Transcripts For CSPAN3 Key Capitol Hill Hearings 20140718

So, depending on a duty but that would be something to look into. You would investigate if they had a duty to disclose they had lost those documents . We would. Thats something you would investigate. We would. So you said emergency roarli relative to it depends, it depends on whether theres a problem with the fact that the commissioner at the irs knew in april and waited two months to tell us the American People and more importantly you. So youre going to investigate that aspect, as well, just like you would for a private citizen . All the issues relating to those emails will be wrapped up in the investigation that we do. Including delay . Including delay. So the delay, the fact that the commissioner at the Internal Revenue Service Delayed telling the congress, the American People, the fbi and the Justice Department is a matter that you are going to investigate . We are going do look into what the circumstances were around that, yes. Well, thats important. I would recognize the Ranking Member for his question. Thank you, mr. Chairman. Ill go with whoever wants to go. If mr. Cummings is ready. Thank you very much, mr. Chairman. Chairman issa, chairman jordan alleged that prominent democrats, mr. Cole, pressured the department of justice and the irs to single out conservative groups for potential prosecution. Both chairman allege in a may 22nd letter to the attorney general that a hearing held on april in april of last year by a democratic senator, quote, led to the Justice Department reengaging with the irs on possible criminal enforcement relating to political speech by nonprofits end of quote. A press release accompanying the letter allege that Department Officials and lois l erner quote, zusz eed singling tax xemplt citizens at the urge of a democrat senator. General cole, i would like to give you an opportunity to address this allegation and did the department discuss singling out and prosecuting tax exempt applicants at the urging of a democratic senator . No. What happened in that regard was just trying to answer a question of whether we had a mechanism for whether applicants for tax exempt status, if they had lied on their application for that status, if there was a mechanism for the irs to refer those types of false statements to the Justice Department for consideration for prosecution. Thats all that was. And so, in other words, if someone, weve been sitting here talking about crime here quite a bit. If someone allegedly committed a crime, would they or again i said allege. Would there be a mechanism by which to get that information to the Justice Department . Is that what youre trying to tell me . Thats correct. There was no targeting or anything like that. It was whether or not we had the Proper Communications and mechanisms if it was discovered by the irs if false statements were made, are they going to the Justice Department . Does the department take the direction of prosecution decisions from members of congress . No. Your statements is consistent with the statements of the committee. On may 29th, Committee Staff asked the Public Integrity section chief the following question. Did you receive any instruction from any member of congress to target tea party or conservative groups for prosecution . End of quote. He responded, quote, no. End of quote. May 6th, Committee Staff asked the leader of the crime branch directing him to, quote, target conservative organizations for prosecution end of quote. He responded, no, it did not. Mr. Deputy attorney general, are you aware of the department receiving direction from democratic members of congress to target or prosecute a conservative organization, or have you or any member of congress trying to get you to target any organizations . Im just curious. Im not aware of it. To the extent any such request was made we would not honor it. We would ignore it. So when you say you would ignore it, certainly, a lot of investigations are started by newspaper articles, i guess. You see something in an article and the fbi may see it and certain allegations are made, like that, but isnt it a fact that sometimes things that may appear in the newspaper may start a ball rolling with regard to an investigation and i was just wondering taking a natural extension of that, if someone were to Say Something and that seemed to indicate that perhaps some criminal activity had taken place or allege would you not pursue that . If somebody brought to our attention evidence of a crime, we would, of course, look into it. But if somebody wanted us to target somebody because of their political beliefs, we would not go down that road. And so, so, im hoping that those accusations we can put to rest. The, you know, going back to some questions mr. Chairman issa asked you a moment ago, the with regard to the investigation of miss lerner when you look at the facts that youve got, and im not asking you to get into that, let me just talk generally, and you pursue those facts, whatever they may be, and what happens . Does the group of attorneys get together and say, you know what . Weve moved forward with the case, again, im taking away miss lerner, talking in general, what happens there . What point do you determine that youre going to proceed and how does that come about . Generally, the way it works is the line attorneys involved in and learn the facts of the investigation. The investigation is conducted largely by the Law Enforcement agents. Many times the fbi. They may be working with the line attorneys and helping figure out what the information is thats needed. When they have gathered all the facts they take a look at what the facts are in light of the applicable law. And then recommendations are made to their supervisors as to what the resolution of the case should be and it could be any number of resolutions and the supervisors then review those recommendations. They may ask if more information to be gathered because certain facts may not be have been developed. They may agree or disagree with the recommendation. Any number of thing cans happen in those process but theyre done by the career people. Usually with input from the investigators. And through the line and division and Section Chiefs in the divisions that we have in the department. By career people. So, so that the record is clear, so all of this now going to miss lerner, there is no decision that have been made, i assume you can answer that question no decisions have been made. No decisions have been made. Everything is wide open. Is that correct . Thats right. I have nothing. Thank you. Gentleman, recognize the chairman of the full committee. Thank you. I can understand that no decisions been made but lets just go through this because i think its important. The ways and Means Committee did do a criminal referral. You are in receipt of that. Isnt that correct . Thats correct. And that, in fact, does give you a give basis of a number of allegations to invest. Thats correct. You took them clear sli. We do. So, you have serious allegations referred based on actual evidence produced from the ways and Means Committee voted on by that committee and referred to you which you are continuing to consider wrongdoing by lois lerner and have not made a final decision. Yes. Additionally, this committee and the u. S. House of representatives as an entire body on a bipartisan basis referred contempt to the u. S. Attorney. Isnt that correct . Thats correct. And the statute says that u. S. Attorney shall prosecute that. Is that correct . That i believe is the wording of the statute. At the current time u. S. Attorney has not prosecuted that. Isnt that correct . No charges have been brought do my knowledge. Under the statute, that criminal referral, that referral for contempt, is, in fact, a separate event from any other allegations and is not, in fact, subject to double jeopardy. Isnt that true . Im not sure what you mean by subject to that all charges need to be brought often in a related matter, need to be brought at one time otherwise its a question of piling them on sequentially. Contempt was, in fact, and, in fact, a separate event that can be you can go forward with separate from the ongoing criminal investigation of lois lerner. Isnt that true . Contempt is separate. Contempt is separate. So its not a charge that has to wait for the other charges and investigation. So today can you explain to us why the u. S. Attorney would not go forward with a contempt thats already been evaluated, voted out of the u. S. House on a bipartisan basis and bring it . Its not a lot of discovery, she came, talked and then decided to lawyer up, if you will, with taking the fifth and then turned around, talked some more, answered some questions and then reasserted the fifth amendment. The contempt information is available to you on video online. Why, in fact, is the u. S. Attorney not bringing it . What lawful right does he have not to obey shall bring the case . I dont believe it says shall bring the case. Number one. But shall prosecute. I dont think it says shall prosecute. Its not a may. Its a shall. Yeah. There we go. Shall have a duty to bring the matter before. So okay. Hes got to bring it before look. Im not a lawyer. I dont try to play one. Theres good lawyers here on both on the dias and behind the dias. He doesnt get to think about it and decide to do it. This should be brought forward for a consideration. The only question would be what is a reasonable time line. Would you please answer, do you believe theres a reasonable time line and if so would you name for that us . Every case has its own time and needs review. Theres been this doesnt say review it and look at it and think about it. It says we have made our decision. Hed shes been held in contempt. It is a question of when shall applies to bringing the case. Well, shall doesnt say he shall bring a case. Thats not there. The prosecutor retains discretion about whether or not a case should be let me read this verbatim to you because only apparently verbatim matters here. To the appropriate United States attorney, u. S. Attorney in the district, whose duty it shall be to bring the matter before the grand jury for its action. Shall bring it before the grand jury. Theres no discretion there, is there . I believe that the office of Legal Counsel when ted olson was in that position rendered it an opinion saying theres discretion, in fkt. Would you please grant us a yes or no . You know, absence of justice because you may think you may not have to enforce the constitution, you may not have to obey congress, you may not have to deliver information pursuant to crimes committed by the Justice Department in bringing fraudulent statements before the congress and covering it up for ten months, the only thing we ask for that mr. Cummings im sure would join me, if you dont think shall bring ill keep reading it appropriately. Shall be to bring the matter before the grand jury for its action, if you dont think that means in a period of time that would be reasonable to do it, then he shall do it, if you think its discretionary, would you give it to us in a legal opinion to change the law to change it to make it clear youre wrong. We will. I have one last question. Do you know a person named virginia seitz . Yes. Did she work for the Justice Department for approximately 90 days. More than 90 days. How long . I dont know. Was she working on criminal areas including wire fraud. She was the virginia seitz was i believe the assistant attorney general in charge of Legal Counsel. Okay. Is there any chance that during her tenure policy changed as to the enforcement of internet con line gaming illegal activity . Is there any chance any policy changed under her . I would have to go back and look. I dont know offhand. This committee is interested in knowing during her relatively short tenure apparently what role she played in evaluating any policy change related to the going after Online Gaming. We can follow up with appropriate demands if thats necessary but we would hope that you would inform us as to any policy change as to go after internet and online essentially, Online Gaming and any role she may have played in it. If you communicate your request to us, mr. Chairman we will do so. Gentleman yield . Of course i yield. Thank you so much. The only reason im asking for the yielding is to i want to join the gentleman. I, too, he mentioned my name an i am interested in seeing the olson opinion, but theres Something Else i want you to do, too. I want you to provide us with the history of how contempt has been dealt with through republican and democratic prosecutors, u. S. Attorneys. And any information that you may have with regard