for
preservation of records, which currently don't exist. Would
that be a recommendation that might come out of here that could
be helpful in going forward?
    Mr. Stern. I would think so. And that is the kind of thing
that--you know, the White House Counsel issues records
management guidance for all White House employees that they
should be doing and I think did do, in fact. There is guidance
to that effect at some level, I believe, by the White House.
    Mr. Davis of Virginia. But this is--I mean, e-mail, this is
fairly new, this has evolved over the last decade, and it may
be appropriate, Mr. Waxman, at the right time, at least going
forward, that we put out some hard and fast rules.
    Mr. Weinstein, do you have any thoughts on that?
    Mr. Weinstein. I am in total agreement with that, Mr.
Davis. One of the points I would like to make is about the cost
of this. Apparently, this process of restoring e-mails from the
Clinton years cost about $12 million and took about 2 years to
achieve, so these are not cost-free issues.
    Mr. Davis of Virginia. I got you. Thank you.
    OK, Mr. Issa.
    Mr. Issa. Thank you.
    Sort of finishing up with Mr. McDevitt, my understanding
from staff is that the call that was made, they were prohibited
from asking certain probative questions, one of them clearly
would be is Mr. McDevitt working with CREW in private
litigation. Certainly, that would be a fair question if he were
here before us today. Another one would be, you know, were the
interrogatories that he submitted the result of back and forth
work with the majority. Certainly, I would like to know that.
Last, I might note for the panel before us that Mr. McDevitt, a
Federal employee at FEMA, chose--even though he is a past White
House employee--chose to use his g-mail account to correspond
back and forth with us as to whether or not he could give
    And I think, Mr. Stern, I will start with you, if you don't
    Is it appropriate to use g-mail when you are a Federal
employee and a committee of Congress is asking you questions?
Or would that have been something that he should have done on
his FEMA account, since he is a Federal employee, and he was
contacted in the ordinary course of previous Federal
    Mr. Stern. Well, ultimately, like we have said, whether
something constitutes official Government business and
therefore a Government record has to preserved on whatever
system you use it on. People do use their home e-mail accounts
if they are working from home and don't have access to the
Government account. So the fact of mere use of a private
account for Government business is not prohibited, it just
needs to be preserved according to whatever Government
recordkeeping laws apply.
    Mr. Issa. OK.
    Mr. Stern. But g-mail is not something where you can easily
catch the archive on it.
    Mr. Issa. Dr. Weinstein, are you keeping all of the YouTube
stuff that is up on the President? Are you keeping all the
other activities, the things that show up on the internet for
President Bush and his administration? Are you capturing that?
Because certainly it is part of the total internet, but not
part of Ms. Payton's normal capturing.
    Mr. Weinstein. What specifically, are you referring to?
    Mr. Issa. Well, if the chairman thinks that he should have
Karl Rove's every thinking, including correspondence with the
wife or a girlfriend or an old buddy because it was done at the
RNC and not official work, toward this voyeur, peeping tom
thing that you are entitled to everything, the question is, are
you capturing everything or, in fact, are you leaving a huge
amount that is out there not there. Are you capturing every
utterance of the President, no matter where he is, for example?
    Mr. Weinstein. Congressman, I think you know the answer to
that question.
    Mr. Issa. I do, and, unfortunately, the only time I have is
the time to say that this committee was supposed to be looking
into the failure to keep 200 days--it continues to shrink--
worth of e-mail, but it is very clear that it is Karl Rove's
nonofficial activities that, for example, were related to
fundraising or other activities, maybe strategizing how the
Republicans in the House could have kept the majority rather
than become part of the minority, which, I suspect, Karl Rove
did at the RNC. He probably did that, and would his successor
in a Democrat administration.
    So my question is, if Karl Rove over at the RNC chose to
decide that, let's say talking about fundraising, or talking
about strategizing how to maintain a majority in the House or
the Senate, if he did something on an e-mail, would that be
appropriate for you to gather at the time, Mr. Weinstein?
You're shaking your head no, so I assume that you have an
answer to that, that is not appropriate, right?
    Mr. Stern. The Presidential Records Act pretty clearly
defines what is a Presidential record and what is not a
Presidential record, and says activities by officials for
purely political purposes, campaigns, reelection of the
President are non-records and should not be maintained by the
Government system and not--they do not come to the National
Archives as Presidential records. So it is entirely appropriate
to conduct that business on a separate system.
    I think the issue is always, was there are also official
Presidential records on that system. That is what we would be
interested in getting at.
    Mr. Issa. Well, but is there any evidence that any of you
have that there is official Government Presidential records
there? Or are we simply going on a fishing expedition at
$40,000 or $50,000 dollars a month of campaign funds at the RNC
because we have the power of subpoena? And we will forget the
second half of that for a moment.
    Do any of you know of any official deliberative, required
under law, not nice to have but required under law, that was
done at the RNC? Obviously, from the Government to the RNC you
have already got, you will capture that. We are talking about
use of other servers and other e-mails not related to the
Government. Do any of you know of a single document, because
this committee doesn't, a single document that should have been
in the archives but, in fact, was done at the RNC?
    Mr. Weinstein. Two points. First of all, it is hard to know
anything before we have some information.
    Mr. Issa. OK. Now, that is the whole point. We are not
    Chairman Waxman. The gentleman's time----
    Mr. Issa. No, no, but--Mr. Chairman, this is my time, if
you don't mind. You have used plenty of time that is not
allocated time under the committee rules.
    I need to be as simplistic as possible because we have
limited time. If you know of any, you say yes; if you do not
know of any, you say no. I understand that there might be some
there that we do not know, but there might be some on YouTube.
    The President may have had a conversation, a deliberative
conversation, well, at a fundraiser. He may have done that, but
it is not being captured by you today, nor is there a burden
under law to go get it to see, is there? You have no mandate to
go peeping tom into every piece of correspondence that people
say is private in order to determine whether it might be
    Mr. Weinstein. Of course not.
    Mr. Issa. OK. So, I mean, it is important for today because
Ms. Payton, I think, has very important information for us,
that there will be a certain amount of days of re-imaging
servers with the images you captured as the typical backup you
do. It is much faster, obviously, to capture an image than to
do a sequential backup.
    You captured images. If you are lucky, you capture one and
you get 80 days' worth of back, or 30 days worth of back e-
mails; if you are not lucky, you may have to go day after day
after day to capture them. And I appreciate the fact that
sometimes those images are not 100 percent perfect. You might
not be able to restore a server, and that may be lost, and it
may be millions of dollars.
    But the committee's legitimate reason for calling this
today, as I understand, is not the RNC; it is whether or not
you can capture that and what it will cost. And I think you
have given us a great answer that if all we care about is Dr.
Weinstein's ability to get the legitimate archives that we know
should be available to the history of America, you are going to
be able to provide that in all likelihood, all or virtually
    So now I get back to the same thing in the remaining time,
and I will ask each of you, do any of you know of something
that was wrongly use outside official channels by Karl Rove?
Because it is clear the chairman, a little bit like Dan Burton,
who I disagreed with some of what he did in the 1990's, but he
is clearly wanting to know what Karl Rove said or did even if
Karl Rove did not deliver it as official work. And the question
is, do any of you know of any misconduct by Karl Rove using the
RNC to circumvent what would otherwise be official legitimate
activities covered under the Records Act? Do any of you know of
that, yes or no, please?
    Mr. Weinstein. Yes or no?
    Mr. Issa. Yes or no. I mean, do you know or do you not
know? You do not know.
    Mr. Weinstein. I would say that the question itself is both
above and below my pay grade. [Laughter.]
    Mr. Issa. Mr. Chairman, I will take that as a no, and thank
    Chairman Waxman. I would take it as more than a no.
    For the record, the White House has a responsibility of
preserving all of the e-mails. And if some of the e-mails are
at the Republican National Committee, the White House has a
responsibility to get them, but only those that relate to
Federal work, Government activities.
    And when we know that, for the record, that there are 51 of
the 88 White House officials who had RNC e-mail accounts, and
then we do not know what has happened to 37 of those 51, and
before 2006 only 14 of these officials had the e-mails even
retained at all and that Karl Rove, for example, used 99
percent of his time on RNC e-mails, one would assume he was
doing some Government work. But we do not know unless we see
the e-mails. And if we do not see thee-mails, we do not know.
    Mr. Issa. Mr. Chairman, do you presume that we have a right
to look into private people's lives simply because----
    Chairman Waxman. Absolutely not.
    Mr. Issa [continuing]. There might be something there?
    Chairman Waxman. Absolutely not. But the White House has an
obligation to have the official business of the White House on
e-mails that are preserved. And they need to be preserved
whether they are on one account or another.
    Mr. Issa. Mr. Chairman, I truly agree with you on that, and
that is why we have been cooperating as a minority. But I would
hope that we would ask the White House just as what I asked
here, are there any records that are covered under official
deliberation in the Records Act that have been conducted under
any non-Government service by any individuals and ask them to
answer that.
    Chairman Waxman. Mr. Swendiman, that is a good question.
Are there Government activities that are handled on an RNC e-
mail account when we have so many employees of the highest
level in the White House with no official records of their e-
mails, and we know that they use their RNC accounts for
everything that they send on e-mails?
    Mr. Swendiman. Well, much of the things that you have
talked about, Mr. Chairman, preceded my coming to the position
of Director of the Office of Administration.
    Chairman Waxman. Oh. Well, then, it's improper for us to
ask you. But you are here representing the White House? Let me
go on to Members who are waiting for their opportunity to ask
    Mr. Davis.
    Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
    As I listened to that discussion, I just happened to have
in my hand a report that says Investigation of Possible
Presidential Records Act violations. And information in the
report indicates that White House officials used their RNC e-
mail accounts to conduct official business. So I am not sure
that we have to speculate about that. I think that we actually
have the information that has been under investigation and,
actually, is written in a report. So I think we can move on.
    But let me move on to my questions of Dr. Weinstein. As I
understand the White House e-mail problem, this all began in
2002 when the White House decided to move its staff from the
Lotus Notes e-mail system to the Microsoft Exchange e-mail
system. But when the White House switched away from the old e-
mail system, it also abandoned the archiving system that went
with it.
    The archiving system was called the Automatic Records
Management System [ARMS], and had been used since the Clinton
administration. The problem was that instead of putting in
place a new archiving system, the White House began an ad hoc
process called journaling. And under this process, a White
House staffer or contractor would collect copies of e-mails and
manually save them on various White House servers.
    The committee interviewed Carlos Solari, who was Ms.
Payton's predecessor, as the White House Chief Information
Officer, and he told us that this journaling process was ``a
temporary'' and ``short-term'' solution that was not considered
a ``good long-term solution.''
    Dr. Weinstein, your own staff had a similar reaction. In an
e-mail sent last November, Sam Watkins with the Archives said
that the archiving system used by the White House ``hardly
qualifies as a system'' by the usual IT definition.
    My question is, do you agree with this ad hoc journaling
process was not an ideal e-mail archiving system?
