[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
DOCUMENT PRODUCTION STATUS UPDATE,
PART II
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
APRIL 19, 2016
__________
Serial No. 114-134
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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U.S. GOVERNMENT PUBLISHING OFFICE
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
Andrew Dockham, General Counsel
Jonathan Skladany, Senior Counsel
Tristan Leavitt, Senior Counsel
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on April 19, 2016................................... 1
WITNESSES
The Hon. Howard Shelanski, Administrator, Office of Information
and Regulatory Affairs, Office of Management Budget
Oral Statement............................................... 6
Written Statement............................................ 8
The Hon. Jim R. Esquea, Assistant Secretary for Legislation, U.S.
Department of Health and Human Services
Oral Statement............................................... 11
Written Statement............................................ 13
Mr. Jonathan E. Meyer, Deputy General Counsel, Office of General
Counsel, U.S. Department of Homeland Security
Oral Statement............................................... 15
Written Statement............................................ 17
DOCUMENT PRODUCTION STATUS UPDATE, PART II
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Tuesday, April 19, 2016
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:00 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Mica, Duncan, Jordan,
Walberg, Amash, Gosar, Massie, Meadows, DeSantis, Buck, Walker,
Blum, Hice, Carter, Grothman, Hurd, Palmer, Cummings, Clay,
Connolly, Cartwright, Kelly, Lawrence, Lieu, Watson Coleman,
Plaskett, DeSaulnier, and Welch.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order.
Without objection, the chair is authorized to declare a
recess at any time.
This is an important hearing, and I appreciate the
participation here. It's our second document production status
hearing. Our invitation letters for these hearings went out 4
or 5 weeks in advance, as opposed to the normal 2-week notice.
The extra time will allow for some cooperation and, hopefully,
for some document production.
For our first hearing in January, we invited 10 agencies.
When the hearing occurred, we had resolved our differences with
five agencies. It was highly productive to do so.
For this hearing, we invited eight agencies, but three
remain, three of the most problematic agencies that we have run
into.
Our expectations have not changed. When you get a letter
from the Oversight and Government Reform Committee, it is not
optional. When you get a subpoena from the Oversight and
Government Reform Committee, it is not optional. It is not a
game that we are trying to play where agencies try to hide the
documents as long as possible and run out the clock. It impedes
our ability to do our jobs. And you have a constitutional duty,
role, and responsibility to provide those documents to this
Congress.
We require extensive cooperation. Most of the agencies that
we deal with do it in a fair, honest, and prompt way. For any
given investigation, we often need 10 to 15 witnesses to appear
before us for transcribed interviews. When the committee sends
a document request, we expect an honest effort to collect and
respond to those requests. We expect communication. We expect
to be informed, and we expect those agencies and the people
that represent those agencies to be honest and straight with
us. And we expect you to work with us in good faith, which
basically means when you make a commitment, you do what you say
you are going to do. For me personally, as a principle, it is
one of the most important things you can do. Just do what you
say you are going to do.
Today, we are going to hear from a group of senior agency
officials from three Cabinet departments. The Office of
Management and Budget is here to address its response to a
subpoena for materials from its OIRA component, the Office of
Information and Regulatory Affairs, related to the Waters of
the United States rulemaking. OIRA is an office created by
Congress, and the job is to review draft and proposed
regulations and to ensure continuity across government in that
rulemaking process.
We will also hear from the Department of Health and Human
Services. We want to discuss their refusal to produce documents
related to ObamaCare CO-OPs and exchanges. And the Department
of Homeland Security will discuss our oversight request related
to the Secret Service, the TSA, and the Immigration and Customs
Enforcement, often known as ICE.
Let's talk first about OIRA. They have failed to comply
with the committee's subpoena issued over 9 months ago. This is
a subpoena that was issued on July 14 of 2015. The committee
has been investigating this matter for more than a year. To
date, OIRA has produced about 6,000 pages. Roughly 80 percent
of those pages are meaningless because they are either
duplicates or just copies of the publicly available rule.
Despite what is in his testimony from Mr. Shelanski, let me
repeat, 80 percent of that is meaningless because they are
duplicates or they are publicly available.
By way of comparison, the EPA voluntarily produced more
than 22,000 pages related to the rule in the same amount of
time. Likewise, the State of Michigan voluntarily produced more
than 43,000 pages in response to Flint in just 2 weeks. I am
not saying we are done with them, but you can understand the
volume that we are getting and the swift manner that we are
getting.
Problems go beyond withholding documents. OIRA has
intentionally misled and misdirected our investigators. For
example, for more than a year, OIRA failed to identify four key
officials who reviewed the rule. Let's remember that OIRA has
less than 100 employees. This is not some big, massive
bureaucracy with thousands of people. You can literally walk
around the halls and around the corner and go find the person
that you need.
It was only after we started conducting transcribed
interviews under oath the names surfaced, and we still don't
know if OIRA searched their emails as well. We hope to find out
today.
Administrator Shelanski testified before this committee
that he had no communication with the EPA about this rulemaking
and that OIRA does not engage with agencies before a formal
rule review is commenced, although the committee has uncovered
documents and information proving both of these statements as
untrue and false.
Mr. Shelanski, we expect you to answer under oath today and
clarify this.
Health and Human Services, we invited the Department of
Health and Human Services today because persistent problems at
exchanges and CO-OPs have cost taxpayers billions of dollars
and left many consumers scrambling to find health insurance.
The CO-OP problem is particularly problematic. Twelve of 23 CO-
OPs have failed. Eight of the 11 remaining CO-OPs are predicted
to fail this year. Health and Human Services has not provided
any valid legal reason for withholding the information from
this committee. Rather, they assert that if certain information
was released publicly, it could cause consumers to think twice
before enrolling in CO-OP insurance plans.
We know CO-OPs are failing. Given the well-documented
troubles, the committee has had a strong interest in ensuring
the administration is doing all it can to safeguard the $2.4
billion in taxpayer dollars loaned to these failing CO-OPs.
There's an additional $5 billion in Federal grants on the line
that States received to establish their own exchanges.
Exchanges are plagued by security flaws, call center glitches,
Web site failures, software problems, lower than expected
enrollment numbers, and deficient processes for determining
eligibility.
Our efforts to obtain information on these programs have
been met with unexplained delays and what seems like bad faith.
And in Homeland Security--we have a witness here from the
Department of Homeland Security. They are here to answer for
three separate inquiries. Each of the inquiries involves a
different agency: the Transportation Security Administration,
the TSA; the Immigration and Customs Enforcement, ICE; and the
United States Secret Service. In each of these cases, the
committee requested documents and testimony directly from the
relevant DHS component. The DHS subsequently inserted itself as
the gatekeeper for documents and testimony.
Homeland Security has perfected the art of stonewalling.
Specifically, Homeland Security failed to meet a host of
deadlines in response to committee letters, many which were
bipartisan in their nature, and provided only redacted
materials, despite subpoenas clearly instructing otherwise.
Homeland Security also stalled on making employees available
for transcribed interviews. When the committee was finally able
to interview one of the employees, DHS attorneys refused to let
the employee answer the committee's question of whether the
employee had been discouraged from appearing before the
committee. This is textbook obstruction, and it will not stand.
A successful working relationship between a congressional
committee and an executive branch agency requires effort,
communication, and good faith on both sides. We need
transparency, and we have to have an understanding of what is
happening. And it is our decision, Congress' decision, what we
investigate, not yours. And we will make sure that we go and
follow the truth wherever it may take us, and that requires
documents and the interaction with people.
I yield back and now recognize the ranking member, the
gentleman from Maryland, Mr. Cummings, for 5 minutes.
Mr. Cummings. Thank you very much, Mr. Chairman, and I
appreciate you holding this hearing.
As I pointed out at a previous hearing on document
productions, I strongly support the authority of our committee
to obtain documents we need as part of our investigations. It
is impossible for us to do our job without documents.
The executive branch agencies and outside entities have a
duty to comply with our request, regardless of which party is
in the majority. Documents are one essential tool we use to
investigate waste, fraud, and abuse and to ensure that our
government runs as effectively and efficiently as possible.
Just this past December, our committee adopted by unanimous
vote a bipartisan report on the U.S. Secret Service and made
key recommendations for improving the effectiveness and
efficiency of that agency. That report would not have been
possible without thousands of pages of documents we obtained as
a part of our oversight efforts.