to this shall. I understand the gentlemans concern. You have the word shall there. And but i just want the know what the history has been. The history. And the olson opinion is just one part of that history. And the question of whether the statute usurps prosecutional discretion. I hope your people can get Something Back to us have that entire body of law. So whatever youve been doing, your tradition, so that well know what republicans and democrats have been doing. And i would only amend that ever so slightly to say please leave out of it or put separately the questions in which executive privilege has been claimed since in the case of lerner the case in point were talking about what we believe to be a criminal based on referrals from the ways and Means Committee who made statements before this committee under oath, asserted her fifth amendment rights and made more statements under oath and then reasserted and was held in contempt by the u. S. House of representatives so we are talking narrowly about somebody who came quite frankly not in any particular role. Shes a former employee of the government. But she came and was held in contempt. Not someone in which the president claims any executive or, you know, similar privile privileges. I understand. Mr. Chairman, thank you for your indulgence. Well follow up with a letter. Mr. Cole, we know that emails lerner sent odds the irs are missing. We know that she had communications with the Justice Department on several occasions in emails and we know that you are withholding certain documents from the committee. Is it fair to assume that some of those documents youre withholding actually are emails that miss lerner has emails from miss lerner to people in the Justice Department. I dont know if its fair to assume it. I dont know which documents are withheld and i dont know if its fair to assume can you guarantee us that none of the documents the Justice Department is withholding from congress are lois lerner emails . I cant guarantee. I havent looked at all the documents. We would like to give yhave documents. We have all kind of emails where its lois, can you send it to us in the format the fbi . You have documents, the only email that is are missing, frankly, this is why i raised the question earlier and nice if you would have maybe you have, but you wont tell us. Got a swasht, got a court order, seized the files right at did getgo. Maybe we would have known that all these emails were missing a year ago. But the fact that emails shes sent outside the irs are missing. She had direct correspondence with people in the Justice Department and withholding documents from the committee, the congress and more importantly the American People. Seems to me theres lerner emails in the documents youre withholding. Im not sure theres a valid assumption of lern ere emails we are withholding. I dont think thats a fair assumption. But what is fair to say is you cannot guarantee there are not. I have not looked at all the first of all, it is important for you to look at it testifying maybe give us more information about it but nice to get them. With that ill recognize the gentleman from pennsylvania. First off, general cole, would you like to respond to that last statement . Im not sure i heard completely the last statement. Fair enough. A couple of issues i want to touch on. And the prejudging and the screaming issues. First of all, i share something with mr. Gowdy of south carolina. I prefer technical, legal terms and when we talk about pre you know, when we talk about smid jons, scintilla might be better and prejudging, prenlgsing might be better and i want to talk about whether anything has been done to prejudice the investigation of the Justice Department. My colleague mr. Horseford touched on this earlier. Last month the Judiciary Committee held a hearing and they brought in fbi director james comi and went over there and chairman goodlotte asked him, can you explain where theres an investigation given that the president said there was not even a smid jon or a scintilla of corruption . And director comi, the director of the fbi said i mean no disrespect to the president or anybody else whos expressed a view about the matter but i dont care about any anyones characterization of it. I care and my troops care only about the facts. Theres an investigation because there was a reasonable basis to believe that crimes may have been committed and so were conducting that investigation. Now, Deputy Attorney general cole, do you agree with the fbi directors assessment that outside characterizations, even by the president of the United States, have no bearing on a particular investigation . Thats correct. Outside characterizations by anybody have no bearing on your investigation. When you talk about career prosecutors, line prosecutors, career investigators, does this apply to these people . It does. These are all career Justice Department investigators, attorneys, none of them are political appointees. Is it accurate to say that the department of justice does not take direction from the president on how to conduct ongoing investigations . We do not and we would not. All right. There was also an allegation of screaming going on by the oj, screaming at the irs. And im going to invite your avit your attention to the testimony of jack smith who as you know is the chief of the doj Public Integrity section. This was testimony taken on may 29, 2014. Representative jordan was present. And im going to brief to you a brief quote from that. Question, and this was a question to mr. Smith. If you direct your attention to the second sentence of the second paragraph below the block quote it roads, quote, by encouraging the irs to be vigilant in possible Campaign Finance crimes by 501c41 groups the department was among the entities, quote, screaming, unquote, at the irs to do something in the wake of Citizens United before the 2010 election. And the question was, are you aware of the department, quote, screaming at the irs to do something in the wake of Citizens United before the 2010 election . And the chief of the doj Public Integrity section said, no. Next question was at the october 8, 2010, meeting, did anyone at the department raise their voice at the irs, speak in strident tones, make demands on the irs . Answer was, no. By jack smith. And then the question was, are you aware of anyone at the department of justice placing pressure on the irs to influence the outcome of the 2010 elections and the answer was, no. And im going to put that same question in front of you, mr. Cole. Are you aware of anybody at the department of justice screaming at anybody at the irs to fix Citizens United or put any kind of pressure on the irs . No, mr. Cartright. Not at all. This is not something we would be doing. Were looking for criminal cases to be made or not. And thats it. Not aware of any screaming . No screaming. And you didnt do any screaming yourself i take it . I did not. Thank you, mr. Cole. I yield back. Mr. Cole, when the president of the United States makes a statement, a speech, does that have meaning, bearing, influence . On a criminal investigation when the president talks, he does an interview, givers speeches all the time. Sometimes talks in a way designed to send a message even to foreign heads of state so when the president talks, does that have meaning and influence . As a basic matter, it can, certainly. Sure. So when the president gives an interview where hes not telling a story, a joke, commenting on a serious subject matter, that has influence, that has impact, that has fans. Correct . Not on a criminal investigation. Im just saying in general. Im asking you, youre a smart guy. Lawyer done very well in life. An important position in the United States government and Justice Department. Whether the president talks, it has impact. It can. It should. Hes the president of the greatest country in the world. It should have impact. He asked congress to do a lot of things and seems not to have any impact. We heard him. We think hes wrong. Heres my point then. And i respect im like everyone else on this panel. I respect the good professionals who work in the department of justice, but dont you think its possible maybe even likely that in the back of even the best professional, in the back of their mind, they know that the president has said in a public way, in a very public way, nationally televised interview that theres nothing there . Theres nothing there. Dont you think that just somewhere deep back in there, may have just a to use the term my colleague, a scintilla of impact, just a bit of impact on the decisions of these great professionals who work in your agency . Ill echo the director. No, it doesnt. These people put it out of their minds and they go after the facts. Thats what they care about. And particularly in high profile cases like this, that happens quite a bit. And theyre very expert at putting out of their minds anything but the facts and the law on the case. So barbara boserman doesnt take this into account that the guy she gave a maxout contribution to, his campaign, goes on national cam pane an say there iss nothing there, its not anywhere in the back of her mind that this things already been prejudiced . Her job is to do that and she does gave to the president s campaign and the Democratic National Committee Hears the president who could be potential target of the investigation, when she hears it, it doesnt impact her at all . It does. She does her job professionally. You can say that for sure . Yes. She is not impacted . I have confidence in the career professionals that is amazing. I recognize the gentleman of florida. Thank you, mr. Chairman. Deputy attorney general cole, if the doj is investigating an individual or an entity, whens it ever acceptable if it is acceptable at all to conceal the fact that the fbi that evidence sought by Law Enforcement has been destroyed . I mean, i can see a civil case asking for specific things, a criminal case where a search warrant is issued. Is it acceptable to not disclose that to Law Enforcement . Again, as ive said with mr. Jord jordan, chairman jordan, it depends on the circumstances. They shouldnt conceal it or lie about it. It may or may not be a duty to tell about but they depend on the circumstances. So if you were, doj issued subpoenas asking for emails over a specific period of time and then that company responded saying well comply with it but if they had reason to believe they wouldnt be able to fulfill that request then that would be a problem if they had represented that to you, correct . Why. If at the time they represented that, knew they werent cop plying, thats a problem i if they didnt know at the time and then after sending you the response, they dpig youred out they were wrong, they have a duty to come to you and amend that response. Correct . Yes. They should come back and tell us. Okay. Heres an issue that i just i was confused about. The doj was not informed that emails had been lost or destroyed. Congress, obviously, wasnt until june. But according to irs commissioner the Treasury Department and the white house were informed in april. So, what would be the reason to disclose that to the treasury and the white house but not disclose to the doj or congress who are both conducting investigations into the matter . I dont know. Thats a question you should probably give to the irs. Does it bother you, though, they would have told the Treasury Department without telling the Justice Department . Theyre part of the Treasury Department so, again, you would have to ask them as to their reasons for doing this. How about the white house . Does it concern you that they would let the white house know and not tell the department of justice . I would want to know the circumstances and who at the white house and what was told, i just dont know enough information to answer the those circumstances, is that something that you think is appropriate to investigate . This will all be part of our looking into the emails, yes. Recently two federal judges have greeted the irss claim of lost emails with suspicion and they have actually are forcing the irs to come in and substantiate their claim that these things are somehow lost and not recoverable and we have people who have advised us saying, you know, we got da da from the challenger explosion, 9 11, all this stuff and a lot of people in the Data Community i. T. Say you can get the emails. So how would you characterize the department of justice . Do you greet did irss claim that these emails are simply lost because the hard drive crashed with skepticism . Were trying to find out if there is any way to recover them and do what we can to do that. Is it safe