    Mr. Weinstein. Congressman, may I first compliment you on a
very brief distilled analysis of the systems, which I am afraid
I could not match. So we will start with the fact that I am a
very low-tech person, I have only been at the Archives for 3
years. But I think the judgment of that system will have to be
made by colleagues who have watched this over--unfortunately, I
am not even sure that Mr. Watkins is here. Is he here?
    So we will listen to my counsel on that one.
    Mr. Davis of Illinois. So you would not say that this is an
    Mr. Weinstein. Well, I think when one has to change any
system completely, or one decides to change any system
completely, you are going to run into not simply the normal
obstacles but that wonderful historical--I am a historian by
profession--and the law of unintended consequences is the only
major historical law which I know, which is----
    Chairman Waxman. Dr. Weinstein, we're having a hard time
hearing you. Pull it right up to----
    Mr. Weinstein [continuing]. Which is absolutely infallible
for historians which is a law of unintended consequences. I am
sure there were some in the change from one system to another,
but perhaps Mr. Stern knows of some specifics here.
    Mr. Davis of Illinois. Well, let me ask you, Mr. Stern, on
responsive, do you have any concerns about the adequacy of the
White House archiving system?
    Mr. Stern. I think, and as the documents we provided to
committee reflect, it had been our understanding that the
journaling function was meant to be temporary stop-gap until
they put in a new formal records management application which
we had spent some time working with them during the first term
of the President, and which we still had hoped and expected
they would put in a new formal system.
    So I think, as the quote you indicated, or you quoted from,
indicates that it is our view that the journaling function is
not the ideal solution.
    Mr. Davis of Illinois. And it has been used for 6 years, so
I would want to ask Dr. Weinstein, do you have any concerns----
    Mr. Weinstein. Correct.
    Mr. Davis of Illinois [continuing]. About how long this
system has been used, or the White House has continued to rely
upon a nonproductive system?
    Mr. Weinstein. Congressman, in fairness to the White House,
what I would like to see is the results of what my colleague
here, Ms. Payton, is doing. You indicated that your process is
coming to a conclusion, so I would like to hear the results of
what Mr. Swendiman and his colleagues have come up with, and it
seems to me to be unfair to judge that system before we have
seen it in operation. And this is, literally, the first time it
can be seen in full operation.
    Mr. Davis of Illinois. Well, let me ask Ms. Payton how she
would respond to that, or if she has any concerns about it.
    Ms. Payton. If your question, Mr. Davis--I just want to
make sure I understand the question you are asking me--is
around--is it an ideal solution?
    Mr. Davis of Illinois. We used it--I mean, the White House
has continued to use it pretty much knowing that it was not
yielding the kind of results that you would want to have it
    Ms. Payton. I think this is a very complex challenge. It is
not as simple to say this is the right software produce and
this is the wrong software product.
    What I have been able to gather from the people who have
been here prior to my arrival, as well as some of the documents
that I have read, is best efforts have been made to actually do
a more comprehensive solution, but once the products had run
through their paces through some of the unique and demanding
requirements that EOP has, they have to do both Presidential
Records and Federal Records Act management. They have to
separate things out by components, and they have to be able to
record key statistics so that they can do searches.
    And it appears that each time those products were run
through the paces, they were left wanting. So that has been the
    So part of what we have been doing in knowing that we want
a more comprehensive solution--this is not the solution that we
want to live on for the rest of the time that we are on
exchange, barring whatever the next platform is that comes out
for e-mail, we know that we want to move to a newer platform.
However, in the meantime, you have to make do with what you
have and make sure the processes around it are tight, make sure
that people are trained, and as much as you can improve the
technology around it to make sure the processes capture any
potential problems that may happen.
    A comprehensive solution still does not account for, if you
have four processes around a comprehensive solution, if it
breaks, you are still going to have challenges. I think we have
seen that in the industry. And I am not going to, you know,
mention by name some of the large companies that have had
challenges with this that do have more comprehensive solutions.
    So I hope I am answering your question, Mr. Davis. Would it
be what my staff and I would have picked if we could have had
the ideal world, probably not. But it is the solution we have,
and our focus is on making sure it is accurate, reliable,
stable, and has good processes around it until we can get on a
more comprehensive solution.
    Mr. Davis of Illinois. Thank you very much.
    Chairman Waxman. The gentleman's time has expired.
    Mr. Mica.
    Mr. Mica. Thank you, Mr. Chairman. Sixteen years is, I
think, Mr. Chairman, you have been on the committee longer, I
am sure you have, but I have been on 16 years. It is
interesting how what comes around sort of goes around.
    Here with this discussion reminded me of, with the Clinton
administration, and the missing FBI files, and those were not
e-mails, those were FBI files. Remember Craig Livingstone, and
I think Mrs. Clinton was in the middle of that one, too. But it
is interesting how it sort of just all comes around full
circle. Now, we are looking for some e-mails.
    And this raises an interesting question, because we have
gone from like hard FBI files and documents to the electronic
era. I had a good discussion with the librarian of Congress
because the same thing is happening with Congress. You used to
have all these great, well, the archivist has an incredible
collection of hard copies. I think it is just one of the most
fabulous things I have ever seen is to go into the Archives.
And you do a, generally, a magnificent job of preserving those
documents. But we are entering a new era in trying to sort out
sort of the rules of how you preserve electronic
    Ms. Payton, this Steven McDevitt that has made some
allegations, part of the reason that he was upset was that, I
had heard that there was a difference in technology he wanted
to implement. Are you aware of that as far as recording e-mails
and preserving them?
    Ms. Payton. Did you----
    Mr. Mica. Are you aware of that, Dr. Weinstein?
    Mr. Weinstein. Well, obviously, in an ideal world, which
is, you know, Congressman, is the world we live in, it would be
best if all concerned had a very high comfort level with the
technology they were using. I am not privy to the specific
arguments involved with technological debate over what to do at
the White House in this regard. I am at the National Archives.
    Mr. Mica. Well, is there a difference of opinion as to how
the records were kept, do you know?
    Mr. Weinstein. I am not sure that there was. Did you have a
difference of opinion?
    Mr. Mica. Well, if there was not, we would have one
protocol, and everything would, things would be saved. And,
obviously, some things are missing that Mr. Waxman would like
to find.
    Mr. Weinstein. But at the staff level, it seems to me that
one of the things that keeps the system working is a remarkable
amount of civility back and forth, normally, between the staffs
in terms of getting basic things done.
    Mr. Mica. But, you know, the high regard I have for the
Archives. Mr. Stern, I think you were involved in the Sandy
Berger issue, and I asked that we find out about the missing
    Now, Sandy Berger had top secret classified documents he
was charged by President Clinton to report to the 9/11
Commission, and he had access to and misplaced top secret
documents. Is that not correct, Mr. Stern?
    Mr. Stern. He had access. He had clearance. I mean, I could
answer your question, if you would like. It seems that is,
obviously, a separate topic from what this hearing is about.
    Mr. Mica. No, but you are charged, it is just like I am
going to ask Ms. Payton about the Clinton records, you are
charged with keeping Presidential records. The Clinton records,
is there not a hold on some of those being released now for the
Clinton Library?
    Ms. Payton, is that correct?
    Ms. Payton. My understanding is they are NARA, sort of in a
kind of a temporary area until all of them are----
    Mr. Mica. So we cannot get access to Presidential records
from that administration, and then the Archives, which does its
best in preserving them, particularly a new mode of
communications which is electronic, we take top-secret hard
documents that were stuffed, according to Mr. Lester's e-mail,
which I would like to make part of the record, Mr. Chairman.
    Chairman Waxman. We will accept it for review and not make
it part of the record.
    Mr. Mica. OK, but it refers to his e-mail as to how those
documents were preserved, and I guess they were stuffed in
Sandy Berger's socks.
    Mr. Mica. Is that what you understand, Mr. Stern?
    Mr. Stern. There's been a lot of review and investigation
by lots of folks about what Mr. Berger did.
    Mr. Mica. But there are e-mails that say one thing, and
then the IG Report says another thing. And I want them to be
made part of the record.
    Chairman Waxman. The gentleman's time has expired. The
Chair will not admit that in the record. That has nothing to do
with this hearing.
    Ms. Watson.
    Ms. Watson. Thank you so much, Mr. Chairman, I want to
address my remarks to Ms. Payton. And Ms. Payton, to comply
with the Presidential Records Act, an e-mail archiving system
has to ensure that it captures all pertinent e-mail, but it
also has to prevent people who are unauthorized from tampering
with or deleting e-mail, would you not agree?
    Ms. Payton. Yes, ma'am. Yes, absolutely.
    Ms. Watson. And the committee has been informed that in
2005 the White House was warned that not only its system was at
risk of data loss but also that it was vulnerable to tampering.
And Mr. McDevitt, who worked for you at the White House,
correct? He did work for you?
    Ms. Payton. Yes. I started mid-May 2006.
    Ms. Watson. He informed the committee that there is no way
to guarantee that all records are retained in their complete
and unmodified state. And he said the approach of simply
storing e-mail messages in PST files provide no mechanism or
audit trail that tracks changes to day the files. According to
him, the integrity of the data could be called into question
because it was not possible to ensure that inappropriate
action, either intentional or unintentional, could not occur.
So this does not necessarily mean that someone tampered with
White House documents, but it does mean there is no way to know
if someone did.
    Let me then address this to Dr. Weinstein. Does this raise
a concern for you that there could be tampering?
    Mr. Weinstein. Congresswoman, anything of this kind raises
concerns for me and any possibility of tampering in any
fashion. Because of an unfortunate employee----
    Ms. Watson. I know, but are you concerned about that?
    Mr. Weinstein. Am I concerned about this specific issue
that you raise?
    Ms. Watson. That the data could be tampered with.
    Mr. Weinstein. I would like to see some of the material, if
I may that----
    Ms. Watson. I cannot hear you, sir.
    Mr. Weinstein. I would like to read through some of the
material that you have in front of you so that I can judge for
    Ms. Watson. No. Give me a yes or no.
    Mr. Weinstein. Yes, I am most concerned. Yes.
    Ms. Watson. Yes is your answer?
    Mr. Weinstein. Yes was my answer.
    Ms. Watson. Yes, it is just a simple question, OK.
    Mr. McDevitt also raised another concern, and this one is
even more serious. He stated that there was a critical security
issue in this system that was not identified and corrected
until 2005. And he said this: ``During this period it was
discovered that the file servers and the file directories used
to store the retained e-mail PST files were accessible by
everyone on the EOP network.''
    Now, Ms. Payton, the Executive Office of the President has
several thousand people, and your former employee, Mr.
McDevitt, is saying that until 2005 any of them could access
these e-mail files. They could delete files, they could modify
files, or read the files of other officials. Is that correct?
    Ms. Payton. Ms. Watson, since that precedes me, I am going
to go off of information based on conversations with my staff,
and in asking and trying to understand the e-mail situation so
we have the right course of action and the right people matched
to it, that has not been brought up.
    I mean, at some point in time I can certainly go back and
ask them about that. That has not been brought up, nor is that
    Ms. Watson. Let me stop you.
    Ms. Payton. Yes, ma'am.
    Ms. Watson. Are you saying to me that it has not been
brought up that these files could be deleted or tampered with?