Our ongoing investigation into the water crisis in Flint,
Michigan, is another example. Documents obtained by this
committee reveal how the actions of Governor Snyder and his
administration caused this disaster. That investigation is
ongoing, and we received another production of documents on
Friday.
So I wholeheartedly agree that documents are a critical
tool for us to conduct our oversight duties and
responsibilities, but we also have an obligation to use that
power responsibly and avoid massive and overbroad requests that
create the very waste and inefficiency we are trying to
eliminate. Our document requests should focus on investigating
actual waste or wrongdoing, rather than fishing for nonexistent
problems or using the power of the committee for partisan
attacks. We need to recognize how much work goes into
responding to our requests and how many taxpayer dollars are
spent.
We have an obligation to craft our requests narrowly, to
seek only those documents we need to do our jobs. For example,
in the case of IRS, we have now received more than 1.3 million
pages of documents at a cost of tens of millions of taxpayer
dollars, including a request for the emails of Lois Lerner, the
ones she wrote going back to 1986. The acting Republican
inspector general at the IRS has identified no evidence of
political targeting, nor has the Department of Justice, nor has
this committee. Still this investigation continues with no end
in sight.
This is an example of what I believe is an abuse of the
committee's authority. Forcing agencies to divert personnel and
spend critical taxpayer dollars on baseless and overbroad
document requests is counterproductive to good government
because it causes the very waste and inefficiency our committee
is charged with eliminating. Ironically, the cost to taxpayers
by agencies to fulfill requests like these sometimes exceeds
any possibility for cost savings.
Finally, let me make one last point. The invitation letters
for today's hearing suggests the agencies testifying before us,
quote, ``routinely fail to cooperate and have produced nothing
of value in response to our request.'' That's simply not the
case. For example, HHS has made seven formal and informal
productions, totaling more than 30,000 pages, in response to
the committee's request for information about Consumer Operated
and Oriented Plans under the Affordable Care Act. Now, I
understand that the Republicans hate the Affordable Care Act
and will continue to attack it, but HHS has been extremely
responsive.
I also understand that the House Republicans are engaged in
an orchestrated attack on the administration's new Clean Water
rule, known as Waters of the United States, or WOTUS. They
oppose the expanded protection of our Nation's waterways. So
they've been investigating this new rule by sending massive
document requests to EPA, the Army, and the Office of
Information and Regulatory Affairs, which is here today.
But these agencies are also cooperating. EPA made 15
productions over the past year, totaling 24,670 pages of
documents. The Army made 7 productions, totaling 13,087 pages.
And OMB has made 8 productions on behalf of OIRA, totaling more
than 6,000 pages.
As I noted earlier, DHS has been producing tens of
thousands of pages of documents from its component agencies.
These include the Secret Service, the U.S. Citizenship and
Immigration Services, Transportation Security Administration,
and the Immigration and Customs Enforcement, in response to
dozens of requests from our committee. These agencies are not
refusing to cooperate with the committee. They are trying to do
their jobs, trying to act professionally, trying to protect the
legitimate interests of the executive branch and trying to
provide this committee with the information we need to fulfill
our oversight responsibilities under the Constitution of the
United States of America.
So I thank our witnesses for being here today, and I hope
we can explore these issues in an earnest way so that this can
be a win-win situation where we're able to do our job for the
American people and do it effectively and efficiently.
With that, I yield back.
Chairman Chaffetz. I thank the gentleman.
I will hold the record open for 5 legislative days for any
member who would like to submit a written statement.
I will now recognize our witnesses, starting with Howard
Shelanski, the Administrator of the Office of Information and
Regulatory Affairs at the Office of Management and Budget.
We also have the Honorable Jim--help me pronounce your last
name.
Mr. Esquea. Esquea.
Chairman Chaffetz. --Esquea, Assistant Secretary for
Legislation at the United States Department of Health and Human
Services, and Mr. Jonathan Meyer, Deputy General Counsel at the
Office of General Counsel at the United States Department of
Homeland Security.
We thank you all for being here. Pursuant to committee
rules, all witnesses are to be sworn before they testify. If
you will please rise and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Thank you. You may be seated.
Let the record reflect that all of the witnesses answered
in the affirmative.
We are now going to recognize each of you for your oral
statement, which we would appreciate if you would limit to 5
minutes, so we maximize the time for questions. Your entire
written statement will be made part of the record.
Mr. Shelanski, you are now recognized for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF THE HONORABLE HOWARD SHELANSKI
Mr. Shelanski. Thank you, Mr. Chairman.
Chairman Chaffetz, Ranking Member Cummings, and members of
the committee, I appreciate the opportunity to appear before
you today. The Office of Information and Regulatory Affairs,
OIRA, is a statutory part of the Office of Management and
Budget within the Executive Office of the President. The office
serves as the U.S. Government's central authority for the
review of executive branch regulations. As Administrator of
OIRA, I believe strongly in the importance of congressional
oversight and the value that Congress provides ensuring that
OIRA, OMB, and the administration are working in the most
effective and efficient way on behalf of the public. I am
committed to working with Congress and this committee and to
provide the information this committee needs to conduct its
lawful oversight functions.
OIRA works with OMB's Office of Legislative Affairs, Office
of the General Counsel, and other offices within OMB to respond
to congressional requests for information, briefings, and
documents, relating to issues under OIRA's purview. OMB as an
organization strives to provide transparent responses to those
congressional inquiries in a timely manner. OIRA has a broad
portfolio that ranges from coordination of governmentwide
information with statistical policy to review of executive
branch regulations to international regulatory cooperation.
Pursuant to Executive Order 12866 and Executive Order
13563, OIRA is responsible for review of significant Federal
actions issued by executive departments and agencies. OIRA
works under long-established principles that have been
implemented across several administrations of both parties.
OIRA is a relatively small office of approximately 50
employees. The sheer volume of work the dedicated OIRA staff
does related to rulemakings, information collections, and other
matters is impressive. In 2015 alone, OIRA reviewed over 400
rulemakings, over 2,800 information collections, and held
hundreds of meetings at the request of stakeholders of all
kinds, including numerous meetings by phone and in person with
Members of Congress and their staff at their request. We are
committed to maintaining the integrity of regulatory review and
ensuring the process is accessible and responsive.
The committee has asked me to testify today about its
request for information related to OIRA's review of the Clean
Water rule defining Waters of the United States that the
Environmental Protection Agency and the Department of Army
finalized last year.
Since this committee's initial request and subsequent
subpoena, OIRA has worked with others within OMB in a good-
faith effort to respond to the committee's request related to
this rule. To that end, we, to date, have provided eight sets
of responsive documents to the committee. These productions
have so far provided the committee with over 6,400 pages of
documents, the vast majority of which consist of nonpublic
information. We have made these productions to the committee
without any substantive redactions. Our most recent production
to the committee, on April 7, 2016, less than 2 weeks ago, was
our largest to date. Additionally, we have continued to provide
regular productions to the committee as we continue working
through our review to identify responsive information.
We have also voluntarily agreed to a number of transcribed
interviews of OIRA officials. To date, the committee has
interviewed two senior OIRA officials involved with review of
the rule. I have also agreed to participate in a transcribed
interview, which I understand has now been scheduled.
This is also my second time testifying before this
committee on its interest in OIRA's review of the Clean Water
rule within a little over a month. OMB's Associate Director for
Legislative Affairs also testified before this committee in
January of this year on the same topic.
In short, OMB is working diligently to satisfy the
committee's request and to answer your questions concerning
OIRA's review of the Clean Water rule. We remain committed to
Congress' oversight process and look forward to continuing to
work cooperatively with the committee. Thank you again for your
time and attention. I would be pleased to answer any questions
you may have.
[Prepared statement of Mr. Shelanski follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Mr. Esquea, you're now recognized for 5 minutes.
STATEMENT OF THE HONORABLE JIM R. ESQUEA
Mr. Esquea. Mr. Chairman, Ranking Member Cummings, and
members of the committee, I appreciate this opportunity to
testify on the Department of Health and Human Services'
response to congressional oversight and request for documents.