to say that if you were investigating a private entity and you wanted specific documents if they simply said, sorry, the hard drive crashed, that would be not that probably would not be something to simply accept at face value . Generally we ask the circumstances and facts behind a statement they couldnt be recovered. Lets follow up with the shall bring it. People are using different terms. Bringing something before a grand jury is not the same as prosecuting it at trial. Correct . Thats correct. So the statute does not impose a duty on the u. S. Attorney to bring the case to trial. Right . Thats correct. A duty on the u. S. Attorney to bring it to a grand jury. Is that accurate . The language of the statute and i dont mean to be just kind of fine point lawyerly you business theres a ted olson opinion from the statute to me is Crystal Clear and obligation to bring it before a grand jury and olson is saying, look, article ii, youre the executive branch. You cant force someone necessarily prosecute a case. I think generally thats true. If we told you to prosecute every Money Laundering case, you may get cases that are not merit or the you and this is a little bit different because we in congress have found reason for contempt. It was voted on behalf of the American People. So us imposing a duty to bring it to a grand jury and allow them to make a decision i think is a little bit different. Let me ask you this. The fact that we impose the duty to bring it to a grand jury, lets say you accept that. Do you think that imposes a duty on the prosecutor to ask that a true bill be returned or could you as a prosecutor consistent with that statute go into a grand jury proceeding . I dont necessarily think this is what should happen but could you go in in your judgment and ask the jury not to return a true bill . Well, obviously, theres an assumption in the question that it has to be brought before a grand jury and this ed toll son does aggress that for a second. Doesnt necessarily say thats the case. Bringing a matter before the grand jury for action, which is, i believe, the wording of the statute, leaves open any number of different resolutions that the grand jury could be asked to bring. Thank you. I yield back. Miss kelly is recognized. Thank you, mr. Speaker. Mr. Chair. Republicans allege that efforts to target conservative groups in the screening of applicants tax exempt status is a result of an overarching government conspiracy with the white house, the irs, the Justice Department, securities and exchange commission, the federal election commission, as well as other agencies. According to the republicans its vast conspiracy originated at the Supreme Court 2010 Citizens United decision. Chairman issa in my opinion issued a partisan staff report concluding that the Justice Department and the irs had, quote, internalized the president s political rhetoric lambasting Citizens United and nonprofit political speech. Deputy attorney general cole, to the best of your knowledge, did the president s political rhetoric about Citizens United cause the department to conspire against nonprofit political speech . It did not. Wait. The gentle lady, are you asking about the irs or the Justice Department . I havent yielded. The question was did the irs conspire . Of course they did. I havent yielded but do you have any reason to believe that Citizens United prompted the unwarranted prosecution of political organizations . No. Your answer does not surprise me because despite ten hearings, hundreds of thousands of pages of documents and conducting over 40 transcribed interviews, the committee has been unable to gather any actual evidence of this vast conspiracy. My republican colleagues claim exists. If fact, the evidence by the committee and the ig show that the inappropriate search terms first used by an employee in the cincinnati determinations unit and Inspector Generals report concluded that the inappropriate criteria, quote, were not influenced by any individual or organization outside the irs. Deputy attorney general cole, in the written testimony that you submitted to the committee, you wrote and i quote, i have the utmost confidence in the career professionals in the department and the tigta and i know that will follow the facts wherever they lead and apply to the law to those facts which you have said here. Is that guiding principle that the department uses in conducting all of its is that the guiding that the principle the department uses in guiding all of the investigations . Yes, it is. I think the committee should follow the same principles to the investigation of the irs. It is quite clear that the facts do not lead to the conclusion that Citizens United prompted a governmentwide conspiracy. Thank you for your testimony. Wait. The genting lady yield . Yes. Gentleman from i want to go to what mr. Desantis was just asking you. You referred to the olson case. And i have the olson case in front of me. The olson opinion, rather. And what it says is we believe that congress may not direct executive to prosecute a particular individual without leaving any discretion to the executive to determine whether a violation of the law has occurred. Thats what the opinion says. Its a 1984 opinion. Dated may 30th. And this was a contempt citation coming from the congress that he was talking about. So, i guess this is consistent with what you were saying. I mean, is this a so this olson case in the u. S. Attorneys office, i mean, its wellknown. Is that right . Theres certain i mean the ol season opinion. Is this something thats wellknown . Its something that you all, you know its known. I dont know if its wellknown. Will the gentleman yield . Its known about. Will the gentleman yield . Of course. Im confused. Is mr. Olson, is he a judge . I mean, what opinion are we talking about here . I thought he was a career employee. Im sorry. I yield back. I thank the gentleman from maryland. If i may answer. He was a political employee. Political appointee is the assistant attorney general for the office of Legal Counsel back in 1984 and the reagan administration. The office of Legal Counsel is asked many times and authorized for the executive branch of government to provide legal opinions binding upon the executive branch of the government to interpret various aspects of the law that the government has to abide by. Thank you very much. So you said he was a reagan appointee . Yes. Very well. Id like to since we have talked about this opinion, mr. Chairman, i would like to enter into the record. Without objection. Very well. Thats all i have. Gentleman from North Carolina is recognized. Thank you, mr. Chairman. Mr. Cole, let me come back to really what i guess im a little concerned. The Public Integrity section you said reached out to the irs. Is that correct . In 2010. In 2010 . Yes. My understanding is they made contact with the irs. All right. So what was the nexus of why they reached out . Im just looking at the account that i have heard from jack smith and from Richard Pilger who have testified, given transcribed testimony to the committee what they were doing at the time. I take their purpose of what it was. I think mr. Smith had seen an article in the newspaper about what appeared to be perhaps a misuse of the Tax Exempt Organization laws and wanted the find out if so thats your opinion . It is not my opinion. Thats my understanding of the facts. But as part of this investigation, wouldnt it be understand to important the nexus of them reaching out to the irs . Emails . Motivati motivations . Wouldnt that be important to understand . I think we are in the process of providie ining that and you d to them. Important for doj to look at that . Wouldnt that be part of the investigation . Thats not necessarily part of the irs investigation. Why wouldnt it be . Because, i mean, motives back and forth nothing happened. There was a brief meeting. There was a discussion about how it would be very difficult if not impossible to bring cases. There were no investigations started. There were no referrals made. Nothing happened after that. This was very, very brief and you say nothing happened. How can you give me that kind of specificity if youre really not familiar with what went on . You just said that prior to that. How can you be so precise and nothing happening . I dont understand. We have had people look at whether or not the Public Integrity section got any referrals from the irs as a result of that. So part of your investigation you have looked that the . We asked about whether that happened, yes. All right. So do you have an open investigation right now on april sands who used to be with the fec . Im not aware one way or another. April sands . Yeah. I mean, maybe you need to read the newspapers about this one. She was the one that actually violated the hatch act. Worked with the fec. Used to work with lerner. You are not aware of that . Not offhand, sir. I would encourage you to become aware of that because she admitted that she violated the hatch act and that quite frankly some of the twitters asking for donations while at work had been alleged. Wouldnt that be important that you look at that from the department of justice . You said she worked at the fec . Yeah. Im not sure thats part of the irs investigation. It may be well, let me just tell you. There was, miss lois lerner, its been reported they worked together. When they were with the fec. Would part of your investigation, wouldnt i wont go into the details as i said before of our investigation but thats i find it interesting. So you have never heard of april sands . Not sitting here today. I dont know about every single case that the Justice Department is investigating. We have 112,000 employees. Well, ive been led to believe that you guys are not going to look at it. And its troubling because this gets to the very heart of what we have been talking about. And so, would you commit here today to take a look at april sands and the fec and what violations of the hatch act may or may not have occurred . Ill admit here to find out what the story ena matter of looking into. All right. So, let me close with this. Youve done an exhaustive, i think according to to your words, Exhaustive Research in terms of these missing emails. Is that correct . I dont know if id use the word exhaustive. We have been been thorough trying to find the emails. All right. If youve been that thorough, does it not trouble you that it is very slow and forthcoming and that you have to read the Washington Post to figure out whats going on in terms of irs employees telling you what may or may not have happened over four or five months . I would prefer to have learned earlier. Okay. Would that be something that would be subject to investigation by the doj . As i have said, that will be part of our looking at the emails, all the things that surround it. So the fact that the commissioner of the irs didnt tell you months until months later, that troubles you . Were going to be finding out what happened does that trouble you . Not until i find out all the facts, congressman. If its true, does that trouble you . I need to find out you are afraid to say it troubles you . I dont deal with hypotheticals. All rightme. Ill yield back. Gentleman from nevada is recommendsed. Thank you, mr. Chairman. Let me say on the outset i still find it astounding the lack of the courtesy that the chairman continues to show to mebs of this committee, the fact that members continue to not receive equal time, that the chair interrupts members during our time. The fact that you badger witnesses and make judgments upon employees and their motivations without any evidence. I think all of this does a disservice to the role of the oversight function which is very serious and has a very clear responsibility to the American People for providing an oversight to federal agencies. And in this particular case, because there is so much concern about the wrongdoing that occurred at the irs. Im also, you know, alarmed by the ongoing efforts by some members of the committee to treat this process like a courtroom. We have three branches of government for a reason. And i know while some members may be versed in the law and may have previous careers in that arena, this is not a courtroom. And yet, there are those who continue to try to treat it as such. I want to speak to the issue of the special prosecutor and to ask you, mr. Cole, for your response. The attorney general in a january 8, 2014, letter responded excuse me. Chairman issa and chairman jordan in a letter to the attorney general claimed that miss boserman, a career attorney in the Civil Rights Division at the department of justice is leading the doj fbi investigation. However, this allegation was directly refuted by the attorney general in his testimony before the senate yush yair committee on january 29th, 2014. I wont read his full testimony. But so that theres no stone left unturned, Deputy Attorney cole, i would like to ask you the same question that was asked of mr. Holder. Is barbara boserman the lead attorney in the department of justices investigation or the member of a larger team . Shes the member of a larger team. She is not the leader of the investigation. Despite assurances from the department that miss boeserman is not the lead investigator, they continue to assert that her political donations have created a, quote, startling conflict of interest. This supposed conflict of interest is a key justification for some republican members request that a special prosecutor be appointed to conduct the criminal investigation. On may 2nd, 2014, days before introducing a resolution requesting a special counsel, chairman jordan said, we need a special counsel to help us get to the truth because the socalled investigation by the Justice Department has been a joke. The current investigation has no credibility because its being headed by a maxdonor whos financially invested in the president s success. Mr. Cole, is there any merit to allegations that miss bosermans involvement destroys the credibility of the Justice Department investigation . No. I dont believe theres any merit at all. June 26th, the department of justice sent a letter concluding that the appointment of a special counsel is not warranted. Can you explain the determination as to why the special counsel is not needed . We look at the regulations. We go by law. In this these matters and we look at what the regulation is a thats applicable here and we are talked about it already in this hearing. Regulation at 45. 