That there was a system-wide access by 3,000 customers to the
servers that are in the data center.
    It would appear to me that if you had a system in place so
it could be accessed by 3,000 people or unofficial personnel,
and it could be changed, you mean to say that there was no
concern or discussion? Is that what I am to hear?
    Ms. Payton. I have not been made aware that at some point
in time that these servers were open to just anybody.
    Ms. Watson. So, as I understand it, and please correct me,
you had a system in place in the White House for several years
in which anyone could have gone in and deleted files without a
    Ms. Payton. Ma'am, I do not know that to be true. I have
not been told that.
    Chairman Waxman. The gentlelady's time has expired.
    Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. Let me just ask that
again. I think maybe you just answered this, you do realize, of
course, you are under oath. Do you have any knowledge of any
kind that any person has ever tampered with or deleted any of
these files?
    Ms. Payton. I have no knowledge of anybody going out there
and intentionally deleting files that should not be deleted.
    Mr. Duncan. All right.
    Ms. Payton. Again we are referring to a time period before
my time, but I have not had an employee come to me and say this
is something that needs to be researched and that anything has
happened. So I do not know what to do with that statement.
    Mr. Duncan. So you have no knowledge of anybody purposely
trying to hide or delete something from this committee or from
any Government investigator?
    Ms. Payton. That is correct. There is only one exception
that is allowed as far as any kind of delete, and that has to
go through a very specific process. That is only in the event
that information from the classified network is found on the
unclassified network. That is the only time that a delete is
allowed to happen, and that is managed through very tight
    Mr. Duncan. Mr. Swendiman, let me ask you, or Ms. Payton
either one, how many times has your staff or either of you or
your staff briefed Oversight Committee staff, and can you tell
us how many letters of inquiry you have received from the
    Mr. Swendiman. I briefed the Oversight staff once very
recently in terms of being responsive to the committee. We have
certainly in hand the chairman's letter, and we have been
producing the documents that were requested. That has consumed
approximately, given the last check of about February 8th,
about 1,500 hours of time from the OA staff to do that, and
that's staff across the board; that is not just the OCIO's
office, but it is the Chief Financial Officer, the Chief
Operating Officer, the Procurement Division, and so forth.
    Mr. Duncan. That is really what I was getting at, is some
idea about how much staff time, or how many hours or how much,
has been devoted to trying to find this information. Do either
of you have any idea about how many documents or interviews
have been submitted? How many pages of documents of pages have
come here to the committee in regard to this investigation?
    Mr. Swendiman. Right now I think the estimate that I have
been given is that approximately 15,000 pages of documents have
bene produced to the committee, and approximately another
15,000 have been shown to the committee.
    Mr. Duncan. So 1,500 hours and 15,000 pages.
    Mr. Swendiman. Approximately, sir.
    Ms. Payton. Mr. Duncan, since you have addressed it to both
of us?
    Mr. Duncan. Sure.
    Ms. Payton. Allen covered the OA portion which would cover
my area. But in addition to that you had asked the question
about briefings, and I have provided, if I remember correctly,
it has been four briefings, two in person, two via telephone on
this topic to committee staff.
    Mr. Duncan. All right. Thank you very much.
    Chairman Waxman. Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. Ms. Payton, I would
like to ask you about some e-mails that were missing from Vice
President Cheney's office that were related to CIA Agent
Valerie Plame Wilson. Before I get to any questions, let me see
if I have the chronology right, and I know you will correct me
if I am wrong on that.
    I understand that first your office produced a chart in
2005 that showed 473 days with no e-mail sent to or from
certain components of the White House in the Microsoft Exchange
    For the Vice President's office, there were days during the
week of October 1, 2003, with no e-mail, and that was
apparently of interest to Special Counsel Patrick Fitzgerald,
who requested those documents during the period. My
understanding is that when the inventory was done in 2005,
nobody at the White House could locate those e-mails in the PST
files that were stored in the servers.
    And now, as far as I know in 2008, the White House still
hasn't located those e-mails in the PST files in the White
House servers. So after not finding the e-mails there, the
White House went to backup tapes and ultimately recovered the
e-mails for those days. These were provided to the Special
    Is that pretty accurate so far?
    Ms. Payton. Yes.
    Mr. Tierney. So my first question, I guess, is what
happened to the files that were supposed to be on the White
House servers?
    Ms. Payton. Well, we have not finished our analysis, Mr.
Tierney. We still have, roughly, 17 million e-mails as we are
going through this first pass that we have not attributed to a
component, and in our phase two we will have enhanced
technology which will allow us to read those messages at a
lower level and attribute those to a component.
    Mr. Tierney. But so far, I mean, this is a long period of
time that has transpired now. You haven't found them, and now
you went to a pretty serious effort in trying to respond to
Special Counsel Patrick Fitzgerald, I would assume, and found
none of them on the servers and had to go to the backup. Right?
    Ms. Payton. Yes, that is correct.
    Mr. Tierney. Let me ask you about the backup tapes, then.
They are supposed to, as far as I know, copy everything on the
White House servers, right?
    Ms. Payton. They are disaster recovery backup tapes, so
they actually take a picture of how things look in the data
center at that day.
    Mr. Tierney. Right.
    Ms. Payton. So it is a picture of the server, the
applications on it, and then any data associated with the
    Mr. Tierney. So it should copy the journals, the PST files,
and everybody's individual mailboxes.
    Ms. Payton. Yes.
    Mr. Tierney. Now, we got a document showing that when the
White House restored the backup tapes for the Vice President's
office, there were no journal files, there were no PST files
containing e-mails for the days that Mr. Fitgerald was
interested in. So not only were they missing from the servers,
they were missing from the backup tapes as well.
    Can you explain that to us?
    Ms. Payton. Because this predates me, I do not know all the
details of that particular restorer. I do know that they----
    Mr. Tierney. Well, does it mean that there were no journal
files of the time the backup tape was made?
    Ms. Payton. I am not sure. What I do know is that 70
mailboxes were restored and 17,000 e-mails, but I don't know
all the details of that particular restoring process.
    Mr. Tierney. Well, I would assume, you know, the problem
with just having the mailboxes of individual officials of the
Vice President's office is, it is my understanding, is that if
somebody deletes an e-mail on the same day that they receive
it, it is gone. It is not stored or whatever. We will never
know what was on there, so no historical record of that.
    So I am looking at this, and what--I will be an expert--it
looks that there is a lot of unanswered questions here about
the e-mails that were missing from the Vice President's office.
    Ms. Payton. Mr. Tierney, if I might, we still have PST
files that we have not been able to associate with a component.
I am assuming that was the same case back in 2005, but I do not
know that for sure. They contain 17 million e-mails. Once we go
through phase two, it is our hope and our assumption that we
are going to be able to find e-mails that were properly
archived, but they are just not associated with a component at
this point in time.
    Mr. Tierney. Well, I hope you will forgive me for being a
little bit skeptical, because a lot of time has come and gone
on this.
    Ms. Payton. I understand.
    Mr. Tierney. The servers did not have it. It looks like the
backup certainly, at least to date, has not had it despite
fairly extensive efforts to recapture that. You know, you want
us to rely on this system to believe that, you know, this is
something that is reliable, and I just do not see that at this
point in time, and it is disconcerting.
    I mean, all the other questions what we have seen here
today about the RNC being, deleting tapes and everything
disappearing, and these are critical periods of time where the
historical records should be accurate and should be complete.
In the amount of time that it has taken to review all of these
things and still come up with non-answers is disturbing.
    So I yield back, Mr. Chairman. Thank you.
    Chairman Waxman. Mr. Bilbray.
    Mr. Bilbray. Thank you, Mr. Chairman.
    Mr. Stern, I had the privilege of having a discussion with
Mary Nichols, who previously was at EPA and now over at Air
Resources Board, about an issue that is raised here, and that
is the California waiver, and the hearing and the process on
    In fact, I have noticed that a group that has called
themselves Citizens for Responsible Ethics in Washington
[CREW], has filed a lawsuit pertaining to the latest lack of a
waiver for California pertaining to greenhouse gases. So, sir,
do you know if they have filed a lawsuit pertaining to the
mandate to use ethanol in California that California tried to
get a waiver for from the Clinton administration and was
blocked by that administration? Do you know if they filed
    Mr. Stern. I am sorry. I am with the National Archives. I
am not familiar with that EPA issue.
    Mr. Bilbray. OK, I appreciate that.
    Mr. Chairman, I just don't know if that group was involved
in any litigation pertaining to the other waiver, but I am
interested in this, and, Mr. Weinstein, do we have the
possibility, if we wanted to followup on this other waiver, to
get into the records of the Clinton administration about what
was done and why they would not issue a waiver to California
Air Resources Board when we requested it for over 8 years?
    Chairman Waxman. I think it would depend, Congressman, on
whether those records had already been totally processed for
    Mr. Stern. Yes, under the Presidential Records Act, the
Congress, through committee or subcommittee, can make what we
call a Special Access Request for records of a former
President. So if we got a formal request from the committee for
Presidential records of the Clinton administration, then we
would respond to that, search for those records, see if we have
them at the Clinton Library, and respond to the committee. So
there is a formal process through the PRA to do that.
    Mr. Weinstein. But that would have to be the chairman of
the committee responding.
    Mr. Bilbray. The chairman of the committee would have to
request that?
    Mr. Stern. That is correct.
    Mr. Bilbray. OK. Because it is an ongoing problem that
Chairman Waxman knows we are concerned about the environmental
impact of the ethanol/methanol mandate. We have gotten the
methanol off, but we still have a mandate on ethanol, and why
the administration, previous administration, kept telling us
that they were going to pull the mandate, it never did; and
what meetings and communications they had with industry
representatives who were representing those who were
profiteering off of this mandate as opposed to where we go.
    So that is obvious. Now the concern is what kind of
contacts the Republican administration that followed made,
specifically to greenhouse gas issues.
    Mr. Chairman, at this time I would like to yield my
remaining time to the gentleman from Florida.
    Mr. Mica. Ms. Payton, you joined the Office of
Administration in mid-2006, so all the missing e-mail issues
occurred, exclusively, before your tenure began, is that
    Ms. Payton. Yes. I mean that is correct.
    Mr. Mica. And were you around when these things took place,
    Mr. Swendiman. No.
    Mr. Mica. You were not?
    Mr. Swendiman. No, my tenure began November 27th of----
    Mr. Mica. And so have sort of a little game being played.
This Steven McDevitt, he worked for you? Did he leave on good
terms, or was there some dispute? He is sort of the accuser
here bringing up that they could have had a system that would
have better, that would have preserved things, and some things
may be missing, they may not. But he has raised these
questions, right?
    Ms. Payton. He did, initially, report directly to me, and
then once I got a Deputy Director, he reported to the Deputy
Director. Steve----
    Mr. Mica. There had to be some disagreement. I mean, were
you aware that, I mean, now he is making these charges that you
all didn't handle this right.
    Ms. Payton. He was very passionate about the ECRMS platform
that was going to go to pilot, and the pilot had to keep being
delayed. And he was----
    Mr. Mica. So there was a disagreement on how these records
would be preserved?
    Ms. Payton. We actually did not make the decision around
ECRMS until after he left.