My name is Jim Esquea. I am the Assistant Secretary for
Legislation at HHS. Prior to coming to HHS, I was on the staff
of the Senate Committee on the Budget for 11 years for Senator
Kent Conrad of North Dakota. I have a deep appreciation for the
important work of Congress and strive to facilitate positive
and productive interactions between Congress and HHS every day.
HHS' mission is to enhance and protect the health and well-
being of all Americans. We accomplish this mission every day by
providing effective health and human services and fostering
advances in medicine, public health, and social services. Our
11 operating divisions include large and diverse agencies, such
as the Centers for Disease Control and Prevention, the Centers
for Medicare and Medicaid Services, the Food and Drug
Administration, and the National Institutes of Health. From
providing healthcare coverage to more than 100 million people
through Medicare, Medicaid, and the Children's Health Insurance
Program, and the Health Insurance Marketplace, to conducting
cutting-edge biomedical research, and working to assure the
safety, effectiveness, and quality of foods, drugs, vaccines,
and medical devices, HHS programs touch the lives of all
Americans.
As part of its critical mission to enhance and protect the
health and well-being of all Americans, HHS also regularly
interacts and communicates with Congress. Secretary Burwell has
made working cooperatively with Congress one of her key
priorities, and we view Congress as a valuable partner as we
work together on legislation, appropriations, and oversight.
HHS recognizes and values Congress' important oversight role
and has a long history of cooperating with oversight requests
for information regarding its programs. As the Assistant
Secretary for Legislation, my office works with many different
committees and members on a daily basis to provide Congress
with accurate, complete, and timely information. Given my
previous experience working for the Senate, I certainly
understand and respect the importance of Congress' oversight
function. Given the breadth of the programs administered by the
Department, we receive inquiries from virtually every Member's
office and regularly receive a variety of requests from at
least 20 committees on both the House and Senate side. Since
the 114th Congress began in January of 2015, the HHS has
responded to over 5,200 congressional letters, testified at
almost 150 hearings, and provided at least 1,600 briefings to
the Hill. In addition, we have responded to numerous requests
for documents to multiple committees and have provided tens of
thousands of pages of documents. Agency staff also routinely
responds to numerous informal inquiries from Congress for
requests for information or for help with constituent work.
In responding to this incredible volume of requests, we
work to accommodate Congress' legitimate oversight inquiries,
consistent with important executive branch interests, while
being cognizant of resource constraints. We work
collaboratively with congressional staff to understand
priorities and to develop mutually agreeable solutions. Often,
we receive very broad and complex requests that may involve
many different components of the Department. Such requests
require more time and attention to ensure that we are providing
accurate and complete information.
There have also been some instances where committees have
requested extremely sensitive information, involving
cybersecurity, market sensitivity, ongoing law enforcement
investigations, personally identifiable information, and
internal deliberations. In such situations, we have sought
solutions to balance the committee's interests and our
obligations to safeguard certain information. We have provided
substantive narrative responses, briefings by agency experts,
and in-camera reviews. In all cases, we work hard to respond to
Congress' request for information about our programs. We look
forward to continuing to work with this committee and others to
respond to requests for information in a timely manner
consistent with our obligations to safeguard important
information.
Thank you for the opportunity to be here today. I am more
than happy to answer your questions. And, Mr. Chairman, as you
said in a previous hearing and as you reminded us today, the
most important thing we can do is keep an open line of
communication. I think we have done that, and we have been
aggressive about doing that, but we hear you loud and clear,
sir.
[Prepared statement of Mr. Esquea follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Mr. Meyer, you are now recognized for 5 minutes.
STATEMENT OF THE HONORABLE JONATHAN E. MEYER
Mr. Meyer. Thank you. Good morning. Mr. Chairman, Ranking
Member Cummings, distinguished members of the committee, I'm
honored to appear before you today representing the Department
of Homeland Security to discuss the considerable efforts DHS
devotes to complying with oversight requests by this committee
and by the United States Congress generally.
My name is Jonathan Meyer, and I serve as Deputy General
Counsel at DHS. I have devoted the bulk of my career to public
service and have had the honor to work in both Chambers of
Congress for Members on both sides of the aisle as well as in
positions in the executive branch as both a career and a
political appointee. I consider it a high privilege to have
done so, and the varied experience I have accumulated informs
my daily work on behalf of the American people. As Deputy
General Counsel, I oversee DHS attorneys who are responsible
for litigation, regulations, and legislation that is handled by
the Office of the General Counsel, and I supervise attorneys
providing advice to the many components, offices, and
directorates at DHS. More relevant to today's hearing, I also
supervise our small congressional oversight team, which works
closely with our Office of Legislative Affairs and components
of the Department to assist and advise them on responding to
congressional oversight requests from the 92 committees and
subcommittees with jurisdiction over the Department.
As Assistant Secretary for Legislative Affairs, Tia Johnson
said during her testimony in January, Secretary Johnson has
pledged transparency and candor with Congress and has committed
to respond to congressional inquiries in a timely fashion.
Under his leadership, the Department's responsiveness to
oversight requests has improved by over 60 percent. We have cut
our average response time from 42 business days to less than
17.
We have accomplished this in spite of a significant
increase in oversight requests. During calendar year 2015, DHS
received approximately 700 oversight letters and countless more
oversight requests. Of those, 70 letters came from members of
this committee. At the current rate, that number will double
this year. Similarly, the hearing schedule has accelerated. DHS
is on pace to provide half, again, as many hearing witnesses to
this committee this year as last. Recognizing Congress'
legitimate oversight responsibility, we are making even greater
efforts to accommodate the committee's increased demands.
In inviting DHS to testify today, the committee referenced
the Department's responses to oversight requests and demands
regarding the Transportation Security Administration, the U.S.
Secret Service, and two immigration-related matters.
In the past 6 months, TSA has received 8 letters with over
30 requests for information. In response, TSA has made
available approximately 21,000 pages of documents. TSA staff
have conducted a briefing, and five TSA personnel have
participated in transcribed interviews. Another briefing is
scheduled for this Thursday.
Since this committee began its oversight investigation of
the Secret Service, it has issued 13 letters, 1 subpoena, and
countless informal requests. In response, the Secret Service
has provided 15 briefings, hearing testimony from 2 witnesses,
and transcribed interviews by 8 employees who have voluntarily
left their duties for the day to accommodate the committee's
request. At the chairman's request, the Secret Service also
facilitated a visit to its headquarters for members of this
committee. In total, the Secret Service has made available over
13,000 pages of documents in response to the committee's
request in this area in addition to classified documents in the
appropriate setting, all at a time when, as the chairman and
ranking member have noted, the Secret Service is historically
underresourced.
These efforts have supplemented the Secret Service's hard
work to respond to inquiries about the operations of the Secret
Service from the independent Protective Mission Panel, 7
investigations by the office of the inspector general, and the
oversight inquiries of 10 other congressional committees and
subcommittees.
With regard to the immigration-related matters, the
Department has produced over 2,000 pages of documents, provided
a classified and unclassified briefing and a day-long
transcribed interview of ICE's special agent in charge of its
El Paso office, who flew in from Texas to accommodate the
committee. We continue to work to accommodate your requests for
documents and additional transcribed interviews.
Mr. Chairman, Secretary Johnson has made responsiveness to
Congress a priority, and DHS has shown results, but we are not
resting on those results. We are determined to work with the
committee to continue to improve our record. I'll be happy to
answer any questions the committee may have.
[Prepared statement of Mr. Meyer follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
I will now recognize myself for 5 minutes.
Mr. Shelanski, I want to start with you. On March 3, 2015,
our colleague here, Mr. Meadows of North Carolina, asked you
some questions regarding the Waters of the United States and
made a request for documents. Correct?
Mr. Shelanski. I believe that is correct, yes.
Chairman Chaffetz. May 12, 2015, the committee issued you a
letter requesting information regarding the Waters of the
United States. Correct?
Mr. Shelanski. I believe that is correct, yes.
Chairman Chaffetz. On July 14, 2015, I issued a subpoena
from this committee to you and the Office of Information and
Regulatory Affairs. Correct?
Mr. Shelanski. Yes, sir.
Chairman Chaffetz. You received that subpoena. Correct?
Mr. Shelanski. Yes, sir.
Chairman Chaffetz. Did you understand the subpoena?
Mr. Shelanski. Yes, sir.
Chairman Chaffetz. Was there any ambiguity about the
subpoena?