2 and miss bosermans activities dont come anywhere near that qualification. Theres no reason to take it away from the normal regular order of career prosecutors doing their job with lots of other people involved. Fbi, tigta, other people in other divisions and sections in the department. Shes part of a much larger team. And theres no reason to take anything out of the normal course and the normal order. Thats usually the best way to do an investigation. Thank you. Well then, i would assert rather than wasting more taxpayer money on a special prosecutor, congress should be focused on addressing some other pressing issues facing our constituents and, again, mr. Chairman, i deplore you to please provide a level of decorum and civility so that those of us on this committee who do want to get to the truth and have a fair and impartial process can do so without having an abusive setting in which to operate. Thank the gentleman. Mr. Cole, does barbara boserman have a financial interest in the president . I dont believe so. When you give a Campaign Contribution you are not hoping good things happen . You dont have a financial interest. I know several leading ethics attorneys in the United States have said its not even close that theres a conflict of interest just from the 112,000 employees at the department of justice, you couldnt find someone without this perceived financial interest . There is no perceived financial interest, mr. Chairman. There is by the American People. Im not sure agree with that. Youre welcome to come to my district and talk to folks. They think there is. Gentleman from arizona is recommendsed. Thank you, deputy general cole. Im a dentist and the little minute things i can smaller. You get my point. Can you tell me a little bit more about the statute of 6103 . Can you tell me the privilege information and who gets that 6103 . Im not an expert in 6103. Its part of the tax code and it deals with protecting taxpayer information from disclosure except in circumstances. Okay, so im going to make a comparison, i guess. Being a dentist, i have to know h hippa regulations and osha, im not excused from that, right . Thats correct. When were talking about 6103 within the irs or doj or executive branch or anybody working within the federal government, theyre pretty astute as to who gets 6103, right . They should be. Does it give them an excuse if they violate that . I mean, when im in under a malpractice case i dont get an excuse from hippa or osha, do i . Not that i know of depending on the circumstance thats where i want to go here. Im talking from america. America wants to make sense of this jargon, this legal jargon. Does anybody get away with 6103 . If you violate 6103, if you violate the provisions, you should not get away with it. But it depends on the facts and circumstances, as with any case. Wait a minute. You just told me as a regular citizen i cant get away with hippa and osha violations but i can get away with a 6103 . No, thats not what im saying. Im sure not every single hippa or over sha prosecution is dealt with. Serious ones are. I understand. Thats what im saying. When we share 6103 there has to be an explicit ask from odoj . There has to be an approval the irs as i understand it approval from the doj . From the irs to share 6103 information, they have to possess that. Do you have that in your possess from miss lower business learner . Im sorry if. Have what . Permission to share 6103. She sent you a disk with 1. 1 million applications with some 30 individuals have privileged information, 6103. The reason i bring that up is im hampered as a member of congress with pertinent information or 6103. And this is a willynilly just flip pant aspect of sharing a disk. She knew it was on there. I dont know that she knew there was 6103 information on there. It was represented to us at the time it came that there was not. And i dont know if shes the one who sent it or if someone else from the ira shes the one whoa, whoa, whoa. Thanks, lois. Shes the one that has the correspondence with the fbi in regards to the format of the disk. That doesnt necessarily mean she prepared the disk or sent it. She has oversight of that, right . I dont know if thats within her control or not. I just dont know. But the question is whether or not, whoever sent it knew there was 6103 information on it. Well, shes been involved in this regards of the leak of this formatted aspect because shes the one talking to the fbi. Where im going with this is it gives me lenient more pertinent information if im a learned person that there was a violation of 6103. Wouldnt that if im a learned person . Generally there has to be an intentional violation. The question was whether this was the information that was included, whether it was inadvertent or whether it was intentional. At the time it was provided, we were told that there was no nonpublic information. Then once again you were told there was no nonpertinent information and there was nonpublic. Nonpublic information. Once again to me this brings this issue up of this being pertinent information and that, when Congress Says that were doing contempt charges, when were looking at the criminal or civil violation of an oath of office, doesnt that give us some aspect of hedging our bet . Im not sure what you mean by hedging wouldnt this kind of go in the mindset of a u. S. Attorney that they would actually bring forth contempt charges issued by congress . I believe the u. S. Attorney for the District Of Columbia has the contempt citation and is reviewing it. Has assigned it to somebody and the matter is being reviewed and worked let me ask you a question. You keep bringing up this olsen ruling. Isnt that a subjective and an interpretive ruling when the statute is very specific . The opinions by the office of Legal Counsel, when they issue formal opinions, are bindology the executive branch. But isnt it also, when theres a conflict between the legislative intent of the language and the executive branch, that we have to have a better review so just one interpretive aspect would not be good enough im sure somebody could probably challenge that in the right forum in court if they dont agree with an olc opinion. Generally the structure is set up for olc is they are the source of legal advice for the executive branch. Well, thank you. Mr. Chairman thank you, mr. Cole. Are you interrupting me . Isnt there decorum . I was asking that the chairman i guess ill yield. Gentleman from nevada is recognized. I was asking whether the chairman had made a determination on my request for unanimous consent to enter the documents i apologize, i forgot to look at that. If we can take a look at documents, well look at it. Gentleman from california. General cole. Im glad you brought up this whole question. This is a little small, a little complex. But that org chart up on the board shows the attorney general followed by you followed by a whole group of associates followed by all the division chiefs. Virtually all of those people are political appointees, arent they . Many of them are. The virtually all. You and the attorney general and your direct reports are political appointees . By and large most of them are. Some are career. But the vast majority are political appointees even if theyre career, theyre career people who serve at the pleasure, i mean, you can move them around . Some. Theyre in the scs service and theres rules on that. But the vast majority of the assistant attorneys general and the associate attorney general are political appointees. And the head of the Civil Rights Division . Right now that person is an acting person and is a career employee. But they serve at the pleasure of you . Thats correct. Although theres certain Civil Service requirements you could move them to some other position . That would probably be true. They keep their pay but lose their job. And the Criminal Division . Same thing. That person is a political appointee approved by the senate. So when we talk about miss bosterman and the team shes on, everybody practically from her team all the way up to your boss, youre all political appointees who control their lives and so on. So when the question was asked and the gentleman from nevada left but i think fairly he was saying he was asking you and you answered, of course, we dont need a special prosecutor. Dont you understand, the American People see you as a political appointee. They see your boss whos been held in contempt by the house for failure to comply, they see the Supreme Court finding that those legal opinions you seem to have get 90 against you. Now, im going to go to one quick one. Your legal opinions included, your brief in fast and furious, didnt they, before amy berman jackson, right . Im sorry, our legal opinions . Your legal opinions led to those briefs in the fast and furious case thats currently in the District Court in washington . We have our lawyers in the Civil Division who draft those okay, so your legal opinions were that you didnt have to provide them and that you were immune from having to provide them and that it and specifically your opinion was that she didnt have the right to adjudicate that, wasnt that so . I believe that was the position we took. And didnt judge jackson say just the opposite, that she did have the authority and that she found the same as judge bates did in earlier case that your premise was wrong, and werent you relitigating the exact same thing that president bush had lost in the conyers case . We were stating everybody litigates positions constantly in okay, so youre part of an administration that can relitigate that which has been decided. Just yesterday you decided that there was an inherent your administration decided there was an inherent right not to deliver a federal employee, even though in the Harriet Miers bolton case it was made clear that depositions and witness subpoenas were, in fact, binding. So the strange thing is, when is you talk about legal opinions, and i appreciate the former solicitor general and how well hes held in regard. But what youre saying is, you pick an opinion and the opinion can be wrong but your opinion that is you dont fall under us, that in fact our oversight is irrelevant, that you dont have to answer our questions, you dont have to produce documents, and you can withhold thats been a consistent pattern in this administration. And just yesterday, the president of the United States asserted a brandnew right, an inherent right not to deliver a political appointee who serves and interfaces with the dnc and the dccc the Democratic National committee and the Democratic National Congressional Committee works directly with those heads to plan the president s targeting of races to support democrats for their reelection on a partisan basis, and were not even allowed to hear from that person because theres an inherent right not to produce that. So when you; you