    Mr. Mica. OK. An important question, Mr. Chairman. One of
the things I passed after the Clinton fiasco was the White
House had to live under all the laws the rest of us did. I
think Mr. Ehlers and I passed that after we went through years
of seeing the disorganization at the White House and non-
compliance with law under the Clinton administration.
    Do we need to change the law? Is there something--because
again we have new technology that we are trying to capture
history. Let's go right now the line. Tell me if you think the
law is adequate or something we need to change.
    Chairman Waxman. The gentleman's time has expired, but if
any Members wish to answer his question.
    Mr. Mica. I don't think----
    Chairman Waxman. If any witnesses wish to answer his
    Mr. Swendiman. I think with regard to the law or rules on
technology, I need to defer to somebody who is an expert in IT
and has a technological background.
    Ms. Payton. As far as the law goes, I cannot legally
comment on whether or not the law should be changed, but the
fact that more communication that used to happen in the hallway
and used to happen on the telephone now happens on e-mail. So
e-mail volumes are driving up, and it is now, you know, it is
also a very casual form of communication as well as a very
official form of communication.
    So we do have some work to do, both on the user side as
well as on the technology side to understand the new protocols
around managing, preserving it properly, managing it, planning
for that type of volume, because it is only going to increase.
    Did I get at the heart of your question, sir?
    Chairman Waxman. Well, the question was, do you recommend a
new law. You are not recommending a new law. Let's go on, if
anybody wants to answer his question, directly, let's do that,
because other Members are waiting to ask their questions.
    And the gentleman's time has expired.
    Mr. Weinstein.
    Mr. Weinstein. Mr. Chairman, as you know, I am an historian
by profession, and I am afraid I am unable to respond to that
question. Certainly not without you and the Honorable Member
agreeing on a particular thing. When there is consensus in this
body, then that is the moment that probably the law should move
forward. I will stop there.
    Chairman Waxman. OK. Anybody else want to respond?
    If not, Mr. Yarmuth.
    Mr. Yarmuth. Thank you, Mr. Chairman. I am going to ask a
question that is based on a conversation I had several years
ago, before I ever dreamed of getting into politics, when I was
a journalist. I actually had forgotten about this conversation,
but I was reminded of it when all of these disappearing e-
mails, when the story of them arose.
    A woman told me, this was back in 2004, 2005, that she had
a blood relative who worked for a private contractor somewhere
in a remote area from D.C., I don't remember whether it was
Virginia or Maryland. And that every 6 weeks or so he came, his
company came to the White House and took computers and hard
drives back to a remote location where he was many stories
underground. I am not exactly clear on which term she used,
whether she said cleaned or scrubbed the hard drives of those
    I am very honest to say, she implied a nefarious motive. I
as a journalist wasn't quite sure, and I understand the danger
of hearsay stories like that. I wouldn't even ask the question
except for the connection to missing data. So my question is to
Mr. Swendiman and Ms. Payton, are you aware of any activity or
procedure that resembles the activity that I just described?
    Mr. Swendiman. Sir, I am aware of none.
    Ms. Payton. I can't comment on that time period, but I can
comment currently. There are, as employees depart, if we want
to be able to re-use their equipment, we actually take the
files and store them on a shared drive. Then if we want to re-
use their equipment, we would need to wipe their drive, so that
we are not buying a new PC and then you can't use it any more,
every time you have a new person.
    So from a current standpoint, that is a practice that we
are using. I don't know if that answers your question.
    Mr. Yarmuth. Well, it may.
    Let me ask another one, though. Are you aware of any
contract with a non-Governmental entity that involves handling
of White House computer information?
    Ms. Payton. We have----
    Mr. Yarmuth. Other than the one you may have just
    Ms. Payton. We have 60 contractors on staff who help us
with our messaging, who also help us with our PC tech support.
So contractors would be touching computers. This process that
she is mentioning, I am not sure I am aware of.
    Mr. Yarmuth. OK. And so you don't, well, OK, I will leave
it at that. But let me ask a question, you mentioned one issue
with regard to deleting information that might be classified,
and you described it as being subject to a very tight process.
I think those were your words. How can we as a committee, how
can the Congress, how can the American people be confident in
what that process is and that there is any accountability for
it? Or are we relying totally on the White House's assurance
that it is a tight process that only deals with classified
    Ms. Payton. I am not exactly sure how to answer your
question. I mean----
    Mr. Yarmuth. Would you be willing to, for instance,
describe the tight process that you use?
    Ms. Payton. Sure. I can definitely walk you through that.
    I am sorry, I just got guidance that because we are talking
about classified, I can't talk about the details of classified
in this setting. So I will just tell you organizationally, we
have an Office of Security Emergency Preparedness. If they are
notified, they notify us, we get our direction and we follow
our direction.
    Mr. Yarmuth. OK. Doesn't sound like a very tight process,
but I will let you characterize that.
    I want to ask you now about the ECRMS program. You made the
decision to cancel that program after what was described to the
committee by Mr. McDevitt as a pretty extensive 3-year process
in which a lot of different people made a decision that this
was the system that was desirable to implement. You made that
decision and you have given in your written testimony some
reasons for it.
    You gave, apparently, in a meeting with Mr. Stern's staff,
you gave some slightly different reasons. I would like to ask
Mr. Stern, did you think and did your staff think that Ms.
Payton's reasons for canceling the ECRMS program were
legitimate and were compelling?
    Mr. Stern. I am really not in a position to answer that. We
defer to them. And it is the White House's responsibility to
make the records management decisions. We certainly, as we have
said before, hoped and expected they would have a formal
records management system in place. We thought that ECRMS was
going to be it. So we were disappointed that they didn't use
ECRMS and would hope that they still try to get one in place
even now, if they can.
    Mr. Yarmuth. My time is up, Mr. Chairman, I yield back.
Thank you.
    Chairman Waxman. Thank you very much. Mr. Welch.
    Mr. Welch. Thank you, Mr. Chairman. I want to thank all the
witnesses. I want to focus on the recovery of some of the e-
mails and what efforts have been made to do that. I don't
really want to focus on motives or what we can prove when we
don't have the documentation to draw any realistic conclusions.
    Mr. Stern, the Presidential Records Act of course requires
that official business be available and then stored in the
repository of the National Archives, correct?
    Mr. Stern. Correct.
    Mr. Welch. And it is your responsibility to see that is
    Mr. Stern. Correct, to ensure that all the Presidential
records in the White House are transferred to our custody.
    Mr. Welch. Right. And whether an official action involving
White House business is done in a White House e-mail account or
an RNC account or g-mail account or AOL account, if it is
official business it belongs in the Archives, correct?
    Mr. Stern. Ultimately, at the end of the administration, it
should be preserved as a Presidential record and then
transferred to us.
    Mr. Welch. And we know that about 88 White House officials,
in fact, used a non-White House mail account to do some
official business, for whatever reason, correct?
    Mr. Stern. I guess. I am not familiar with the details of
that. It is my understanding that there was at least some
belief, even by the White House, that there could be official
business done on the RNC system.
    Mr. Welch. And you have made specific inquires from the
White House about having them obtain from the RNC the e-mails
that relate to official White House business, correct?
    Mr. Stern. Yes, we asked them to do that.
    Mr. Welch. You asked them to do that in May 2007?
    Mr. Stern. I believe so.
    Mr. Welch. What did they do as a result of that request?
    Mr. Stern. We don't know specifically. They said they were
attempting to do that, and we have inquired periodically and we
don't know anything specific except that we though they were
still continuing in that effort.
    Mr. Welch. Since you made the request in May 2007 for the
White House to gather up its e-mails that were used on the RNC
account, are you aware of any specific, concrete step that the
White House has taken to comply with that request?
    Mr. Stern. No.
    Mr. Welch. Do they have a legal duty to provide official
communication records to the Archives?
    Mr. Stern. At the end of the administration, yes.
    Mr. Welch. Ms. Payton, are you aware of any specific and
concrete step that the White House has taken to comply with the
request by Mr. Stern on behalf of the National Archives to
obtain these e-mails?
    Ms. Payton. Mr. Welch, because that is in a separate
technology team that reports up through RNC, I am not involved
in that.
    Mr. Welch. So the answer is it is not your job, so you
don't know?
    Ms. Payton. That is correct, sir.
    Mr. Welch. Mr. Swendiman, how about you?
    Mr. Swendiman. The Office of Administration is responsible
for the official, sensitive but official EOP network. It is
    Mr. Welch. So it is not your job, either?
    Mr. Swendiman. It is not.
    Mr. Welch. All right. So nobody here can speak for the
White House and explain to Mr. Stern why they haven't done what
they told Mr. Stern they would do, namely, make those
communications subject to the Presidential Records Act
available to the National Archives? You don't know?
    Mr. Swendiman. Well, I think I have tried to explain this
as I understand it, sir, as to what steps I have been told have
been undertaken.
    Mr. Welch. Well, no, I want to know, well, no steps. Is he
    Mr. Swendiman. I am not privy to the communications Mr.
Stern has had with----
    Mr. Welch. Well, let me ask you this. Apparently, some of
these may be gone forever, we don't know. But there are two
boxes of backup tapes at the RNC, we are told. Mr. Stern, are
you aware of any effort to make those backup, those tapes in
those two boxes available to the National Archives?
    Mr. Stern. They wouldn't make those available to us. If
they were going to do a recovery effort, they would either do
it themselves and then search through recovered e-mails for
official e-mails, or they would let somebody through the White
House do that.
    Mr. Welch. Ms. Payton, are you aware of any recovery effort
that has been made with respect to those two boxes?
    Ms. Payton. No.
    Mr. Welch. Mr. Swendiman, are you aware of any steps that
have been taken to recover the e-mails that are contained in
those two boxes?
    Mr. Swendiman. Sir, I can't speak to the two boxes. What I
    Mr. Welch. So you do not know?
    Mr. Swendiman. I do not know specifically as to those two
    Mr. Welch. So there is no dispute, either on the part of
the White House folks or the National Archives folks, that any
e-mails, whether it's on an RNC account or a White House
account, that may be in those two boxes, and this goes back to
the 2001, 2002 when major decisions in this country were being
made, including the decision to go to war in Iraq, there's no
question that anything that relates to official White House
business is subject to the Presidential Records Act? Mr.
Swendiman, do you agree with that?
    Mr. Swendiman. Could you repeat the question, sir?
    Mr. Welch. Any document, e-mail that relates to White House
business is subject to the Presidential Records Act, correct?
    Mr. Swendiman. Any document that involves official business
that involves the constitutional, the statutory, ceremonial
activities of the President or the immediate White House staff
is subject to the Presidential Records Act.
    Mr. Welch. Right, we are reciting the law, we are all in
agreement. It is the compliance with the law question that we
have. I understand it is not your job. So I don't want to be
asking you to do somebody else's job, you have your hands full.
    I guess I will come back to you, Mr. Stern, I am close to
the end of my time. What if anything can you do in order that
the National Archives have possession of the official
communications that may be there, or what can you do to make
certain that the National Archives can see that whatever
reasonable steps can be taken to recover that which is
available is done, so that the Presidential Records Act is
complied with?