Mr. Shelanski. It was a very broad subpoena, but I
understood the subpoena.
Chairman Chaffetz. The subpoena right here, one sentence
essentially in terms of the schedule: all documents and
communications referring or relating to the Environmental
Protection Agency and the U.S. Department of Army rule defining
the scope of the waters protected under the Clean Water Act.
Is there anything that you didn't understand about that?
Mr. Shelanski. No, sir.
Chairman Chaffetz. What percentage of the documents in your
agency have been provided to this committee?
Mr. Shelanski. I don't know what the exact percentage is,
in part because the subpoena goes back 9 years to June of 2006,
and so I don't know what the full volume of documents
ultimately would be. I do know that we have turned over a large
number of documents, documents that we have prioritized the
review of pursuant to counsel from your staff.
Chairman Chaffetz. Why should we settle for anything less
than 100 percent?
Mr. Shelanski. We agree that you should receive the
information that you need for your oversight review, and that
is why we have continued to review and work through our
documents as quickly as we can in response to your request.
Chairman Chaffetz. Do you believe we should get 100 percent
of the documents?
Mr. Shelanski. I believe you should get all of the
documents that are responsive to your request.
Chairman Chaffetz. Do you believe we should get 100 percent
of the documents?
Mr. Shelanski. Without knowing what the documents are sir,
without knowing what we are looking for, a lot of documents we
have reviewed are nonresponsive. A lot of them contain other
kinds of information. I believe you should get all the
information you need for your oversight, and that is why we
continue to work with your staff and to follow their counsel
until you're satisfied.
Chairman Chaffetz. You are under obligation to the
subpoena. Correct?
Mr. Shelanski. Yes.
Chairman Chaffetz. Why have you not given us 100 percent of
the documents?
Mr. Shelanski. We have been very responsive.
Chairman Chaffetz. No, no. That's not the question.
Responsiveness, from my viewpoint, on a subpoena that was
issued in July of 2015 would be give us 100 percent of the
documents. Let me ask you another way. What do you think the
United States Congress should not see?
Mr. Shelanski. To date, we have turned over our documents
without redaction, and we have not withheld any documents that
we have reviewed.
Chairman Chaffetz. So have you given us 100 percent of the
documents?
Mr. Shelanski. Of the documents that we have reviewed that
are responsive to your subpoena, we have produced those to the
committee.
Chairman Chaffetz. Have you given us 100 percent of the
documents?
Mr. Shelanski. Our review is ongoing, sir.
Chairman Chaffetz. Why?
Mr. Shelanski. Because it takes time to review the
documents. The subpoena is----
Chairman Chaffetz. How much time does it take?
Mr. Shelanski. All of the documents need to be read. We
need to make sure that they're responsive.
Chairman Chaffetz. But what are you redacting? Name a
single thing that the United States Congress should not see in
those documents.
Mr. Shelanski. At this point, our documents, sir, that we
have turned over have been unredacted.
Chairman Chaffetz. It's the ones you haven't been turned
over that I'm most worried about. What are you hiding? What are
you hiding? Why does it take two hearings, a subpoena, letters,
requests, and you still are nonresponsive?
Mr. Shelanski. We are not nonresponsive, sir. We have
turned over--since the last hearing--we have turned over
roughly 1,500 additional----
Chairman Chaffetz. I want know what percentage. I want to
know what percentage.
Mr. Shelanski. Because the review is ongoing, because we
have prioritized the review of documents that your staff has
advised us to prioritize. This is a 9-year subpoena.
Chairman Chaffetz. No, no, no, no. Let me make this real
clear. I want 100 percent of the documents. That's what's in
the subpoena. What documents in your possession did you not
give us?
Mr. Shelanski. We have not finished reviewing all of the 9
years covered by the subpoena, sir, so there are going to be
documents that continue to be produced to the committee as we
complete that review.
Chairman Chaffetz. How many people are reviewing these
materials?
Mr. Shelanski. I think roughly half a dozen people are
involved with the review.
Chairman Chaffetz. Who are those people? Name them.
Mr. Shelanski. They would include our Office of General
Counsel.
Chairman Chaffetz. No. I want their names.
Mr. Shelanski. I believe that they include Ilona Cohen, our
general counsel; Charles Luftig, our deputy general counsel. I
am not sure of the names of all of their staff that are working
with them on this, so it would include our Office of
Legislative Affairs.
Chairman Chaffetz. Have you provided documents to others in
the government that you have not provided to Congress?
Mr. Shelanski. My understanding is we are working with your
committee and making the productions to you here in Congress.
Chairman Chaffetz. Have you provided 100 percent of what's
in your possession to the United States Congress?
Mr. Shelanski. As we review, we have withheld nothing----
Chairman Chaffetz. Mr. Shelanski, I'm on the verge of
recommending and pushing forward a contempt citation on you
personally, and so I want to know. I'm trying to give you every
opportunity. It's the second hearing. Why should we not hold
you in contempt of Congress?
Mr. Shelanski. You should not hold me in contempt of
Congress because we have been responsive to this. We were on
our third production of documents prior to receiving your
subpoena.
Chairman Chaffetz. That was in July of 2015.
Mr. Shelanski. Right. And we have already acknowledged
that, after receiving the subpoena, we were slow, but then we
had two document productions in December. And most of the
production of documents that we have provided to you, sir, are
nonpublic documents that consist of the communications that
your staff asked us to prioritize, communications between the
OIRA officials reviewing the rule and agency staff during the
proposed rule phase, and we have moved forward with that. To
date----
Chairman Chaffetz. I have got to wrap up here. Who is Vlad
Dorjets? Who is he?
Mr. Shelanski. Vlad Dorjets is a desk officer within OIRA
who worked on the final----
Chairman Chaffetz. If we call him in for a transcribed
interview, will you make him available?
Mr. Shelanski. I understand that that discussion is ongoing
between my staff and yours.
Chairman Chaffetz. You're the Administrator. You're the
head of the office. Are you or are you not--because I'll issue
a subpoena. So tell me right now, what are we going to do?
Mr. Shelanski. We will make available to you and the
committee, Mr. Chairman, all of the witnesses that you need for
your oversight purposes.
Chairman Chaffetz. Cortney Higgins.
Mr. Shelanski. Ms. Higgins is also a desk officer.
Chairman Chaffetz. Stuart Levenbach.
Mr. Shelanski. He is also a desk officer.
Chairman Chaffetz. Amanda Thomas.
Mr. Shelanski. She's an analyst in our office.
Chairman Chaffetz. How many people in your office?
Mr. Shelanski. We have about just under 50.
Chairman Chaffetz. And how many people have been touching
these documents?
Mr. Shelanski. Within my office, within OIRA itself?
Chairman Chaffetz. Yes.
Mr. Shelanski. Within OIRA itself, everybody who was
involved with the rule would be contributing to the effort.
Chairman Chaffetz. I'm just asking how many people is that?
Mr. Shelanski. I don't really know. I would guess five or
six.
Chairman Chaffetz. See this is--you're in the second
hearing within a month. You're going to be setting records
here, Mr. Shelanski. Our request was pretty simple, and it was
a long time ago. You're leaving us with no other choices
because when we issue a subpoena, it's not a suggestion. It's
not a, ``Hey, let's start the review process.'' It's a demand.
It's a compulsion to provide the documents that are in your
possession, and you failed to do that. You've failed to
recognize how important it is, and you are failing to live up
to the obligations, your fiduciary responsibility to comply
with that subpoena. My time is well expired. I'll now go to Mr.
Connolly of Virginia and recognize him for 5 minutes.
Mr. Connolly. Thank you, Mr. Chairman.
Mr. Shelanski, welcome back. When did you receive a
subpoena from this committee?
Mr. Shelanski. In July of 2015.
Mr. Connolly. So last July?
Mr. Shelanski. That's correct, sir.
Mr. Connolly. And what was the subpoena for?
Mr. Shelanski. The subpoena was for all documents related
to our review of the Clean Water rule.
Mr. Connolly. Any ballpark guess when you got that as to
the volume, the number of pages of documents that would entail?
Mr. Shelanski. It was hard to guess because we were
instructed to go back to June 19, 2006, and we really didn't
have any idea what might be----
Mr. Connolly. So the subpoena covered a period of time that
is now 10 years ago.
Mr. Shelanski. That is correct, sir.