say here that you stand and the attorney generals letter is well thought out that you dont need a special prosecutor, do you know how absurd it sounds to the American People . Absurd it sounds to the American People that you dont need a special prosecutor because all you political appointees overseeing a team of people who may at the lowest level actually be career people hoping to move up, that you political people arent influencing it, that theres no influence . I just find it amazing. I know mr. Horsford has left and im sorry hes left because he would get an opportunity once again to take the party line. Youre not prosecuting a contempt of congress because youve got this new opinion that shall doesnt mean shall present to the court, or in this case to the grand jury. But you havent given it to us and todays the first time we hear about it. So i join with the chairman in reiterating that we need a special prosecutor because youre a political appointee, your boss is a political appointee held in contempt by congress, the people who work for you work for you at your pleasure, and youre controlling an investigation that is slowly reaching no decision, when in fact lois lerner has been found by a committee of this congress to have violated laws as she targeted conservatives for their views. This committee has produced a massive document showing that lois lerner targeted them and not liberal groups, and yet you sit here today implying that youre relying on some wellknown, more conservative individuals decision as though were supposed to believe that. Ive got to tell you, when the gentleman from nevada talks about contempt, yes. We have contempt for the man you work for because, in fact, congress has as a matter of record held him in contempt for failure to deliver documents. Your offices implied that a federal judge had no right to even consider a case that was directly on point, a nixonera point, of lying to congress and then refusing to deliver documents related to those false statements. I am ashamed that you sit here day after day implying that theres no reason for a special prosecutor. The whole reason you want an independent prosecutor is not to be independent of somebody down low but to be independent of you. Mr. Chairman, i thank you for your indulgence and i yield back. I thank the gentleman. And i would just well, let me do this. One other line of questioning here, mr. Cole. And i know youve been here were almost done because we have votes on the floor. August 27th, 2010, then chairman of the White House Council of economic advisers revealed private taxpayer information about Koch Industries in order to somehow imply they didnt pay their full amount of taxes. How he knew this information and whether or not he inappropriately reviewed kochs 6103 protected Tax Information remains unknown. My question to you is this. If a white house employee, without 6103 authority, viewed 6103 protected information and made that public, would he or she what they learned, what he or she learned from that information, would that be a crime . You know, id have to have all the facts and circumstances. What generalliness when theres disclosure of 6103 information, is tigda for the tax department, the irs, investigates the matter, determines whether or not they believe theres been a criminal violation of 6103, and in they do believe there has been one they present it to the Justice Department for consideration. Have you guys investigated this matter . This is are you have you or are you going to investigate this matter . This is it depends on whether tigda has determined whether or not this matter presents itself with evidence that there was criminal activity. So thats up to tigda to decide in the first instance. Okay then ill let the Ranking Member have some time before we conclude. I just want to go back just to reiterate this. It so is frustrating to me and it is so frustrating to so many of the good folks i get the privilege of representing in the Fourth District of ohio. When, in fact, you have the fact pattern we do, the fbi leak together wall street journal no ones going to be prosecuted, the president prejudicing the case with his comments about no corruption not even a smidgen, the fact that Barbara Bosserman is the lead vest gave, the fact that Richard Pilger and jack smith had interaction with low ris learner in 2010 and 2013, that you had a database of 1. 1 million pages of taxpayer information, donor c4 information, you had it four years, some of that information was confidential. All that fact, all that cries out for a special prosecutor. And i would think you would want it just so you can say, look, were going to get to the were going to be as unbiased there would be a welcome thing to do, to find someone that republicans, democrats, everyone can agree on. Fine. Let them do the investigation. That would be something seems like you would want. As mr. Gouty pointed out and others have pointed out, if that doesnt warrant a special prosecutor, i dont know what does. I do not what when i look at the elements contained in the statute, i dont if that doesnt meet it, i dont know if you ever could meet it. With that ill end. I do thank you for being here today, mr. Cole, and i will yield to the Ranking Member. Thank you, mr. Chairman. Just a few points i want to cover at the end of this hearing. Number one, i want to note that the chairman of the full committee was highly critical of our fellow member, mr. Horsford, noting that mr. Horsford had left the room. The fact of the matter that is we have been called to vote and we have less than i think seven minutes on the clock to go vote. Thats why mr. Horsford was not here and was not here to defend himself against the charges made by the chairman of the full committee. Secondly, before we let you go, mr. Cole, i want to i think i speak on behalf of the full committee that we all really want to know what happened to those missing emails, all of us. We are all somewhat skeptical that they cant be recovered in some fashion. All of us. And we urge you to do your utmost and urge your colleagues to find those missing emails. Because when there are emails missing and it makes people suspicious and then it leads to unfounded charges and reckless allegations, and this is an arena where reckless allegations find a home. And so i think it would make a lot of the sense to redouble your efforts to find those emails. I us a want to mention, a lot has been made in this hearing today about improper influence on the irs. Having to do with Citizens United and the way that the irs folks were targeting certain 501 c 4 groups. I want to mention here that the Inspector Generals report, mr. George, found that lois lerner, the former director of exempt organizations at the irs, did not discover the use of these inappropriate criteria that we are all talking about until a year later, in june 2011, after which she immediately ordered the practice to stop. This is something found by will the gentleman yield for just one point of clarification . Certainly. We have been going back to this tigda report that says that she didnt know until june of 2011. When the majority of the tigda report were based on emails. Now that we know that e mails are missing, to make that conclusion is hard. And i just want to point that out. I yield back. Its a fair point. I want to go on. I also want to point out that the Inspector Generals found that employees subsequently began useing different inappropriate criteria without inspector knowledge. The Inspector Generals report, mr. George, stated, and i wrote, the criteria were not influenced by any individual or organization outside the irs. In other words, russell george, the Inspector General, whose report brought here before this committee started the firestorm that has been raging for more than a year and a half, his report said flatout that these irs people were not influenced by any organization or individual outside the irs will the gentleman yield . I yield. One of the reasons is because we didnt have the emails from the Justice Department and lois lerner. We got those because of foia request. Other than that we would never have had mr. Pilger and mr. Smith in for deposition. Mr. George didnt have that information in his hand. And that let let the witness answer a question here. Mr. Cole, are you aware of any information to the effect that the Inspector Generals statement there is incorrect . No. The understanding i have of the interactions between the Justice Department and the irs on those two meetings was that the irs in the first one said theres really nothing we can do here and nothing came of it, and on the second meeting there was never really any substance discussed. It never was followed up on. I thank you for that. I yield back, mr. Chairman. The point im making is, thats the time frame that thats the time frame where the emails are lost. Im not even sure the irs was going to tell us they lost emails but for the Judicial Watch foia request which uncovered the Richard Pilger lois lerner correspondence, lois lerner email. Once we got something from justice, then wait a minute, we better let them know we lost all the emails from that time period. And mr. Cole has told us today that maybe some of the documents theyre withholding from the committee are more of that correspondence. I didnt say that. You said you cant guarantee its not. Thats correct. Thats correct. So because i havent seep them. I just cant answer your question. It would have been nice if you had looked at them before you came here to testify today, then you could have answered that question, right . I wish youd have done your homework there, know what documents you would think you would know what documents youre withholding from the committee. I know were in the process of gathering and the checking them and that process is not done yet. Weve been trying to get you here, we accommodated your schedule, you knew we were going to ask about the stuff youre withholding and you didnt review it . Not the specific documents because you didnt review it you cannot guarantee some of those documents youre withholding are lois lerner emails i cant tell you they are either. I know you cant tell us either way you didnt look at them. Thats correct. You would think youd laugh reviewed the documents youre not going to let us see. Youd think. I think my Ranking Member would the Ranking Member would agree with that. You should have reviewed the stuff and you didnt do it. Thats the whole point. We would have not known lois lerner emails were lost but for the Judicial Watch doing the foia request. Richard pilger was talking with lois lerner in 2010 when the targeting started. We would never have known that. Now you tell us we never even weve got to vote, almost out of time. I want to thank the deputy general for being here and the committee is adjourned. On our next washington journal, well get the latest on the Malaysian Airline crash in eastern ukraine. Then a look at the longterm federal budget outlook. Well talk to maya mcguinness. This weekend marked the 45 the anniversary of the apollo 11 moon landing. Nasa administrator charles bodilien and then space analyst miles obrien will join us to discuss the history and future of u. S. Space exploration. Well also take your calls and you can join the conversation on facebook and twitter. Washington journal live each morning at 7 00 eastern. Cspan radio and audio now. 2026268888 to hear congressional coverage, Public Affairs forums, washington journal. Listen to a recap of the days events at 5 00 p. M. On washington today. Hear audio of the five networks sunday Public Affairs programs beginning sundays at noon eastern. 