    Mr. Stern. Under the PRA, we have no direct authority. All
we can do is ask them for and acquire. And then we also can
report to the Congress. Obviously, the Congress is aware of
this issue, so I think the PRA envisions that it is up to the
Congress when dealing with Presidential records to communicate
and work directly with the White House on----
    Mr. Welch. So here is where we are, just to sum up. You
have asked and gotten no reply. You don't know and somebody
else does, but they are not here.
    Thank you very much. I yield the balance of my time.
    Chairman Waxman. The gentleman's time has expired. Mr.
    Mr. Clay. Thank you, Mr. Chairman.
    Mr. Payton, one of the White House officials who we
contacted in preparing for today's hearing was Steven McDevitt,
who worked for you. We asked him whether there was any concern
about abandoning the e-mail archiving system and relying on
this ad hoc journaling process. He said there was great
concern. Let me show you an excerpt from page 7 of his answers
to the committee. He stated: ``There was a great deal of
concern about proceeding with the migration of Outlook Exchange
without having an adequate e-mail records management solution
in place.''
    Mr. McDevitt described in detail the risks that were
discussed within the White House on numerous occasions. One of
the major concerns was the risk of data loss. He said this:
``The process by which e-mail was being collected and retained
was primitive, and the risk that data would be lost was high.
The potential impact is that the system does not contain all
required data.''
    Ms. Payton, what are your views? Do you agree with your
staff that the archive system was inadequate and risked losing
    Ms. Payton. The challenge about his statement is it does
predate me. And this is also his technology professional
opinion. In talking with the staff on our go-forward basis, we
have improved the people, process and technology with what we
have to live with until we can get to a more comprehensive
solution. Back at that time, even if you had a more
comprehensive solution in place, if you don't have the right
processes to make sure it is running right, you can still end
up with the same result. That is why we want to get to the
bottom of our analysis and figure out if we still have any
resulting anomalies and then make a decision around doing a
restore. But to be able to comment specifically on things that
predated me, I am unable.
    Mr. Clay. But look, it wasn't just the internal White House
staff that raised the red flag about the archive system. The
committee has obtained notes from a meeting on January 6, 2004
between staff from the Archives and the White House. According
to these notes, Archive staff were also raising these very same
concerns with the White House. And the notes describe how the
Archive staff learned that the White House was converting from
Lotus Notes to Microsoft Exchange e-mail. Then in bold face,
the note says this: ``Messages in Exchange are not being
captured in ARMS or any other system external to Exchange. The
NARA team emphasized that EOP was operating at risk by not
capturing and storing messages outside the e-mail system.''
    What were the best efforts that the White House put forward
when they did not heed their own warning?
    Ms. Payton. Mr. Clay, I don't know if I have time to, I
would like to, if you would allow me, to actually walk through
sort of where an e-mail travels in the system.
    Mr. Clay. No, we don't have time for that, but I will say
this, in your previous testimony you mentioned how much it is
going to cost to retrieve these e-mails.
    Ms. Payton. Right.
    Mr. Clay. Well, you know, all of that is taxpayer dollars.
And it is such a cavalier attitude that it may be $50,000 1
day, $150,000 the next. But where does the care come in for
taxpayers' money?
    Ms. Payton. That is part of why we want to do the analysis
first, so we can have a very targeted list. If there are any
anomalies at the end of the work we are doing, we have a very
targeted list for the restore. So by having less days to
restore, we will save money as far as the restore that needs to
be done.
    Mr. Clay. And then no one there heeded their own warnings.
What was all of that about? Nobody said, wait a minute, maybe
we need to listen to Archives. Or maybe we need to listen to
our own staff. And nobody heeded those warnings. What is all of
    Ms. Payton. I wasn't there, sir, so I don't know.
    Mr. Clay. Dr. Weinstein, do you agree that the White House
process was primitive and that there was a high risk of data
    Mr. Weinstein. If that is what my staff decided after
looking at this process, I would have to agree that there were
some problems. What the nature of those problems were, I think
even Ms. Payton and Mr. Swendiman would agree that they were
working on a new platform and they didn't have all the answers.
    But I do want to make one point to you, Congressman, on
this issue of who cares about the taxpayer. And it is crucially
important, particularly for the cultural institutions in the
country, such as the National Archives, Library of Congress,
others, to be very sensitive to the fact that we can lose the
support of the American taxpayer very quickly.
    Congressman Welch, in his questions, had raised one
question with Mr. Stern, my colleague here. Basically, one
slight correction, I signed that letter, I drafted the final
version of that letter. So if the Congressman has any interest
in learning who has been trying to get the Republican National
Committee or whomever to return whatever materials they may
have, I will take responsibility for that.
    Chairman Waxman. Please speak up. We can't hear you.
    Mr. Weinstein. We have not responded, we have not asked
that question lately. We asked for the return of this last
year, we periodically question people. I guess we have to be a
bit stronger in our questioning, in our requests.
    Mr. Clay. But, look, Doctor----
    Mr. Weinstein. I will have that information to the chairman
by the end of this week.
    Mr. Clay. But Doctor, excuse me, it seems like everyone was
warning the White House about the risks of data loss. And the
White House's own technical people were warning them, and your
team in the Archives also warned them. Yet they continued with
the migration and they continued to rely on this ad hoc process
from 2002 until today.
    What troubles me is that these are e-mails documenting how
the Bush administration was making decisions. They are official
Presidential documents that the White House is required by law
to save and turn over to the National Archives. They belong not
to George Bush, but to the American people. But the White House
seems to have ignored numerous warnings from people inside and
outside the White House about its flawed approach. Do you have
similar concerns?
    Mr. Weinstein. More than anything else, I want whatever
materials may be in other locations like the Republican
National Committee or any other location, if they are official
White House documents, they belong with the White House, they
belong with the Archives or in preparation for coming to the
National Archives. My main concern here is with the future of
my institution, National Archives.
    Chairman Waxman. The gentleman's time is expired.
    Ms. Norton.
    Ms. Norton. Thank you, Mr. Chairman.
    Ms. Payton, I would like to reconcile your sworn statements
with what the committee has since learned, and perhaps you can
help us. On January 15, 2008, you filed a sworn declaration in
U.S. District Court here regarding the loss of White House e-
mail. In that declaration you criticized the chart produced in
2005, showing hundreds of days with no White House e-mail. And
here I am going to quote what you said in the sworn
declaration. ``I am aware of a chart created by a former
employee within the OCIO,'' Office of Chief Information Office.
    Now, that of course, anyone reading that declaration, would
believe that a single member created, staff person created this
chart perhaps indeed almost on his own. But the committee in
fact obtained documents showing that your office created a 15
person what you call message storage team to work on this
problem. This team documented its actions in very painstaking
detail and reported frequently to the director of
administration and White House counsel.
    Ms. Payton, I ask you, why didn't you mention this team of
White House officials in your sworn declaration?
    Ms. Payton. Ms. Norton, one of the things that I have
mentioned before is that because this is prior to my arrival, I
put the information together based on what my team has told me
as well as----
    Ms. Norton. You are unaware, are you testifying here that
you were unaware of this team?
    Ms. Payton. No, I am explaining to you is based on what the
team has told me, as well as information I had, there was a
group of people who put data together. But as far as----
    Ms. Norton. I am asking you, were you unaware of the
message storage team who worked on this problem?
    Ms. Payton. Ma'am, all I know is that they put data
together. They did not work on the chart. And that is how it
was presented to me.
    Ms. Norton. Later in your declaration, and here I am
quoting you again, you said ``The OCIO has reviewed the chart
and has so far been unable to replicate its results or affirm
the correctness of the assumptions underlying it.'' We got a
quite different account from Steven McDevitt, he is the former
White House employee who worked on this project. This is what
he said: ``Extensive testing was performed at that time to
ensure that the tools and the tabulation process was performed
correctly. An independent verification and validation also was
performed by a different set of contractors to ensure that this
analysis process was completed correctly and that the data was
correctly analyzed and accurately represented.''
    Ms. Payton, why didn't you mention this testing by the
independent contractors?
    Ms. Payton. I am not aware of that testing.
    Ms. Norton. You still are not aware of that testing?
    Ms. Payton. I am aware that Steve has made those
statements. We have a team that does IV&V. When I asked my
staff about the chart and the validity of the chart, one of the
things they said to me is, as far as they could tell, it had
not gone through an extensive IV&V process.
    Ms. Norton. And so no one made you aware--this is an
amazing testimony given the position you were in and the post
you held.
    Now, in your declaration again, it is a sworn declaration,
you stated that there was a ``lack of supporting
documentation.'' For somebody who said she didn't know
anything, you certainly had something to say in your sworn
declaration. Lack of supporting documentation. But Mr. McDevitt
told us that the chart itself was just a summary. He said the
complete analysis was 250 pages in length, it included the
complete background data and trend analysis. Why didn't you
mention, Ms. Payton, the 250 page supporting document in your
sworn declaration?
    Ms. Payton. That document had not been made aware to me. I
know that we produced a lot of documents in response to this.
So that document must not have been on the radar of my team to
inform me.
    Ms. Norton. My goodness, I don't know how you did your job.
You seem to have known nothing about it.
    Ms. Payton, in your declaration you stated that you have
serious reservations about the reliability of the chart. Well,
it would appear that the easiest way to get information about
the chart was to talk to the person who put it together, one of
those of course is Mr. McDevitt. In fact, this is exactly what
the Archives recommended to you. On November 6, 2007, Sam
Watkins from the Archives sent you this e-mail, and I am
quoting from it, Ms. Payton, ``It would be useful for someone
to contact the original author-requesters of the chart to ask
questions about its nature and meaning, the methodology used to
produce it, the shortcomings you have noted, and whether they
prepared any additional or related documentation.'' But when we
talked to Mr. McDevitt, he told us that throughout the entire
process, you never contacted him once, even though he worked
directly for you in 2006, while you were there. Why did you not
contact him, Ms. Payton?
    Chairman Waxman. The gentlelady's time has expired, but
please answer the question.
    Ms. Payton. At that point in time, when we were doing that
analysis, we had already found flaws with the tool. So talking
with Steve at that point, he probably was not aware that those
flaws with the tool that was used existed.
    Ms. Norton. I didn't ask you that. I said why hadn't you
spoken directly to Mr. McDevitt?
    Ms. Payton. After he left the EOP?
    Ms. Norton. Directly with him in 2006 while you were there,
Ms. Payton.
    Ms. Payton. He reported to me directly for a short time,
then he reported to the Deputy Director. I am not sure I
understand the question.
    Ms. Norton. Ms. Payton, look, I think the credibility
problems you present are patent here. If you did not know, then
you apparently tried not to know, even when the Archives told
you that someone who was working for you could in fact tell you
and again----
    Ms. Payton. Steve and I had multiple conversations about
records and----
    Ms. Norton. Why didn't you ask him any of the questions I
have just run down? If he had all this information, why didn't
you inquire?
    Chairman Waxman. The gentlelady's time has expired.
    Mr. Davis.
    Mr. Davis of Virginia. I think the time has expired and we
need to move on.