Mr. Connolly. That could be a lot of documents presumably?
Mr. Shelanski. Yes.
Mr. Connolly. These are documents that would involve
multiple agencies, including, of course, the EPA?
Mr. Shelanski. Yes, sir.
Mr. Connolly. Was there a point in time at which you could
circumscribe the universe of potential number of documents
involved?
Mr. Shelanski. What we have tried to do is follow the
counsel we received from committee staff as to where to begin
our review of documents for production. We were originally
asked to focus on the proposed rule, and we, therefore, turned
over documents--prior to the subpoena--two production's worth,
including communications between me and the Administrator of
the EPA during the review of the proposed rule.
Mr. Connolly. Yes. Because the chairman's questioning
allows an impression that you are willfully ignoring a subpoena
from the Congress, and I don't think any of us on either side
of this committee would ever support a willful ignoring of a
legitimate subpoena from the committee, which is charged with
oversight of the Federal Government.
So let me ask you, when you get a subpoena, when you got
that subpoena, so what happened?
Mr. Shelanski. So the first thing that happened is,
obviously, I was concerned that our production prior to the
subpoena had not been sufficient to satisfy Mr. Meadows' and
the chairman's request.
Mr. Connolly. Just to be clear, you're referring to
previous requests for information not involving a subpoena?
Mr. Shelanski. That is correct. And we had made two
productions and were preparing our third at that time.
Mr. Connolly. And what was the volume of those first two
productions?
Mr. Shelanski. I believe the first production was several
hundred pages, and that consisted mostly of things that, while
they were covered by the request, were publicly obtainable.
Mr. Connolly. Did somebody in the agency, including perhaps
yourself, look at the response to determine, ``This is being
responsive,'' or, ``It's inadequate,'' or, ``We need to do
more?''
Mr. Shelanski. Yes.
Mr. Connolly. And were there communications between
committee staff and your office during that process?
Mr. Shelanski. I do know that there was an effort during
that time to find out from committee staff what they wanted us
to prioritize, what they were most interested in.
Mr. Connolly. Presumably, as part of the process, I mean,
it's not a simple matter of, ``We have got a request or
subpoena; let's fill up a pickup truck of anything that says
'Waters of the U.S.' and throw it in the back of that truck and
send it on up to Congress.'' Is that correct? There's some
vetting process, some review process?
Mr. Shelanski. That is correct. The search terms that we
used in consultation with the committee staff were very broad
because we wanted to try to capture everything that we could.
We then went through to review the documents, and I made it
clear to my staff throughout OIRA, actually prior to the
subpoena and then again, that anybody who had any interaction
with the rule was--and, in fact, everybody was to search their
documents and to make them available.
Mr. Connolly. Was it your view that the committee reverted
to a subpoena because the committee felt your response to the
previous request was inadequate?
Mr. Shelanski. I was disappointed to receive the subpoena
because I felt like we were working very hard to try to comply.
In fact, just before receiving the subpoena, we had produced
correspondence between me and the EPA leadership. We had
notified the committee that we were producing several hundred
additional pages within a week or two, which indeed we did a
week after we received the subpoena. A lot of that material was
deliberative process, confidential material, and we noted that
in the letters.
And we then proceeded to work very hard once we received
the subpoena--and we have acknowledged we were a little bit
slow out of the box for a variety of reasons--but then have
come forward with five additional productions since then.
Mr. Connolly. Is it my understanding that those productions
have produced over 6,400 pages of documents?
Mr. Shelanski. They have, over 6,400 pages of documents and
of the documents that we understood were most relevant, and
while we're not ending there, we wanted to start with what the
committee thought was most relevant.
Mr. Connolly. So the chairman has indicated not adequate;
you must be hiding something. What would be the total amount of
documents that we haven't gotten that we should get?
Mr. Shelanski. Because we're continuing to review the
documents that we searched, I don't know what the total number
is. Many of the documents that we get at any moment are
nonresponsive because the search terms are very broad. I would
note that we have not withheld one document, and we have not
redacted any of the documents that we have sent for anything
except, for example, a personal phone number or something that
is of a personal nature.
Mr. Connolly. I want to be very clear. That is your sworn
testimony today?
Mr. Shelanski. My sworn testimony is that in our
productions to date, we have withheld nothing. There is no
document the committee has asked for that we have not turned
over.
Mr. Connolly. So, in response to the chairman's question,
what are you hiding----
Mr. Shelanski. We are hiding absolutely nothing, but we are
continuing to review. We are not hiding, but we are not
finished.
Mr. Connolly. But review in and of itself is not an
unreasonable thing for anybody to engage in in response to any
such request?
Mr. Shelanski. It is the standard practice, as I have been
led to understand.
Mr. Connolly. I would just note, you know, I was in local
government for 14 years, and I was subject to a very strict
FOIA set of requirements in the Commonwealth of Virginia, very
strict. My phone records were subject to FOIA. My schedule was
subject to FOIA. Any and all correspondence was subject to
FOIA. And I certainly reserved the right, with the advice of
counsel, to redact personal information when I responded to a
FOIA and review the request. We also reserved the right,
especially with respect to requests from media, to try to work
with the media to hone the request, so we were responsive, but
it wasn't just a fishing expedition.
I certainly support the chairman and the full committee in
any and all document requests that we may need to do our work,
and we always want to hold executive branch agencies
accountable and insist that they be responsive, and there's
always a built-in tension, irrespective of who's in the White
House and who's here.
But we also want to make sure that we're being reasonable
in as we review how responsive you are, and I think the process
sometimes could be a little more complicated than we sometimes
let on.
Thank you for your testimony today.
Thank you, Mr. Chairman. I yield back.
Chairman Chaffetz. Thank the gentleman.
I now recognize the gentleman from Ohio, Mr. Jordan, for 5
minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Esquea, under ObamaCare, how many CO-OPs were
recognized by CMS and DHS?
Mr. Esquea. It would be 23 CO-OPs actually went public.
Mr. Jordan. And how much money did those 23 CO-OPs receive
from taxpayers?
Mr. Esquea. I believe it was $2.4 billion.
Mr. Jordan. How many of those 23 CO-OPs are still in
operation?
Mr. Esquea. I believe there--11, I believe.
Mr. Jordan. Which said another way, 12 of them have already
failed, right, within the first year. Correct?
Mr. Esquea. Yes.
Mr. Jordan. And how many of the remaining 11 are under some
kind of corrective action plan?
Mr. Esquea. I believe, eight.
Mr. Jordan. Eight of the 11. And of the 12 that failed,
most of those were under a corrective action plan before they
failed. Correct?
Mr. Esquea. I believe so.
Mr. Jordan. And of the ones that are left, the 11 that are
operating, 8 of which are under corrective action plans, how
many of those do you think are going to fail?
Mr. Esquea. I don't actually run the CO-OP program, so I
have no firsthand knowledge.
Mr. Jordan. But I'm asking your opinion, as the guy who is
Assistant Secretary of DHS, what you think is going to happen,
based on experience? I got my theories, but I'm wondering what
you think.
Mr. Esquea. I am hopeful that they will continue to be an
important option in terms of providing affordable and
accessible coverage for consumers.
Mr. Jordan. ``Hopeful'' is probably an understatement,
wouldn't you say, Mr. Esquea, based on the history?
Mr. Esquea. I think the CO-OP was an important option in
the Affordable Care Act. Its purpose was to inject competition
and provide another avenue for----
Mr. Jordan. So if you're hopeful, are you seeing something
that we're not seeing because we have asked you for--and back
to the focus of this hearing and what the chairman talked about
in his questioning--we have asked you for a number of pieces of
information that you haven't given us? So maybe you've seen
something that we haven't that makes you hopeful, because we're
not hopeful, but we would at least like to see the information
that you have so we can make a better determination on if, in
fact, the 11 that are remaining, 8 under corrective action
plans, are actually going to be in existence much longer.
Mr. Esquea. Congressman, I appreciate the question, and I
will say this: Since the first letter we got from the chairman
back in November related to CO-OPs, we have worked very hard to
provide significant, relevant, responsive documents. To that
end, we have provided over 31,000 pages----
Mr. Jordan. I don't want to hear the numbers. And I
appreciate that, and I apologize for cutting you off, but we'll
get thousands of this and thousands of that.