2026268888. Long distance or phone charges may apply. Friday a discussion on military personnel costs. The Bipartisan Policy Center and the American Enterprise institute cohost the event live at 9 00 eastern on cspan2. Tomorrow at 10 00 a. M. Eastern, a look at africas future development goals. The center for strategic and International Studies hosts the event starting at 10 00 a. M. Eastern on cspan3. So were here at Salisbury House in des moines, iowa. And its a home that was built by karl and ed death weeks in the 1920s. Carl weeks was a man of many and varied interests. One of the most notable legacies of his interests are his amazing collections that both he and id dith amassed in terms of artworks, sculpture, the library collection, its an amazing collection of rare, limited, firstedition works, medieval manuscripts. Its incredible. So carl weeks collected the books that he collected not only because theyre important historical works but also because he believed that books themselves were works of art. And had a worth beyond the words on the page. So he collected almost every edition of leaves of grass. By walt whitman. Leaves of grass changed over time, added poems. For carl it was the art of collecting. Carl also collected a variety of first editions of Ernest Hemingways work. So this is the green hills of africa by hemingway published in 1935. And this is a great piece because it illustrates the personal relationship that existed between carl weeks and ernest hemingway. So this inscription, to carl weeks, instead of a drink at penas with very best wishes, ernest hemingway. Explore the history and literary life of des moines, iowa. Saturday at noon eastern on cspan2s btv and sunday afternoon at 2 00 on American History tv on cspan3. Thursday, gms Ceo Mary Barra appeared before a Senate Commerce subcommittee on the delayed ignition switch recall. During that hearing, senator Claire Mccaskill called for the removal the companys general counsel. Heres a look. Mr. Milli can, i want to spend my time on my first round with you. I want to make sure everybody understands what punitive damages are. What punitive damages are. For lawyers, that is a blinking red light. Punitive damages in our system are designed to punish corporations. Or people. For conduct that is outrageous and egregious. It is a method by which justice can be done by punishing bad behavior. A pattern was emerging at General Motors for almost a decade about these cars. There was some confusion because of deceit on the part of at least one engineer. But in october of 2010, your lawyers this wasnt a plaintiffs lawyer that was out there making a frivolous lawsuit. Your lawyers that you hired said, you are possibly subject to punitive damages over the way you have handled this problem in this automobile. That was in october of 2010. And i believe you were general counsel then, correct . That is correct. Again, in july of 2011, your lawyers told you that there is a potential for punitive damages because of this factual scenario. You were also general counsel then, correct . That is correct. And at that point in time, Lucy Clark Dougherty, in july of 2011, she was general counsel for north america. Correct . I believe she began in that position in march of 2011. Im thinking it was in 2012 but i could be wrong. Well, my document says it was march of 2011. Ill take your word for that. Then in april of 2012, another one of your outside lawyers warns your department that you are subject to punitive damages. Which could be millions of dollars. With a corporation the size of General Motors. At that point in time, you were general counsel. That is correct. And Lucy Clark Dougherty was, in fact, general counsel for north america . That is correct. And again, in april 2013, almost the same time that you had the bombshell dropped on you in the deposition, where degiorgio was confronted with a basic Engineering Task that had been done showing the switches had been switched out, had been changed, the part had been changed. Once again you were warned about punitive damages. As a company, that is correct. Okay. So you have a legal obligation as general counsel to report material events and liabilities to securities and exchange commission. Did you ever do that about thissish on . On the issue of punitive damage in this. On the issue of this product defect and the problems surrounding it, have you ever reported it to the s. E. C. . Not up until the time that this became known have we made any disclosures to the cell. The time that you knew it, not your Legal Department. Your Legal Department knew it. No, no, im talking about from the time i knew forward. Im excludeing that. Before that, no, we had not. So at the time you recalled you told the s. E. C. . Subsequent to that we may have made a filing with the s. E. C. About the example niche switch recall, that is correct. What about the legal obligation to inform the board of directors . Were they aware that your lawyers were telling you, this car is going to cause you punitive damages . They were not. And what about financial reserves . Were you entering into the books the financial reserves necessary to cover this liability, which is your obligation as a general counsel . We were not entering any reserves to cover punitive damages. No, we were not. So i dont get how you and Lucy Clark Dougherty still have your jobs. Can you explain that to my . Ms. Barbara, i think youve done a lot of good work since you took over. I dont know not for the life of me this is either gross negligence or gross incompetence on the part of a lawyer. The notion that he can say, i didnt know. I respectfully disagree. I have made the promise to fix what happened in the company to make sure that were dedicated to safety, were dedicated to excellence, were well on our way, weve made significant change. To do that i need the right team. Mike milliken is a man of incredibly High Integrity. He has tremendous Global Experience as it relates to the legal profession. Hes the person i need on this team. He had a system in place. Unfortunately in this instance it wasnt brought to his attention, frankly by people that brought many other issues forward. Hes a man of High Integrity this wasnt a system in place, your lawyers telling you youre subject to punitive damages didnt get to your desk . How that is not incompetent . How can you have a sister in place that you or at least Lucy Clark Dougherty has a way of telling you, we have our lawyers telling us four different times within a couple of years something you hadnt even talked about recalling punitive dans . How do you have a system in place that doesnt account for that . We had very senior lawyers who had this information and didnt bring it forward who are no longer with this company. Deborah novak van der hoff is still with the company and she had the knowledge. As we went through the details of the lucas report very carefully, and i would say when in doubt we reached further to take action, there are many lawyers that are no longer with the company. I think theres been a blind spot here. I really do. My time is up. I think the failure of this Legal Department is stunning. And the notion i mean, you look around government, when Something Like this happens, you know what . Secretary seki didnt know about those problems with scheduling. Nobody told him. Hes gone. Next, acting Veterans Affairs secretary sloan gibson discusses the actions being taken to fix Va Health Care delays and the backlog of waiting lists. This hearing of the senate Veterans Affairs committee is 2 15. Lets get to work. Good morning and welcome to everyone for what i think will be a very important and productive hearing. We manage mr. Sloan gibson who will be discussing with us what he has been doing in what i perceive to be a very active six weeks since youve held that position. And we also look forward to hearing from him as to what he perceived the problems facing the va in the months and years to come. And i would want to mention to the members of the committee that next week on the 22nd, we will be holding a confirmation hearing for bob mcdonald, the president s nominee for secretary of va. Last week, despite last month, despite a very partisan environment here in congress, 93 senators put their differences aside to vote in favor of the significant piece of legislation which we hope will address many of the immediate problems facing the va, an issue senator mccain and i and all of us in this room worked very hard on, i want to thanker for their support. It is my hope that that legislation and the Conference Committee were having with the house will be completed by the time we leave here for the august break. It is clear to all of us that the va faces many, many challenges and they are well documented. The concerns that i have that of have been well publicized is that we have many, many, many veterans in many parts of this country who are unable to access va care in a timely manner. We have significant problems in terms of accountability. All of us find it totally unacceptable that people have manipulated data in terms of waiting times. People have treated whistle blowers in a contemptuous way. People have lied. And that is unacceptable. And we want to hear from mr. Gibson in terms what was he is doing to address those many problems. But the issue that i want to focus on is that while we are determined to do everything that we can to make the va, which is a huge institution providing 6. 5 million veterans a year with health care, while we want to do everything that we can to make that agency efficient and accountable, there is another issue that we have got to address that is also part of our responsibility, and that is what are the legitimate needs, what are the real needs facing the 22 million veterans in this country and how as a congress are we responding to those needs . So number one, the va has got to be accountable, it has got to be efficient, weve got to address many of the internal problems that we have all heard in the last several months. Secondly, we have also got to ascertain what the problems facing the Veterans Community and their families are and do everything we can to make sure that the va is on the kind of position that it needs to be to address those problems. Let me just mention some of them. Of the 2 million men and women who served our country, put their lives on the line in afghanistan and iraq, studies suggest that 20 to 30 have come home with ptsd or tbi. Simply stated, that means those wars have created some 500,000 mentally wounded american veterans, and as a result very Serious Problems regarding suicide, and this committee will be dealing with that issue in connection with ptsd substance abuse, inability to hold on to a job, divorce, emotional problems for the kids. When youre dealing with ptsd it is not just the veteran. It is the wife, it is the kids. Since fiscal year 2006 the number of veterans receiving specialized Mental Health treatment has risen from just over 927,000 veterans to more than 1. 4 million in fiscal year 2013. This means that in fiscal year 2013, over onequarter of those receiving care at va were being treated for Mental Health conditions. In other words, va currently provides 49,315 outpatient Mental Health aappoippointments day. A day. 49,000 Mental Health outpatient appointments a day. Imagine the scope of that. And imagine the challenge. If we had endless supplies of money, if we had the best, if we had adequate numbers of psychologists and psychiatrists in this country, which we do not have, this would be an insurmountable problem. And yet we are where we are. That is the cost of war. Ensuring timely access to highquality Mental Health care is critical for our veterans and for their loved ones. And the stakes are high. As ive said we are all aware and i know Johnny Isakson among others has taken a hard look at suicide. It is a tragedy beyond words. Not easily dealt with but its one that we have got to address. Like most americans, we are all concerned about these horrendous waiting periods. And i know that mr. Gibson is going to be talking about that in his testimony. 