    Chairman Waxman. I think that question will have to stand
as a rhetorical question unless you have anything further you
want to add, Ms. Payton.
    Ms. Payton. No, that is fine.
    Chairman Waxman. Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman. Thank you to the
witnesses. I just want to preface my question by saying that, I
am trying to imagine people watching this, just sort of
ordinary folk watching this hearing. I have to believe that
they would find it completely implausible that this number of
e-mails, this number of days of e-mail traffic would just
disappear by accident. And I mean to imply what I am implying.
    But let me ask you, Ms. Payton, are you familiar, and I
know you weren't there at the time the White House decided to
abandon the ARMS system that was in place. But you are an IT
person and you kind of know this arena. Have you become
familiar with what that ARMS system did? Do you have any
understanding of what the structure of it was and how it worked
at all?
    Ms. Payton. I have a general understanding, because it
exists today. It still houses the Notes records. It was built
in 1994, and it was built actually for a system that preceded
Notes Mail. It had to be heavily customized so that it could
interpret Notes Mail and be able to actually store it in ARMS
for record keeping.
    Mr. Sarbanes. Did you ever find yourself over the last year
or two saying, gosh, I wish they hadn't abandoned that system
back in whenever it was, beginning of the term, because things
would have been a lot easier, we would have been able to
collect things in a much more deliberate fashion? Did you ever
find yourself saying that kind of thing?
    Ms. Payton. Obviously it would be nice. I try not to second
guess people that I walk in behind.
    Mr. Sarbanes. It would have been terrific to have had that
system in place. It seemed to be working extremely well. It is
inexplicable that the White House would choose to move away
from that and toward this other system. If I was somebody, if I
were somebody who wanted to get around the system, that wanted
to delete e-mails, make the record of my communications
disappear, the system that the White House moved to would be an
easier system to accomplish that, would you not agree, compared
to what had existed before? It certainly seems that way from
the testimony.
    Ms. Payton. Actually, Mr. Sarbanes, it is a little bit more
complicated. Because when an e-mail comes in through Exchange,
it automatically gets copied over to a journal. So for example,
if you were at the EOP and you were in the Office of
Administration, and let's say I was in OMB, if I e-mailed you,
automatically a copy will go into the Microsoft Exchange
Journal underneath OMB and then when you get your copy, it goes
into the Exchange Journal as well, underneath OA. Plus, it is
also in your in basket and my sent.
    Then when we do the PST archive, your record that is in the
OA journal moves over to the OA PSTs, the personal storage
tables which is also another Microsoft product. Then my e-mail,
which was under OMB in the OMB journal, would move over to
    Mr. Sarbanes. Well, my, from reading----
    Ms. Payton. So there are lots of different places that e-
mail would be.
    Mr. Sarbanes. Well, lots of different places also where
human intervention could alter the recording of the
information, it seems to me. But let me move away from you. I
do want to applaud you for all the things you are trying to do
now, but it strikes me as building a wonderful barn and
painting it a wonderful color of red and meanwhile, the cow is
out the barn and in a pasture somewhere, given what has
    I just wanted to ask the folks from the Archives, if 10 is
where you want to be now in the transition, on a scale of 1 to
10, anticipating that we are coming to the end of the term,
where would you say we are, from your assessment, on a scale of
1 to 10?
    Mr. Weinstein. Let me answer that two ways. I will say that
we will be a 10 by January 20, 2009. We will be a 10.
    Mr. Sarbanes. Where are you now?
    Mr. Weinstein. Somewhere in between. I won't give it a
number. But we have a way to go, but we will get there.
    Mr. Sarbanes. I applaud your confidence and I hope it is
well-founded, because we don't want these records to be lost.
    The last question I have, because I am running out of time
is, we have talked about these backup tapes, disaster recovery
tapes, very appropo term in this context, because the loss of
these e-mails strikes me as a disaster. So it makes sense that
they would be called disaster recovery tapes.
    My question is this: who has possession of those? In other
words, if we get to January of next year and the recovery
process isn't finished, but there is still out there material
from which you can conduct the recovery, where does that
material go? Who has possession of that? Does the Archives take
possession of whatever the apparatus is from which the recovery
can be conducted?
    Mr. Weinstein. I am going to let our expert on recovery
tapes deal with that one.
    Mr. Stern. I can describe what happened in the Clinton
administration, because they did have to undergo a tape
restoration project that started during the administration and
was not finished on January 20, 2001. And the Office of
Administration continued to be responsible for that project.
They rented an offsite facility up in Maryland. But the legal
custody of the records and in fact those backup tapes did
transfer to us. So the tapes became ours on January 20th, the
records became ours. But the work was still done by OA through
a contractor that we then coordinated with and helped
supervise. But they still did the work. So if the same
situation arose here and a recovery effort starts and is not
completed, I assume it will be the same case. The tapes will
become our legal property, but still need to be worked on by OA
until it is complete.
    Mr. Weinstein. I have to stress, Congressman, that the
financial responsibility for correcting the situation is the
White House's, not NARA's. It is the White House's.
    Mr. Sarbanes. Thank you, Mr. Chairman. I hope that
supervision by NARA is good come post-January. Thank you.
    Chairman Waxman. Thank you, Mr. Sarbanes. Mr. Platts.
    Mr. Platts. Thank you, Mr. Chairman. I would like to yield
time to the ranking member, Mr. Davis.
    Mr. Davis of Virginia. Thank you.
    Ms. Payton, several of the witnesses we have spoken to have
said that as far as they knew, Special Counsel Fitzgerald was
satisfied with the results that he received from searches
performed by the White House IT employees. And none of the
witnesses was aware of any plot to obstruct any Department of
Justice investigation. We asked former CIO Carlos Solari about
whether Special Counsel Patrick Fitzgerald was satisfied with
the White House production, and this is what he had to say:
``As far as I know, now, obviously I didn't have any first-hand
knowledge with him, but through the attorneys on the White
House side who were dealing with that, yes, otherwise, we would
still be busy at it answering questions, or there would have
been questions come back to us that say, we don't have the
confidence you are providing us with everything we have asked
for. But that wasn't the case at all.''
    David McCrosky reiterated the same point regarding the
Plame electronics searches on at least three occasions during
his interview when he said they, the DOJ, ``were always asking
for more. To my knowledge, the whole time I was there, we
always had everything they asked for. In fact, I am certain of
it. The only thing I know is that there were no tapes missing.
I do know that, and that everything DOJ wanted, we gave them
while I was there.'' McCrosky continued, ``in everything that
they, the DOJ, asked us, we, which was the White House IT
office, gave them. And all the feedback that I ever got was,
thank you, this is a ton of stuff, we appreciate it. Now, of
course, maybe it takes a long time to realize that there is a
big gap in dates. Maybe that is what he is referring to. We
were very concerned to do this right and make sure that he got
everything that the DOJ had asked for.''
    John Straub, who was a former director of OA, said of the
searches, ``in nine times out of ten, it did not end up being
that something was missing. It ended up being that we weren't
doing the search properly or the system wasn't gathering the
right information, or you were searching across two systems,
and it would find hits in one system and wouldn't find it in
another. Then you go back and refine the search terms and it
found the same things. It wasn't because there were documents
    Tim Campen, the former CIO on the Hill at the White House
and Director of OA had the following conversation with the
staff. ``Do you recall any concerns during that time, the whole
time that you were at the White House, these searches weren't
producing all of the documents that were out there on any given
subject?'' His answer, ``I remember that always, we always
asked ourselves that, are we finding everything. I would ask
that question and have debates about it, discussions about it,
about the technical parameters of the searchers and of the
accuracy of the billion searches that had to be created. The
general answer was yes, researching everything we can, and we
think we have constructed the right kind of searches. By the
look of the volume of e-mails we are getting, we are doing
something right, because we are producing an awful lot of
    Later Mr. Campen, when asked by the staff, ``so you are not
aware of any evil right-wing plan to obstruct the Justice
Department investigation,'' he replied ``no, no.'' And
specifically, with regard to Fitzgerald, Mr. Campen said ``no,
I was always admonished and directed by White House counsel
that this was a serious and full effort. We were always told
that through the spirit of this, we are complying with this.''
    Ms. Payton, I know you weren't at the White House during
these searches. But are these statements consistent with the
documentation you have reviewed in the course of your duties?
    Ms. Payton. It is consistent with the documentation, as
well as conversations with the current staff. I have asked them
if they know of any searches we did not satisfy, and other than
the one which we eventually satisfied, the Fitzgerald one, they
said they knew of none. So that is consistent.
    Mr. Davis of Virginia. Earlier when we discussed, certainly
with the backups, we have every reason to believe at this point
that we will be able to get the documents we seek, isn't that
    Ms. Payton. Yes, sir.
    Mr. Davis of Virginia. Let me ask Mr. Stern, is it true
that at least on two occasions, Sandy Berger had access to
original, uninventoried, uncopied documents that he could have
removed from the Archives without detection?
    Mr. Stern. I believe yes, he did have access to original
    Mr. Davis of Virginia. So we have problems with records
preservation at the National Archives, too.
    Ms. Payton, could you walk us through the process that you
and your team are undertaking to inventory all the White House
e-mail for each specific day?
    Ms. Payton. Sure. And I mentioned some of that in my
opening remarks, and I'll just kind of briefly go over the
beginning part of it and then give you more detail, because I
didn't go through all the details.
    From a technology perspective, we have three phases that we
are undertaking. We are in the midst of phase one right now.
That phase is where we introduced the new technology, where we
can actually read through the personal storage tables that are
on the archive, and we can actually read through, read the name
of the PST and from an inventory perspective, associate the e-
mails that are in that PST with the components and the dates.
    We are also undertaking some research to look at weekends
and holidays that may have low volume or zero days, because
there may have been maintenance going on on the weekends. The
way that would work, and this is standard pretty much for
exchange, is if you took mail servers out of rotation to do
maintenance on them for the weekend, what would happen is your
mail would be held. So if it was being serviced Friday night
and Saturday and it didn't come back online until Sunday, you
don't receive it until Sunday.
    Well, the old tool, as well as the new tool, have a
limitation where they could only track the received date. So it
could look like you have some messages ``missing,'' and you
need the opportunity to be able to actually read it at the
message level to see the sent and the received date. So that
process is underway.
    We are also looking at the network operations logs to see
if there is any documentation around outages as well. And then
when we finish that phase one, we will go through a QA process
and share that with NARA to make sure they are comfortable with
our methodology and our findings. Again, since we haven't gone
through the QA process, I am hesitant to give a lot of details
around our findings. But I can give you some trends. We have
identified roughly, somewhere in 10 million or more e-mails
than were identified as part of the 2005 analysis, using the
older tools. Those were the best tools they had at the time,
good work horses. I am not sure the team knew at that time that
those tools had those limitations.
    In addition, we have been able to work through the whole
entire inventory, not just for the time period in question,
because we are concerned about Presidential transition, we are
doing from day one of exchange all the way through now and will
continue to do that. We have also identified, I think I
mentioned it earlier----
    Chairman Waxman. Ms. Payton, the time has expired.