Mr. Esquea. Well, but it is important to single out--and I
will put that aside--but it is important to note that we did
provide two in-camera reviews of these market-sensitive
documents unredacted. We made them available to the committee.
Mr. Jordan. Let me just, two letters, one in November and
one in December, asking for specific pieces of information; a
subpoena asking for specific information; one hearing already
where we asked for information and still have yet to received
it; and as you point out, two in-camera reviews, which I find
strange. Why can't we just get the information? Why do we have
to have an in-camera review? So let me ask you this. Eight of
the plans that are still functioning are on corrective action
plans. We have asked for the materials related to what exactly
is involved in the corrective action plan. You've not given us
that. And maybe even more importantly, we have asked which of
these remaining 11 have had site visits? Can you tell me the
answer to that? How many have had a site visit?
Mr. Esquea. I believe we're working on that request for
you. I think at the CO-OP hearing you held in February, which,
in fact, was a very helpful hearing----
Mr. Jordan. This, I guess, kind of cuts to the heart of it.
There are only 11 of these things still operating, and you
can't even tell me which of those 11 you went out to visit.
That's a simple question, and that's one of the things we asked
for in the two letters, one of the things we have asked for in
the subpoena. Why can't you just tell us, ``We visited these 7
of the 11, and here are the ones that we visited?'' Why can't
you tell me that?
Mr. Esquea. We are working hard to make sure we get that
information for you from CMS.
Mr. Jordan. It takes that long to find out if you've
visited any of 11 sites?
Mr. Esquea. We are working very hard to make sure that you
get that piece of information and the rest of the information
that you requested from that hearing.
Mr. Jordan. That is like call someone up, ``Yeah, we
visited,'' whatever. That, to me, seems problematic of this. If
you can't even tell us which of the 11 remaining you went to
see, it seems to me this would be a priority. If over half have
already failed, we have lost over a billion taxpayer dollars,
we have got 11 still functioning, 8 of those are under a
corrective action plan, you should be able to tell us which
ones you went out to visit.
How about recoupment of any Federal funds? Can you tell me
the progress on recouping the over a billion dollars that has
already been lost to the taxpayer?
Mr. Esquea. I believe we're working with DOJ in terms of
recoupment of those funds.
Mr. Jordan. Why does it have to be in-camera review? Why
can't you just get the information to the chairman and to the
committee and, more importantly, to the American taxpayer?
Mr. Esquea. Again, thank you for that question. Because
there's market-sensitive information in the documents
themselves that if they were disclosed, quite frankly, they
would undermine the ability of these CO-OPs to be competitive,
and they would be no longer be able to operate on a level
playing field.
Mr. Jordan. To me, that is almost laughable. Over half have
already failed. We know the other 11 are going to fail. What
market sensitivity is there? This thing is a complete and total
failure, and somehow to hide behind that and say you have to
come review it in camera--and my understanding is when staff
reviewed it in camera, again, it wasn't responsive to the
subpoena and the letters that we had sent.
One other thing here, Mr. Chairman, and I'll be done.
``I will work to ensure the office continues to focus on
providing Members the technical assistance they need on
legislative priorities, answering oversight requests, and
ensuring that Members have the information necessary to meet
the needs of their constituents...accurate information
available...that is presented in a manner that is useful. The
only way information is of any use to Members and policymakers
is if it is timely delivered.''
Didn't you say that Mr. Esquea?
Mr. Esquea. I said that at my confirmation hearing.
Mr. Jordan. Well, and it was well-said. That's all we're
asking is for you and DHS to live up to what you said when the
United States Senate confirmed you for the position you hold.
And specifically about a CO-OP program that is a complete
failure, at least tell us what's happening with the recoupment
of taxpayer dollars and what's happening with the site visits
to the 11 remaining CO-OPs.
And, with that, I yield back.
Mr. Esquea. Mr. Chairman, I did make a promise at my
confirmation hearing, and I'm living up to that promise. Since
we got the first letter related to CO-OPs back in November, we
have been very aggressive about being responsive to the
committee's requests, and we will continue to be responsive to
this committee's request. Again, these documents will be
available in camera, unredacted, with no time limit for any
member of this committee. That I can assure you.
Chairman Chaffetz. When?
Mr. Esquea. We will schedule it whenever you like, sir.
Again, we will make these documents available to you for in-
camera review, unredacted, whenever you like at the convenience
of this committee. I take my responsibility very, very
seriously.
Chairman Chaffetz. Thank you.
We will now recognize the gentleman from Pennsylvania for
6-1/2 minutes in equal time.
Mr. Cartwright. Thank you, Mr. Chairman.
And thank you, Secretary Esquea for being here. I
appreciate your answers.
I read your written submitted testimony,and on this point
that Mr. Jordan was bringing up, you said that there have also
been some instances where committees have requested extremely
sensitive information, involving cybersecurity, market
sensitivity, ongoing law enforcement investigations, personally
identifiable information, and some other things.
So I appreciate that the committee has not publicly
disclosed confidential information about the currently
operating Consumer Operated and Oriented Plans, so-called CO-
OPs, but given that the committee is continuing to pursue these
sensitive documents, I want to reiterate my concern about
releasing this information in a way that would mislead
consumers about the insurance companies in their States.
Empowering consumers through transparency is a good thing, but
that's not what we would be accomplishing by releasing market-
sensitive information in this way. In reality, it would be
misleading selectively to release information only about the
currently operating CO-OPs that have been placed under
corrective action plans, enhanced oversight plans, by HHS,
without releasing similar information about all of the
insurance companies in these States. Regulators at the State
and Federal level routinely use CAPs, corrective action plans,
enhanced oversight plans, and other regulatory tools, like
consent orders, to make sure insurers stay on track. Secretary
Esquea, HHS uses CAPs to monitor and regulate private insurance
companies in the Medicare Advantage market. Am I correct in
that?
Mr. Esquea. That would be correct sir.
Mr. Cartwright. And large insurance companies offering
Medicare Advantage plans might be placed under a CAP or
enhanced oversight plan by HHS. Am I correct in that?
Mr. Esquea. That would be correct.
Mr. Cartwright. State insurance regulators use similar
tools to address issues raised by consumer complaints, like
billing or claims practices. Correct?
Mr. Esquea. Yes, sir.
Mr. Cartwright. So the committee held a hearing on the CO-
OP program in February, and before that hearing, the committee
received a letter from the National Association of Insurance
Commissioners, or NAIC, and Mr. Chairman, I do ask unanimous
consent to place this letter into the record for today's
hearing.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cartwright. And here's what the NAIC had to say about
the disclosure of confidential information related to the CO-
OPs, and I quote: ``For the sake of the 11 CO-OPs that continue
to operate in our States, we encourage all congressional
Members and their staff to heed the confidential nature of some
of the financial information that may come to your attention.
Divulging information on State actions or the financial status
of any plan that is not public could threaten the long-term
success of these plans.''
Secretary Esquea, my understanding is that HHS has already
provided the documents the committee is asking about today in
two separate in-camera review sessions with committee staff. Am
I correct in that?
Mr. Esquea. That would be correct, sir.
Mr. Cartwright. And, of course, ``in camera'' is a $50
Latin phrase that means in private, but in a way the committee
can see it. Right?
Mr. Esquea. Yes, sir. In private, unredacted.
Mr. Cartwright. All right. So would HHS be willing to
provide additional in-camera review sessions for any member of
this committee who would still want to review these sensitive
materials?
Mr. Esquea. Absolutely, sir.
Mr. Cartwright. And I think you just said that. Right?
Mr. Esquea. Yes, sir.
Mr. Cartwright. Sometimes people can't take yes for an
answer. Can you articulate HHS' concern about producing copies
of those sensitive documents, please?
Mr. Esquea. Absolutely. Again, you held a very important
hearing on CO-OPs back in February, and I think it was the
Maryland insurance commissioner who said: It's one thing to
talk about CAPs; it's another thing to make them public and
make proprietary information that might be in the CAPs public
so that they can, in turn, be used against the CO-OP
themselves.
These CAPs, as I understand it, do in fact have market-
sensitive information that could undermine their ability to
compete in their individual marketplaces.
Mr. Cartwright. I want to echo your concerns and those of
the NAIC that releasing information of this nature could not
only be misleading for thousands of consumers in the United
States, but it also could create a damaging kind of self-
fulfilling prophesy for the future of the CO-OPs.