46 let me just go through the numbers to understand the scope of the issue that were dealing with. Over 46,000 veterans are on lists waiting to be scheduled for medical appointments. Over 8,000 of them have waited over 120 days. We can have an argument, though i dont think there is much, about whether 14 days was an appropriate number. I think it was not. I think that was overly ambitious. Good goal but i dont think we have the resources to deal with it. But i dont think theres much argument that when you have over 8,000 veterans waiting over 120 days to receive an appointment, thats 128 128 days. 84 than 600,000 veterans have an appointment that is more than 30 days from the date that the appointment was initially requested, or from the date that was desired. That is not acceptable. Et cetera, et cetera. The numbers are staggering. And that is an issue obviously that we are addressing right now and well hear from mr. Gibson as to how he is going to about forward with that. I think the goal of every member of this committee and i would hope and expect every member of congress and of the American People is that the veterans of this country, people who have suffered so much, serve Quality Health care and they deserve it in a timely manner. And what i look forward to hearing from mr. Gibson is some straight, honest talk about the needs of the va in achieving that goal. If we are talking about a Staggering Number of veterans coming home with ptsd or tbi, how many Mental Health workers do you need and how are you going to get them . We dont have enough doctors in this country. How many primary care physicians do you need, how many specialist dozen you need . If the foal is to provide quality, Timely Health care in a costeffective manner, we need some answers from the va and i hope well given to get some of them today from mr. Gibson. Needless to say the other issues that i know that members of the committee are going to be asking is what actions the department has taken to reprimand employees who have lied or manipulated data. That is something that nobody in this on this committee tolerates. What has the department done to ensure that such manipulation no longer occurs. What has the department done to improve other areas of concern identified by the Inspector General, the gao, and other auditing organizations . So with that, let me give the mike over to the Ranking Member senator burr. Thank you, mr. Chairman. And acting secretary gibson, welcome. Since our last hearing, there have been several developments related to scheduling irregularities across the va and its negative impact on patient care. Vas begun to take the necessary steps to address the systemic problems and the corrosive culture that have been identified and substantiated by several independent sources. However, these changes will not happen overnight and this committee must provide the critical oversight to ensure those changes occur and are effective. Even with the steps va has taken to improve access for many veterans, there will continue to be reports and allegations regarding Va Health Care facilities and workers. These reports will not only highlight critical areas of needed reform, but identify the magnitude and the breadth of the systemic issues facing the va. The ongoing internal evaluation by va as well as investigations currently being conducted by the office of special counsel and the vas office of Inspector General are essential to rebuilding not only Veterans Trust but also the trust of stakeholders and employees. To undertake the needed reforms within va, the role of the office of special counsel and the Inspector General are even more crucial now than ever before. Bo both offices have been essential in identifying systemic issues facing the va. Id like to highlight a few critical reports that have been released since the last meeting. At the time of may 15ths hearing there were several stakeholders who did not want to rush to judgment until the allegations surrounding phoenix had been substantiated. Since that hearing, the ig released an interim report regarding the allegations of scheduling irregularities and a secret wait list at the phoenix Va Health Care system. Not only did the ig substantiate scheduling irregularities and a secret wait list in phoenix but the ig identified roughly 1,700 veterans who were waiting for appointments and were not included on an appropriate electronic waiting list. The ig found that scheduling irregularities are a systemic issue across vas Health Care System and that this was not an isolated event. Additionally, the ig has received numerous allegations regarding mismanagement, inappropriate hiring decisions, sexual harassment, and bullying behavior by mid and senior level managers at this facility. These allegations speak to the corrosive culture that has taken deep root throughout the entire department. Within a threeweek period the office of special counsel released a statement on va whistleblower reprisals and sent a letter to the president regarding vas lack of responsiveness to osc requests. In this letter the office of special counsel described the office of medical inspector inspectors consistent use of harmless errors. This is their defense. Where the department acknowledges the problem but claims patients werent their cases were unaffected. The letter details ten cases of egregious patient care provided by va facilities in which the omi substantiates errors in patient care but dismisses potential patient harm. In one case two veterans were admitted to an inpatient Mental Health ward at the brock ton va facility, didnt receive comprehensive evaluations for more than seven years after being admitted to the facility. Another case in the letter describes how pulmonologists copied previous provider notes in more than 1,200 patient medical records instead of recording current readings for these patients. I want to be Crystal Clear. The culture that has developed at va and the lack of management and accountability is simply irrehensible. And it will no longer be tolerated. Secretary gibson, youve taken several actionable steps in the last month and a half and i commend the work that youve done. However, what has happened over the course of years is a horrendous blemish on the vas reputation. And much more work will be needed to repair that damage. As va continues to move forward in improving veterans access to care and changing the culture that has taken deep root within the department this committee has a lot of work to do. The committee needs to take an active, vigorous oversight role to ensure that the problems that have been identified over the last several months, and i might say over the next several months, as a host of ig reports come out, are effectively and appropriately addressed. And they arent allowed to happen again. Again, secretary gibson, thank you for being here, mr. Chairman, i yield. Thank you, mr. Burr. Senator murray. Thank you so much for holding this hearing. As we know this is a critical time for the department. The va is still struggling with major systemic problems. There are many vacancies in key leadership positions. And most importantly, veterans are still waiting too long for care. Secretary gibson as we talked about yesterday, i really appreciate your stepping up during this crisis. The Department Needs strong leadership right now because the va is facing serious challenges. Rob neighbors review identified several of these issues. A corrosive culture has developed in the department, one that is unworthy of vas many dedicated and talented medical provide who do only want to help veterans. Management failures, lack of communication is a policemen at all levels of the vha. And va needs more providers, more space, and modern i. T. Systems. As we continue to work in the Conference Committee to craft a final bill, i hope an agreement will be reached so we can send it to the president and start making the changes needed at va so veterans get into care, we create transparency, and hold people accountable. The compromise bill will be an important first step. As more reviews are done and more problems found, we will need to take additional steps. While we continue working on these problems we cannot lose sight of many other pressing issues. Too many veterans still die by suicide each day. Sexual assault survivors still need help. Va has to continue to make progress towards the commendable and even more challenging goals of eliminating veterans homelessness and reducing the claims backlog. On a positive note, secretary gibson, i really appreciate your help in finally getting money to build the wall to wall estate veterans home. Weve been working on this for a very long time and now hundreds of veterans in that area will be able to access the longterm care that they need. As i have said repeatedly here in this room, when the nation goes to war, it also commits to taking care of the veterans when they return home. Their needs are a cost of war and we will provide for them no matter what. We know many veterans will need va care for several decades to come. Others will come to the va for the first time many years after their service has ended. So today im hoping to hear about solutions to these systemic problems and smart ways to strengthen the va for the longterm. Because the va does need to be there for our veterans, ready to help right away every time. Thank you, mr. Chairman. And i yield to senator isakson. Thank you, senator murray. Secretary gibson, thank you very much for accept this will interim responsibility. Youre a brave and courageous man. While im encouraged by some of the serious steps youve taken im still not satisfied. We have tremendous problems. As indicated by the letter from special counsel lerner to the president of the United States of which i want to quote one paragraph. I remain concerned. The departments ilingness to acknowledge and address the impact of these problems the whistle blowers problems may have had on the safety and health of veterans. Consistently used the term and i quote harmless error as a defense where the department acknowledges problem claims patients have been unaffected. This approach has prevented va from acknowledging the severity of systemic problems and from taking necessary steps to provide quality care to veterans. The letter goes on to delineate specification cases where Veterans Health suffered because of the Agency Looking the other way. I have become personally convinced that this begins and ends with the failure of Senior Leadership in the va, for years, to overlook or to look over the manipulation of numbers, to make things look better than they really were, to hope that congress wouldnt come and look. I think congress is partially to blame for in the coming and looking enough. I learned when i was raising my children that if parents come and every now and then open the bedroom door and look inside you have a betterbehaved kid than if you never look inside. I think some of the departments in the va are exactly the same thing. The pervasive culture of cooking the books for personal benefit, such as pay raises, is absolutely inexcusable. Lastly, i hope in your remarks which im looking forward to youll address how the memo that was written by mr. Showen hard august the 26th of 2010 that delineated specifically many of the problems we are now discover recognize this was four years ago. How a memo to Senior Leaders across the network ask Senior Management could have gone totally unhooked at by anybody in the va and the problems that were now trying to fix lasted four more years within the va because there was a culture of just looking the other way when there was a criticism or there was accountability in place. So while i appreciate very much your willingness to come forward as a citizen and take on this interim responsibility and i appreciate the steps that youve made i am not satisfied yet the vas culture is any different than it has been and were going to have to see to it the culture at the va changes and we have accountability top to bottom but in particular the Senior Management of Veterans Administration and health vans health care. A vote has been called so a number of senators are going to be leaving. Well go to senator tester, moran. Thank you, senator murray. I want to thank sanders and burr even though theyre not here for their work on this committee. Access to health care for veterans did not pop up overnight. This is a topic that many of us have been working on for years. Solutions must be based on good information. You cant make good decisions without good information. Hopefully conversation today will be straightforward and frank so we can get down to some solutions. Its going to require tough decisions. Its going to require some creativity. It will require focus and engagement from folks on the ground and washington that last well beyond the media span. Veterans deserve better than to have folks jump on the latest crisis or two and then you never hear about it again. They want answers. They want solutions. They want the benefits that theyve earned. Not press releases. Im approached by veterans every time i go home, whether its in the grocery store, at the service station. They are direct, they are straightforwa straightforward, and they give me the best view of whats going on on the ground with the va. In fact, this friday im going to be holding another roundtable, this time in the capital city of helena in montana, to hear about the veterans in the va and the services theyre getting and the difficulties theyre having, along with the successes. Since our last hearing on Va Health Care the va conducted a nationwide audience dealt. It found the biggest obstacle to timely medical care at va is lack of service providers. A lack of service providers. Im looking forward to hear from the va on this audit and followup actions moving forward. Since our last meeting the white house has also complete review on issues impacting access to care. This review echoed what weve already heard, that the va provides highQuality Health care once veterans get in the door. Va Scheduling Technology is outdated, i believe 30 years old. It is secondary to the need for Additional Resources such as doctors, nurses, other Health Care Professionals. Physical space, inappropriately