    Ms. Payton. Yes, sir. I am sorry. There are two more
    Mr. Davis of Virginia. If you could put this back into
writing, I think it would save the committee's time. But I want
to get it on the record, Mr. Chairman.
    Chairman Waxman. I understand.
    Ms. Payton. Yes, because there are two more phases, and the
third phase is actually sitting down with NARA to go over any
remaining anomalies.
    Chairman Waxman. My problem is after you are finished with
your phases, you will probably be out of office. Because this
is going to take a lot of time. The fact of the matter is, a
lot of the staffers mentioned by Mr. Davis in his comments left
the White House before you decided to abort the archiving
system in 2006 that had been under development for 3 years, and
after you made that decision, the White House failed to put an
archiving system in place.
    To date, the White House still has not installed a new
system. The bottom line is that from 2002 to 2008, the White
House has not had an adequate, functioning e-mail archiving
system in place. And now you have three or four phases to try
to correct the problem that has been created.
    I will be happy to have you go on, if that is what Mr.
Platts wants. Well, Mr. Platts is not here any longer, but his
time has expired.
    Mr. Davis, what do you wish to do? You asked the question.
May she submit an answer?
    Mr. Davis of Virginia. Yes, you can submit it for the
record. But I think the point is that this is a lengthy
process, this is a complicated, lengthy process and it just
doesn't jump out at you. This is not like a Google search.
    Ms. Payton. Correct.
    Mr. Davis of Virginia. And we have backups in this case
that we can always get. We can get the records if they don't
get it by a certain time.
    Ms. Payton. And Mr. Davis, our early findings indicate that
if we had done a restore based on the older analysis that had
been done, we would have restored days that we have.
    Mr. Davis of Virginia. Let me ask you, you are not trying
to run out the clock on the committee, are you?
    Ms. Payton. No, sir. We want to transition, the OCIO team
is very focused and dedicated on this. I speak for them, I
speak for myself, we are very energized about getting to the
bottom of this and transitioning the records over to NARA. This
is something we want to get done.
    Chairman Waxman. The record can speak for itself, because a
long time has already gone by without getting this information.
The Archives is concerned about it, Congress is concerned about
it, and you may not be intending to run out the clock, but I do
think you are aware that you don't have too much time before
this administration goes out of office.
    Ms. Payton. Yes.
    Chairman Waxman. Mr. Cummings, do you want to ask some
    Mr. Cummings. Yes, I do.
    Chairman Waxman. Before you begin, we have one item of
business to complete. Maybe we can do it quickly. That is the
motion to include in the record the interrogatories by Mr.
McDevitt, we had a bit of a debate earlier, Mr. Davis, do you
want to say anything more about that?
    Mr. Davis of Virginia. I will yield to Mr. Issa, but I just
want to note that this, your witness that you are relying so
much of your report on was given, I think, an accord that has
not been given to other witnesses that request much of the same
thing. We did not have a chance to cross examine, and we think
it would be a different record were that allowed. We just want
to put that on the record.
    Chairman Waxman. Mr. Issa.
    Mr. Issa. Recognizing I still have 5 minutes of my own
time, but look, you are going to put this in the record, Mr.
Chairman. But it sets a bad precedent to take an unsworn series
of statements that we can't even ask the witness whether or not
those were his own statements or not. Perhaps in fact they were
essentially pre-agreed answers that quite frankly might be
further fleshed out for accuracy if we had this opportunity.
    If the gentleman were not still a full-time Federal
employee, and for some reason was truly resisting, I would have
a different attitude. But we bring people in front of this
committee at their own expense often, this would be somebody
who would be paid by the Federal Government to be sitting there
today. I really believe that we are doing an injustice to the
long-term well-being of this committee on a bipartisan basis by
doing this today.
    Chairman Waxman. I would like to respond to you, I am
concerned about this committee and long-term considerations. As
a result, when we asked Mr. McDevitt to come in for an
interview, and he refused, we had a discussion on a bipartisan
staff basis what to do. Because we could have subpoenaed him to
come in and answer questions. Instead, both sides said, let's
send him interrogatories, and even let the White House review
the interrogatories. On that basis, he was sent
interrogatories, Republican and Democratic staff had input into
those interrogatories. When the Republican staff saw the
answers to the interrogatories, we suddenly got this complaint,
well, we didn't get a chance to cross-examine him, this is not
fair, on and on and on.
    I just think that we operated in good faith. We ought to
include the answer to the interrogatories in the record. And
the reason that Mr. McDevitt didn't want to come in in the
first place is because the White House put such strong
restrictions on what he could say that he didn't feel he could
even say what he needed to say in a deposition. That is how all
this came about.
    So I would ask the Members to support the motion to allow
the interrogatories to be a part of the record. Are we ready
for the vote?
    All those in favor of the motion, say aye.
    [Chorus of ayes.]
    Chairman Waxman. Opposed, no.
    [Chorus of noes.]
    Chairman Waxman. The ayes appear to have it.
    Mr. Issa. Mr. Chairman, reserving the right to question the
quorum, I would just like the record to recognize that although
you have said this was bipartisan, from this particular
Member's viewpoint, and from the staff that I am communicating
with, we believe that it has not been and that this is a form
of sandbagging, to deliver it. Recognizing we don't have the
votes, I would not assert the quorum, but recognizing that this
is not with the support of any Republicans.
    Chairman Waxman. Well, I accept that, and let me say that I
am going to talk further to both staffs, because we tried to
accommodate the Republican staff throughout this whole process.
We even had the Republicans talk to Mr. McDevitt for an hour
and a half, asking him any questions they wanted on Sunday
night. So we have tried to be accommodating.
    You are saying to me that your staff on the Republican side
does not feel that is accurate. I am going to pursue that with
Mr. Davis, because we are not trying to sandbag anybody. I am
not going to apologize to anybody, because I don't feel that we
have. But I want to talk to staffs with Mr. Davis after the
hearing is over, because I want these things not to be
partisan, but to get the facts out.
    Mr. Davis of Virginia. Let me say to my friend, we have
some EPA witnesses we hope you will give the same accounting to
that you gave to this gentleman. Thank you.
    Chairman Waxman. The vote has occurred and the Chair has
heard the majority in the affirmative. The Chair then calls the
motion approved by the committee, and the interrogatories will
be made part of the record.
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    Chairman Waxman. Mr. Cummings, you are now recognized for
your 5 minutes.
    Mr. Cummings. Thank you, Mr. Chairman.
    Mr. Stern, I would like to ask you about your perspective
on the White House's effort to get to the bottom of the problem
of the missing e-mail. The White House has known about this
problem since 2005, from the time that Archives first learned
about it, you repeatedly tried to get information from the
White House, is that correct?
    Mr. Stern. Yes.
    Mr. Cummings. Unfortunately the Archives wants to know,
just like we do, what caused this problem and big it is, and
what the White House plans to do about it. Is that an accurate
    Mr. Stern. Yes.
    Mr. Cummings. The problem is, each time the Archives asks
for an explanation, the White House promises that they have
almost finished diagnosing the problem. I call it paralysis by
diagnosis. The White House says, just give us a little more
time, and we will tell you the results of our review. But when
the deadline arrives, the White House kicks the can farther
down the road.
    For example, in 2007, you met with the White House
officials to discuss the missing e-mails. The White House said
they would tell you the full extent of the problem in 1 month.
They didn't give you the details in June, did they?
    Mr. Stern. No.
    Mr. Cummings. And at the end of June, the White House said
they would get you your results by the end of the summer. They
didn't give you their results at the end of the summer, did
    Mr. Stern. No.
    Mr. Cummings. In October, going further down this road, the
White House said they would have the results in 6 weeks. They
didn't give you the results in November, did they?
    Mr. Stern. No.
    Mr. Cummings. In fact, your own staff recognized the
obvious pattern. I just want to read from a summary your staff
prepared of a meeting between Archives and the White House
staff on October 11, 2007. I want you to pay close attention to
this, Ms. Payton, since you said that you all were not running
out the clock. Well, I call it rope-a-doping. And it states
this. This is the statement. ``We should note that this process
was supposed to be completed by the end of June, then the end
of September and the end of October in our previous briefings.
They are now saying that it will take about 6 weeks of work to
have any results.''
    Now, Mr. Stern, it is now February 2008. Matter of fact, we
are getting ready to go into March, and the White House still
has not provided you those results, have they?
    Mr. Stern. No.
    Mr. Cummings. Ms. Payton, it is your turn. The White House
has known about this e-mail archiving problem for almost 2\1/2\
years. Yet despite repeated inquiries from Archives and this
committee, you still have not even produced a current inventory
of the White House e-mails, is that correct?
    Ms. Payton. We----
    Mr. Cummings. Have you produced an inventory?
    Ms. Payton. We have one that has not been through a quality
assurance process yet for us to share with NARA.
    Mr. Cummings. So it hasn't been, in other words, it has
been created but nobody has seen it beyond----
    Ms. Payton. We need to go through a quality assurance
process before we share the results.
    Mr. Cummings. And when is that quality assurance process
supposed to be completed? Do you have any idea?
    Ms. Payton. First, we need to finish all the work in phase
one. So we have a preliminary inventory, we are still doing
some work in phase one. Then we will be doing our quality
assurance analysis. Our target, because the team and I sat down
and went over this, this has been a much more complex process,
and if NARA will remember, when we sat down in the summer, the
team very optimistically said we wanted it to be done by this
timeframe and estimated that it would be. It has proved to be a
lot more complex for a variety of reasons. So it has taken us
longer, because we are taking a lot of care, and it is bigger
than we thought it was going to be.
    Mr. Cummings. Well, certainly we want you to take care.
    Ms. Payton. The team and I sat down and we talked about our
timeframe as to when we would sit down with NARA and have
completed phase one and phase two. We are targeting the summer
that we would actually sit down with them, we would have
completed phase one, phase two and have all the remaining, if
there are any anomalies left around low volume days or zero
days, we would go over that with them.
    Mr. Cummings. And what does summer mean? Give me a date.
    Ms. Payton. In the June, July timeframe.
    Mr. Cummings. All right.
    Ms. Payton. So the first phase, as we complete it and QA
it, we are going to sit down and go over with NARA. The second
phase, it will be the same thing, we will do a QA, go over it
with NARA and then we will sit down and talk about if any
remaining anomalies exist, what type of recovery effort needs
to be done.
    Mr. Cummings. I just want you to clear up one thing real
quick. You said in your opening statement that after phase two
of your study, if you found e-mails were missing, you would
consult with Archives and restore from backup tapes. Can you
confirm that this will be done before the end of this
    Ms. Payton. I cannot confirm that, and I have read the GAO
report which has said that the previous administration, it took
longer than the administration. We hope with newer technology,
but I just don't know the size of the recovery effort to give
you an estimate to tell you whether or not it will be
    Mr. Cummings. We need a sense of urgency here.
    Ms. Payton. We absolutely have it, sir.
    Mr. Cummings. We do?
    Ms. Payton. Yes.
    Mr. Cummings. Oh.
    Chairman Waxman. Will the gentleman yield to me?
    Mr. Cummings. Yes.
    Chairman Waxman. Over a year ago you got a letter from Dr.