There are those who want to believe that they're all bound
for failure, but that's not really a reason to drive a stake
through the heart of them by disclosing misleading public
information based on incomplete information.
So I thank you for your work, Secretary Esquea, and I
encourage you to continue to work with the committee.
And, with that, I yield back.
Chairman Chaffetz. Will the gentleman yield?
Mr. Cartwright. I yield back.
Chairman Chaffetz. Okay.
I now recognize the gentleman from Florida, Mr. Mica, for 5
minutes.
Mr. Mica. Did you want to yield to me for 6 and I can yield
you 1? Thank you, Mr. Chairman.
Again, we have agencies that do not comply with a request
from Congress.
Mr. Meyer, I've got a copy here of--it's a small copy; I
usually give these to students. It's the Constitution of the
United States. Are you familiar with that document?
Mr. Meyer. I have read it, yes, sir.
Mr. Mica. And I turn to, after the Preamble, ``We the
people,'' to Article 1, Section 1. You may be familiar with
that, too. It says: ``All legislative powers herein granted
shall be vested in a Congress of the United States which shall
consist of a Senate and House of Representatives.''
Are you aware of that?
Mr. Meyer. I am, sir.
Mr. Mica. And other than this document, these few pages,
the first--this is the Constitution. All laws emanate from this
document, don't they?
Mr. Meyer. Yes. And all laws emanate from the Congress----
Mr. Mica. Yes.
Mr. Meyer. --authorized by that document.
Mr. Mica. I was here when we created, in fact, I helped
author GSA. I helped name GSA and create it. We created that, I
believe, before DHS. I spoke from this dais, when DHS came
through here, and said: We shouldn't do it. It was a mistake to
think it would be more efficient and economical to combine 21
agencies and over 200,000 people.
I turned out to be right, and we should dismantle that. We
have the authority to do that, don't we?
My point is that we created DHS. We created TSA. Do you
think the Congress and this committee has the right to
investigate misconduct and mismanagement at the TSA and DHS?
Mr. Meyer. Yes. Congress has the right to conduct oversight
of TSA and DHS and other agencies.
Mr. Mica. Yeah. We created it; we have that right. But TSA,
in fact, has failed--and DHS--every document request for
production and also extensions of deadlines to produce
documents of November 13, 2015; December 17, 2015; February 20,
2016; March 4, 2016; March 29, most recently, 2016, a few weeks
ago. You've either failed to produce the--well, you've failed
to produce the documents, even under the extended deadline
requests.
Mr. Meyer. Congressman----
Mr. Mica. Are you aware of that?
Mr. Meyer. Congressman, TSA has produced over 21,000----
Mr. Mica. Oh, I heard that.
Mr. Meyer. --pages of documents.
Mr. Mica. I heard that. I heard that. I clearly heard that.
In fact, I wrote right at the top here, 21,000.
And that's the game they play, for the new members. I've
been on this committee longer than anyone, and I can tell you
I've never seen agencies--whether you're Democrat or
Republican, Independent--this is something that is the worst
gaming I have ever seen. They'll do two things. ``We produced
21,000 documents,'' but they didn't produce the documents we
asked for. So they try to cloud the issues with saying, ``We
presented 21,000 documents,'' but you did not produce the
specific request that we have.
Now, then the other thing they'll say, ``Oh, we produced
the witnesses,'' but they produced low-level witnesses, okay,
or people who have no clue. Well, you've seen them. You've seen
them, Mr. Cummings. They have no clue.
But this is fundamental to our responsibility of oversight.
So this is the game that Mr. Meyer is playing and the others
are playing. You've produced lots of paper. You've produced
witnesses.
On Friday--now, in January, we asked the TSA witness to
come in and testify. We called them back on Friday, I'm told by
staff. Are you aware of that?
Mr. Meyer. Yes, I am.
Mr. Mica. Are you aware what took place? Not only are they
producing witnesses that won't be able to testify, those that
are able to testify--members of the committee might know that
there's a law that goes back, oh, practically to, what was it,
2000--I'm sorry, 1912--Lloyd-La Follette, and this says you
can't pay someone if they intimidate someone to not give
Congress proper information.
On Friday, your attorneys stopped a witness from giving
information and testifying whether he was asked to decline
giving information to this committee, which is in violation of
Federal law. Are you aware of that?
Mr. Meyer. I'm aware that he was asked to disclose a
confidential attorney-client----
Mr. Mica. Yeah. And that----
Mr. Meyer. --communication, and he was asked not to. I'm
happy to answer your question, sir.
Mr. Mica. Again----
Mr. Meyer. The question you asked him.
Mr. Mica. Again, we asked him if he was asked, again, to
withhold information that we were entitled to. We believe we're
entitled to--under the Constitution, under the laws, we created
TSA, DHS, and other--other laws that have precedent, we have
the right to question that witness, and the law also says that
we do not have to pay salaries to people who intimidate people
who do not give us the information we request.
And maybe we should start, Mr. Chairman, with withholding
this gentleman's salary.
I yield back.
Chairman Chaffetz. I thank you gentleman.
I now recognize the gentlewoman from Illinois for 6
minutes. Ms. Kelly.
Ms. Kelly. Thank you, Mr. Chair. I agree with the chairman
and the ranking member that our committee has a right and an
obligation to obtain documents to fulfill our constitutional
oversight responsibilities.
However, I also agree that we here on this committee have
our own obligation to avoid making overly broad document
demands to agencies. In many instances, by failing to ask for
what we really need and instead demanding that agencies produce
everything under the sun, we contribute to the very problem
that leads us here today.
One need to look no further than the committee's ongoing
IRS investigation to see how massive, overly broad document
requests can make it difficult for any agency to comply in a
reasonable timeframe. In 2014, our former chairman issued a
subpoena to the head of the Federal Election Commission
demanding copies of all emails sent or received from Lois
Lerner going back to 1986, a time when emails barely even
existed.
Mr. Meyer, DHS also received a subpoena from this committee
last July. That subpoena demanded 18 categories of documents on
the Secret Service. The time period for that subpoena was from
January 1, 2013--I mean, 2000, excuse me, to July 9, 2015.
Isn't that right?
Mr. Meyer. Yes. That's my understanding.
Ms. Kelly. So DHS is being forced to research a 15-year
time period. Is that correct?
Mr. Meyer. That's correct.
Ms. Kelly. Can you briefly tell us what is involved in
being required to produce documents that span a 15-year period?
Mr. Meyer. Thank you, Congresswoman. I'd be happy to answer
your question.
Yes, as you can imagine, researching, finding documents
going back 15 years can be quite an intensive task,
particularly for an agency like the Secret Service, which is
primarily almost exclusively composed of special agents who are
trained in protection and law enforcement, not oversight
response. As you can imagine, if you go back that far, they're
not electronic records. They're, I believe, primarily hardcopy
records. They're often stored offsite, not even in the same
State. It can take a lot of work and a lot of time, but I'd
like to say the Secret Service is committed to doing that and
has been working to do that, even within the constraints it
has, and has been producing documents. I believe they've
produced documents something like 17 different times in
response to that subpoena and the letter that preceded it.
Ms. Kelly. Okay. Is it something that could reasonably be
done in the 2-week deadline DHS received in the subpoena?
Mr. Meyer. I don't see how something like that could be
done in 2 weeks, ma'am.
Ms. Kelly. And is it more because of what you just
described, is that the reason, where there are hardcopies and
things like, or is there--do you have the staff to do it or----
Mr. Meyer. Yes. It's a very time-intensive endeavor. And,
of course, staffing is at a premium, particularly at the Secret
Service.
Ms. Kelly. Okay. Mr. Chairman, if we're serious about
addressing problems with agency delays in document production,
it's imperative that we also examine ourselves. Instead of
inundating agencies with overly broad document requests, we
should focus on asking for only what we really, really need.
I yield back.
Chairman Chaffetz. Will the gentlewoman yield before she--
yield to me before she yields back?
Ms. Kelly. Yes, I will.
Chairman Chaffetz. The subpoena that we're talking about
with the Secret Service was issued on July 9 of 2015. I did
this in conjunction with the letters with Mr. Cummings. The
letters and requests that we did were not being responded to.