trained administrative support personnel. Since our last hearing the senate also passed a comprehensive bipartisan pill that would address some major issues impacting access to timely medical care at the va. It passed by an overwhelming 93 votes. We seldom get 93 votes for anything in the United States senate. Right now were in the fourth week. There isnt much to show for it. Those questions would be good to get answered today too. Because some members of this body, i think, of the Conference Committee, are balking at the cost. Look, we just shipped 800 folks off to iraq. I didnt hear one person talk about cost. Back in 2003 when we invaded iraq, i was not here, but i certainly never heard anybody talk about the cost. And making sure that there were offsets for that cost. Look, these folks went to war. They performed incredibly well. Some of them came back missing arms, legs. Some of them came back with Mental Health conditions that they didnt have when they left. Health problems they didnt have when they left. It is very frustrating from my perspective when i come from a state where were about 22 docs down to hear folks on the Conference Committee a few weeks aceh what we need to do is schedule more patients for the doctors. That will solve the problem. That will not solve the problem. We need more Health Care Professionals on the ground. Sloan, i hope to hear from you today on those issues about what those editiongycys are because i think its critically important we get our arms around that as a committee so we can move forward, so that we can provide the kind of accountability that needs to happen within the va to make sure ultimately the veterans get the care they deserve. I am very concerned that this Conference Committee will end up taking a step backward for Veterans Health care in this country. That cannot happen. Veterans deserve better. Theyve earned the health care. We need to make sure we step up to the plate, give them the resources they need, and then hold them accountable for the job that they do. Veterans deserve our best. Theyve demonstrated their best in the field. We need to demonstrate our best as policymakers. And you folks as leaders of the va. With that i would yield the floor to my friend senator moran. Thank you very much. Mr. Secretary, thank you for joining us. Thank you very much for having a conversation with me by phone several weeks ago, i appreciate that outreach. Its been one of the experiences that ive had in recent years with the va is just no ability to convey the concerns of kansas veterans. We have the ability to convey that information to the department, but virtually no Response Time and time again. And so i appreciate the fact that you took time to have a telephone conversation with me. Im going to present to you today, or shortly, a letter that i have compiled addressed to you. I heard the testimony from the house Veterans Affairs Committee Last week in which some of the topic was about whistle blowers and the apology that the department made. What i have discovered as a result of whats transpired over the last several months is that many kansans, veterans in particular, also many employees at department of vet raps affairs, are presenting me now with stories of problems went the va. And they are reluctant, in fact, decline to present that information to a whistleblower, as a whistleblower, in a formal way. Because of fear of retribution and concern about their future and their employment. So mr. Secretary, we will be providing you an outline of things that we still consider significant challenges and problems in my home state of kansas. I indicated several months ago that i have been a member of the Veterans Committee since i came to congress, 14 years in the house, four years in the senate. And there have always been challenges at the va. There is always challenges in health care. What seems to me to be different today, mr. Secretary, and its occurred over time, is the recognition that the va in a sense was just shrugging its shoulders. No real attention to problems. And what that resulted in then were veterans telling me that they no longer had faith in the department of Veterans Affairs to provide the services that they are entitled to as military men and women of our country. And so i thought a change in leadership at department of Veterans Affairs was required. Its now taking place. I look forward to meeting mr. Mcdonald this afternoon in my office. But what i know is that the that only changing the secretary, only changing the top leadership, is insufficient to solve the problems that exist. And so i look forward to working with you at your time at the department of vet rans affairs to see that the results are things that we all can be proud of and that the commitments that we have made are kept to our veterans. Most of my conversations with secretary of Veterans Affairs, i think there have been nine of them in my time, have dealt with rural issues. And i want to explore that with you today in your testimony. But im very anxious to hear about the steps that you are taking to change the nature so it doesnt matter whether youre an urban, suburban, rural veteran that the Veterans Affairs department is Something Different than it has been the last several years. Then im happy to get to the specific issues that we face in a rural state like ours. Mr. Secretary, as we know, change is necessarily. I want to do everything i wan to make certain that the department of Veterans Affairs has the tools necessary. Its been my commitment since i came to congress. But i need the commitment from the department of Veterans Affairs that those resources that theyre provided, the tools they are given, are going to be used in a cost effective, compassionate, and caring way and that theres an attitude at the department of Veterans Affairs that there is no higher calling than to take care of the men and women who served our country. Thank you, sir. Thank you, senator moran. Senator mor rono. Thank you, secretary gibson, for being here. Thank you, chairman sanders and Ranking Member burr, for our continuing focus on the issues and challenging facing the va. When the issues referring to wait times first arose over a month ago the situation was described as an emergency. There was a sense of urgency. I want this committee and this congress to continue to be motivated by the sense of urgency and to continue to recognize that this Emergency Needs to be addressed. Because there is every potential for other issues to come to the fore and for congress to be distracted. Important as these other issues may be, we owe it to the veterans to stay the course. And so i share the sentiments of the chairman and many of the members statements this morning that we need to hear from you as to your shortterm solutions and addressing the issues at hand. And over the longterm to address the systemic problems and challenges facing va. I like so many of my colleagues have been visiting with the veterans in my state, frankly long before the particular crisis arose. And of course they have shared with mr. Their concerns about the lack of doctors, the changeover of doctors, and those are some of the practical considerations that theyve raised with me. And so most of us i think all of us have had the opportunity to talk with veterans in our communities one on one. And we have a commitment to make sure that we continue to stay the course. That to me is the most important thing that this committee can do. And i thank the chairman for not allowing us to move on to other matters that may be pressing but what could be more pressing, to make sure that our veterans receive the care that they need and deserve. Thank you action mr. Chairman. Other members will be filtering back. But i would like to hear from the acting secretary now. And customarily we give five minutes but you will have more time. This is a serious discussion and we want you to have the time you need to make your case and we want the members here to have the time they need to ask you the questions. All right, senator burr suggests that maybe we should wait a few minutes to make sure that other members come back here, so lets take a very quick recess here. Lets reconvene. And senator johanson, i think were up to you and your opening statement. Thank you, mr. Chairman sanders, and Ranking Member burr, for convening another very important hearing to address the issues at the va. Its critical that we continue to have these oversight hearings to do everything we can to hold vas feet to the fire and make sure that accountability is there. We know some things now that we did not know at the last hearing. We know for a fact that vas wait list manipulation in and access to care issues is, in fact, systemic. Report after report has confirmed this. In fact, 77 facilities are currently under investigation by the va Inspector General. Its an astounding number. I believe the scheduling problems are the tip of the iceberg. Now we have allegations of whistleblower retaliation and improper payment of claims. The cancer doesnt seem to stop. But it must be stopped. While i appreciate your efforts, secretary gibson, i think you have done some things and they are recognized and acknowledged. But i think wed all acknowledge theres so much more to be done. There has to be accountability for wrongdoing or these issues will continue and the senate will have more hearings, not only next week or the week after, but in five, 10, 20 years from now. Theres a serious lack of leadership from the top. The white house needs to have a more visible role in addressing the crisis. We collectively have the ability to fix this agency. We just have to find a will and the Common Ground to do it. All of us have to be a part of the solution. In may during our last Committee Hearing i encouraged the expanded use of nonva care to get urgent treatment to those veterans that were languishing on both secret and official waiting lists. The bill recently passed by the senate gives greater flexibility and Treatment Options for veterans faced with long wait times or lengthy travel. The choice card injects muchneeded competition, in my opinion, into the process and it demands of the va that they get their act together. And the accountability and transparency pieces of the legislation are not only important, theyre critical. The notion that employment should be tied to performance might seem elementary to most people. But this has not been happening at the va. There have been several instances in which senior va executives who were involved in mismanagement or negligence were not reprimanded, but instead, received bonuses and positive performance reviews. Shameful. And while Senior Executive Service Employees can be disciplined and fired under curt law, its a very long and its a very drawnout process. Again, that doesnt work. Law, its a very long and its a very drawnout process. Again, that doesnt work. Claw, a very drawnout process. Again, that doesnt work. Ulaw, s a very drawnout process. Again, that doesnt work. Rlaw, its a very drawnout process. Again, that doesnt work. Rlaw, its a very drawnout process. Again, that doesnt work. Elaw, its a very drawnout process. Again, that doesnt work. Ntlaw,d its a very drawnout process. Again, the secretary needs the authority this bill provides to cut through bureaucratic red tape. And most importantly, to hold individuals responsible. We have to root out the culture of corruption that is contributing to nearly all of vas most pressing issues. Its a huge challenge but we can and must get the va back on track and focused on their core mission of providing Quality Health care to our veterans. They deserve nothing less. Thank you, mr. Chairman. I yield back. Thank you, senator johanns. Now i want to take this opportunity to welcome mr. Sloan gibson, acting secretary of the va. Thank you very much for joining us. To give us an update on the state of health care at the department of Veterans Affairs. And we look forward to hearing your testimony. Secretary gibson is accompanied by mr. Philip macao ski. The assistant deputy undersecretary for health for administrative operations. And your prepared remarks will be submitted for the record. Secretary gibson, senator tester, youve already made your statement, okay. Secretary gibson, please begin. Things and get straight to business. As has been recounted we have Serious Problems. Here is how i see the issues, first and foremost veterans are waiting to long to care. And second, scheduling acts were widespread. And third an environment exist where many Staff Members are afraid to raise concerns or offer suggestions for fear of retaliation. Forth, a vast number of vocal points for staff a