Weinstein, saying you have to get going with this thing, it is
going to take a lot of time. So you have the possibility of
going to the backup tapes and all of that. But he said it is
going to take at least a year for you to get all this
information. And still, we will have nothing on the RNC tapes
where there are backups in boxes. So I just must tell you that
I find it hard to believe that you have any real sense of
urgency when a whole year has been frittered away.
    Ms. Payton. We have not frittered it away. We really have
improved the overall inventory process, and it is something
that will benefit future administrations, as well as if we had
undertaken a recovery effort prior to doing this work. We may
have recovered days we didn't need to, as well as we might not
have recovered days we might need to.
    Chairman Waxman. Well, this all remains to be seen, but I
appreciate your position.
    Mr. Issa, you were recognized to pursue questions, but it
was under the 15 minutes and Mr. Davis asked, so you are
entitled to 5 minutes and I will recognize you for that
    Mr. Issa. Thank you, Mr. Chairman.
    I am going to followup where the chairman left off. Mr.
McDevitt is not here, and that is unfortunate, because there
are things that I am confused about, and Ms. Payton, I am
hoping you can straighten it out for us. He was the chief
information officer while he was at the White House, is that
    Ms. Payton. Excuse me?
    Mr. Issa. Mr. McDevitt was employed by the Office of the
Chief Information Officer and his primary responsibility was to
manage the electronic records systems of the White House, is
that right?
    Ms. Payton. He was to manage the new archiving platform,
that is correct.
    Mr. Issa. But essentially, he was the guy that used the
tool that wouldn't see any e-mail box that had more than 32,000
e-mails in it, right? So the tool that failed was his tool that
he used earlier, is that right?
    Ms. Payton. I don't believe that tool reported up through
Steve. But I am not sure.
    Mr. Issa. But at the time that tool was in use, it was a
flawed tool, and that was more than 18 months ago. So when he
said, for example, that there are 400 days of lost information,
that is wrong, because he has been gone for 18 months and
doesn't know. When he says that e-mails could be deleted, he
apparently doesn't know that there is a tracking log in the
Microsoft operating system, so he doesn't know that you can't
delete with impunity, that it is trackable.
    He obviously doesn't know that the tool that you used
earlier was flawed and the tool you are using now is at least
better. We will never know if it is flawed until a later
generation. But it catches many of the lost documents that the
previous tool didn't. Is that roughly correct?
    Ms. Payton. That is roughly correct, yes.
    Mr. Issa. I want to hit a couple of other points. And I
don't want to delve too much into software, but I think it is
fair that we recognize that software moves on and that
archiving in the digital age is not as easy as it might seem to
the public, and hopefully this hearing is good for the public
to understand.
    The Clinton administration used Lotus Notes, right?
    Ms. Payton. Yes.
    Mr. Issa. Lotus Notes no longer exists, right? It is no
longer supported.
    Ms. Payton. It is no longer supported. Some groups may
still use it, but it is no longer supported.
    Mr. Issa. I wouldn't want to do business with somebody
still using Lotus Notes or still using wooden wagon wheels. If
I understand correctly, though, certainly I checked with the
House of Representatives, we can no longer support it for
Members who want to stay on it. I assume that the robust tool
you are now using to go through and recapture the PSTs
deconflict the fact that PSTs often have multiple PSTs and you
don't want to have 40,000 copies of the same e-mail, so you
have to take care of the duplicates. Those tools didn't exist
for Lotus Notes, in all likelihood, because it was on its way
out by the time the Clinton administration was on its way out,
is that roughly correct?
    Ms. Payton. My understanding is that the way, because they
have a limited de-dupe process for ARMS, and it had to be
built. That is my understanding.
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    Mr. Issa. OK. So here we have a situation where the Clinton
administration is on a platform that has to be phased out.
Simply, they lost the war of who is going to supply e-mails. A
period of time goes on in which yes, we are dealing, to Dr.
Weinstein's concern, with getting good archives, but we are
also dealing with the fact that I can't play my Beta Max tapes
any more, either, and I can't seem to find anybody who has a
Beta Max player any more. And in a matter of a couple of years,
it is going to be hard for me to play my high definition DVDs
that were on the platform that now is being phased out.
    This is one of the challenges that I gather, for Dr.
Weinstein, that you face that is going to be difficult for you
as an archivist going into the future, no matter who is in the
White House and no matter how hard they try, is that correct?
    Mr. Weinstein. Yes, sir.
    Mr. Issa. OK. So certainly, the House of Representatives
needs to begin making sure you are funded, and that is part of
what we do in oversight, fund it to deal with ever-evolving
technologies where archiving isn't just putting them away, it
is being able to retrieve it, is that right?
    Mr. Weinstein. And to migrate where necessary.
    Mr. Issa. OK. I am deeply disappointed, Mr. Chairman, that
we do have a split in our otherwise bipartisan effort to deal
with the archiving and preservation of our Nation's records,
and particularly the office of the President. I am sorry that
as of today, Mr. McDevitt is not made available to us. I would
hope that in spite of the vote that occurred that you would
reconsider and allow for us to bring up some of these points
with a gentleman who I believe is at least misguided as to the
tools, capability and ongoing work by the White House as to the
White House's responsibility.
    Last but not least, Mr. Chairman, I think what you are
doing is going to prove in retrospect to be shameful as to the
RNC, that in fact, if we have no reason to believe that private
correspondence done outside of the White House is inappropriate
and are not willing to do so up front, we should not have
members of the White House administration here in order to ask
them questions about the RNC that is not within their purview.
    Chairman Waxman. The gentleman's time has expired. I want
to recognize the last questioner, I believe.
    But we have a lot of evidence that the RNC e-mails involve
Government responsibility, because a good number of the e-mails
from Karl Rove's account were to Government agencies. We asked
the RNC for the number of dot gov e-mails from his e-mail site.
And we saw that a good number of them were done.
    You want to assume otherwise. I am not surprised at the
partisanship. I have come to expect it. But I would hope that
something like this would not engender the partisanship that we
have seen. The Republicans are attacking Mr. McDevitt, who
worked at the Republican White House, you are attacking
everybody else and you don't believe the truth about the RNC e-
mails. Well, we will be glad to show you the documentation that
we have, but we have a vote on, so I want Mr. Burton to have
his full 5 minutes, and he is recognized at this time.
    Mr. Burton. Thank you, Mr. Chairman. I yield to my
    Mr. Issa. And I will only use one of his minutes, but Mr.
Chairman, although you spoke on time that doesn't exist under
the rules of this committee, I do want to continue working on a
bipartisan basis. This White House will close up and we will be
looking to preserve all the records that fall within the act.
Today, I am afraid we did not move further toward it. Candidly,
Mr. Chairman, constantly asking about Karl Rove, Karl Rove,
Karl Rove, who clearly had a reason to be involved in many
things which would have been inappropriate begs the question of
whether or not we have any real evidence other than ``we didn't
find e-mail traffic at the White House, therefore they must
have been doing Government work on private sites.''
    Mr. Chairman, I have to tell you, I have little doubt that
if we asked for the staff members of this committee on both
sides of the aisle to provide to us all of their outside
information that we would in fact learn a great deal. Mr.
Chairman, we don't have that right within this committee, and
we should not try to create it.
    I yield back to the gentleman.
    Mr. Burton. Mr. Chairman, we have a vote on. I yield my
    Chairman Waxman. Thank you. I just want to make a closing
comment and will afford the other side an opportunity for a
closing comment.
    The Congress is not required under any law to keep our e-
mails the way the White House has had that requirement under
the Presidential Records Act. I think it is appropriate and I
hope all Members of Congress would think it is appropriate that
law be adhered to, whether it is this White House or any other
White House.
    I must say, what I have learned today, which is, this
hearing is about this Presidential Records Act, I am quite
disturbed. We have been asking questions about what happened to
these White House e-mails that were sent through the RNC e-mail
accounts, including messages sent by key advisors to the
President during decisive periods of the administration. We
have established there are two boxes of backup tapes stored at
the RNC. These backup tapes may contain the missing e-mails.
Dr. Weinstein, the archivist, has said that it is essential
that these records be restored.
    Yet we have learned there appears there is no effort, no
effort to recover the missing RNC e-mails. And the only e-mails
that we want are those that relate to Government business. All
the evidence we have received says that these e-mails are a
vital part of the historical record of this White House. Yet
the White House has not asked the RNC to reconstruct the backup
tapes, and it has not asked for the backup tapes so they could
reconstruct them themselves.
    The effect is that the historical record will have major
holes. This may save the White House from embarrassment, but it
is an enormous disservice to the American people for the
historical record. While there has been more effort to recover
the missing e-mails from the White House, I am glad to hear
that Ms. Payton has been working hard to recover these e-mails,
and I am glad she has found e-mails that were previously
missing. But in this area, too, I continue to have grave
    There is a certain way to recover the missing e-mails; that
is to restore the backup tapes. The Archives have been asking
the White House to do this for nearly a year, but the White
House won't do this. The result is that it is impossible to
have confidence in what the White House is doing. We know from
the Plame case that the only way the White House could recover
key e-mails was using the backup tapes. But the White House is
resisting this practical step.
    It is important to remember what this hearing is about. It
is not about Sandy Berger, it is not about a California waiver,
it is not about whether Clinton did it or didn't do whatever.
It is important to know that this hearing is about getting a
complete record of what happened inside the Bush White House.
This will never occur unless the White House recovers the
deleted RNC e-mails. But we learned today that this is not
happening. It is a major disappointment and I think a clear
violation of the law.
    Mr. Davis is not here.
    Mr. Issa. He left me to close, Mr. Chairman.
    Chairman Waxman. OK, the gentleman is recognized.
    Mr. Issa. Mr. Chairman, I want to close in the most
positive and bipartisan way possible, because I believe that
there was a great deal of good done here. I think we learned as
a committee that the statute requires adequate, according to
the Archivist, records. We learned from Dr. Weinstein that in
fact, we are going to, even though we are not at a 10 day that
regularly, at the end of an administration, that there is this
going from a 2 or a 3 up to a 10 in the gaining of records and
that there was a high confidence that we would get to that 10
by the inauguration of the next President.
    I personally have no doubt that Ms. Payton or a successor
will be in fact still employed on those last few things that
may need to be done in a digital age. But I am also pleased to
see the skill and the understanding, although expressed in
phase, clearly that there is a process necessary to deliver all
the information that is required by the Archivist and requested
by this Congress, and that we will get there, but we will get
there as close to or below the $15 million fee that we could
spend if we simply threw everything at it.
    So while I share with the chairman a disappointment that
weeks, months and even a year can go by in this process, I
certainly will hope very much that we all understand that it
can take that long to get this information, and that this is
not something that is devious, at least as far as I can see,
that in fact, Ms. Payton, in good faith, is working toward that
and she has the confidence of the Archivist that progress is
being made. I think that is what we can take away from this
hearing on a bipartisan basis. I yield back.
    Chairman Waxman. That concludes our business for today. I
thank all the witnesses for your very generous time here with
us. The committee stands adjourned.
    [Whereupon, at 1:15 p.m., the committee was adjourned.]
    [Additional information submitted for the hearing record