And one of the challenges that I think we have, for instance,
looking at this document, it takes them so long at Homeland
Security to respond to these documents because they take so
much time to redact the very information that we need. So we
get a document like this. This is about an investigation
regarding a confidential--people in the Secret Service using
assets that are dedicated for our confidential informants,
using it for retirement parties and to reimburse their
individual credit cards. And when they spend this much time,
everything in blue is redacted, and they redact all that
information, then we are left with a document that they've
spent a lot of time on instead of just handing it over to us.
It really does beg the question, why do they have to redact
anything from the Congress? What is it that they're--that we're
not supposed to see?
In Atlanta, the President of the United States was found in
an elevator with a person who had been arrested--arrested. And
he had a gun on him, and the Secret Service didn't know about
it. So we've asked for months upon months for that information.
They sent us this document. All of the names are redacted. I
mean, it's just list after list of redactions.
And my question to members on this panel and to the
Congress--to those that are testifying, what is it that they
don't think they should share with Congress? Because I don't--I
don't think there should be anything. They trust us with a lot
of sensitive information. So, rhetorically, I ask, what
information do you not want to see?
I'll yield back.
Ms. Kelly. And I'll take back some of my time.
Chairman Chaffetz. Yes. Go ahead.
Ms. Kelly. Mr. Chairman, it is true we wanted to budget
documents going back 15 years, but we didn't call you accusing
you of failing to comply. And I----
Chairman Chaffetz. No. I appreciate it. You're--if the
gentlewoman will yield. I think your heart and your passion is
in the right direction, but I can--as far as the Secret Service
is concerned, that is about as bipartisan as this committee has
ever done. I don't know how to be any more bipartisan than what
we're doing on the Secret Service, but the reality is they
still have not provided the information to this Congress. They
are still hiding stuff and documents from this committee. And
we know it's in their possession, because they give it to us in
redacted format, and that's what's outrageous and that--there
is no justification for that. There is no justification for
that.
If it's confidential or if it's classified, then we'll deal
with it in a classified setting, but we still have a right to
get it. When we're doing an investigation of the Secret
Service, and we've done so in as bipartisan manner as we can--I
think I've made my point.
I yield back.
Ms. Kelly. And I don't have much time, but I know they have
produced about 15,000 pages of--or copies of documentation,
so--I'm done.
Chairman Chaffetz. Thank you.
All right. I now recognize the gentleman from North
Carolina, Mr. Meadows, for 5 minutes.
Mr. Meadows. Thank you, Mr. Chairman.
Mr. Shelanski, let me follow up on where the chairman left
off with regards to responsiveness, and where Mr. Connolly of
Virginia, because the indication that you have given this
committee is that you're doing all that you possibly can as
fast as you possibly can to comply with the subpoena. Is that
your sworn testimony here today?
Mr. Shelanski. We are working as quickly as we're able to
review the documents and produce them to the committee.
Chairman Chaffetz. If you can please move that microphone
just a little bit closer. Thank you.
Mr. Meadows. So can you----
Mr. Shelanski. Is that better?
Chairman Chaffetz. Yes.
Mr. Meadows. Can you----
Mr. Shelanski. Closer?
Chairman Chaffetz. Yes.
Mr. Meadows. Can you explain to the committee why the
initial request that I made of you for documents, why it
required a subpoena to get you to comply? Because when we look
at it, there were only 47 unique documents that we couldn't
find online that you gave this committee between the initial
response and June 4, only 47 that weren't found online, and
that's one every other day. Is that the best you can do?
Mr. Shelanski. When we started our production, we wanted to
start with the material that was responsive but that would be
publicly available, not necessarily----
Mr. Meadows. In what realm would you think that this
committee would ask you for documents that are publicly
available?
Mr. Shelanski. Well, some of them----
Mr. Meadows. If we can go online, we don't need your staff
to do that. We can find it. Why would we ask for that?
Mr. Shelanski. And very quickly thereafter in our second
production, we had documents that were certainly nonpublic, and
we are in the process of preparing a substantial additional
document----
Mr. Meadows. Okay. You've given this committee a little
over 1,300 documents that are unique in a year's time, 1,300,
three a day. Is that the best that your staff can do? Is that
the best that you can do, three a day?
Mr. Shelanski. We have been working very hard to----
Mr. Meadows. That's not the question. You're giving an
answer to a question. Is that the best, yes or no? Is it the
best you can do?
Mr. Shelanski. We've been doing the best we can after what
we've acknowledged, Mr. Meadows, was a slow start since----
Mr. Meadows. Slow start? You got a subpoena and you didn't
do anything for 4 months. That's not a slow start, Mr.
Shelanski, that's a no start.
Mr. Shelanski. It's not true that we didn't do anything,
sir. The beginnings of a response to a subpoena first involve
the search for the documents.
Mr. Meadows. Okay. Stop right there. So you got the search
for the documents. What is that universe?
Mr. Shelanski. Again, I----
Mr. Meadows. Because we have to know the universe in order
for there to be a search. What was the universe?
Mr. Shelanski. I--are you referring to the number of
documents?
Mr. Meadows. Yeah, the universe.
Mr. Shelanski. I don't know what the number of documents
was.
Mr. Meadows. All right. You've given to me 100 percent of
your documents, according to your testimony.
Mr. Shelanski. My documents have been turned over. My
documents were produced in the second--documents of mine. I
mean, I think my----
Mr. Meadows. Have they been turned over to the committee,
100 percent of your documents?
Mr. Shelanski. I think there are probably more of my
documents that are being reviewed. I can't sit here today and
tell you that a hundred----
Mr. Meadows. Well, then how can you say that nothing has
been given or held back from this committee, because your
testimony is you've testified that 100 percent of your
documents have been turned over? How many does that include?
Mr. Shelanski. My documents were included--documents of
mine, including documents that we were told were of greatest
interest to this committee, were turned over in our second
production prior to the subpoena.
Mr. Meadows. Okay. Let me stop you, because you're
mischaracterizing.
Mr. Shelanski. Okay.
Mr. Meadows. Six months we allowed you to prioritize. That
did not come from this committee; that came from your staff in
conjunction with this committee. We asked--we allowed you to
start with the first 6 months.
So, out of the 6 months of documents that you're about to
talk about, what is the universe? How many total documents?
Mr. Shelanski. I do not know, sir, what the total number--
--
Mr. Meadows. So it's taken a year, and you still don't know
how many documents?
Mr. Shelanski. Because a review is ongoing. The search
terms were very, very broad, and when a lot of the documents--
--
Mr. Meadows. Mr. Shelanski--all right. Let me stop you
again.
Mr. Shelanski. Trying to answer, sir.
Mr. Meadows. One year, we need to know, how many documents
are you reviewing? What is the universe of that? You only have
45 employees. I could probably come into your office and figure
out the universe for the last 6 months within a few days.
Mr. Shelanski. The search terms that we've been using--and
we have advised your staff of what those search terms are--are
very broad. In addition to the search that each person in OIRA
has done, there are electronic searches that are run on all of
these documents, and I do not know the full number of documents
that that electronic search----
Mr. Meadows. Okay.
Mr. Shelanski. --has turned----
Mr. Meadows. Mr. Shelanski, you and two other of your
senior OIRA officials have said that you've turned over 100
percent of your documents. You can't have it both ways. Either
you turned over 100 percent and we know the number, or you
haven't turned over 100 percent, or that testimony is false.
Which is it?
Mr. Shelanski. So I want to make very clear what the--what
my testimony is, since I don't know what testimony you're
referring to with the other OIRA officials.
My testimony is that of the documents of mine that have so
far been reviewed for production to the committee, they have
gone to you unredacted, and there is no document that is
identified by this committee that we have said we would not
produce.
Mr. Meadows. So do you know how many documents you've
turned over, the number?
Mr. Shelanski. I know that the total number of pages we've
turned over to this committee----
Mr. Meadows. No, no. Your 100 percent, how many is that--
5,000, 15,000--how many?
Mr. Shelanski. I'm talking about the documents that we have
reviewed and turned over to the committee so far, more than
6,400 pages, most of it----
Mr. Meadows. Mr. Shelanski, let me close with this: I am
frustrated with your inability to answer questions that we've
asked over and over and over. And you're here for sworn
testimony today. These questions should not be a surprise to
you. If you can't answer them, then say that you're not
intending to answer them, so we will know to take the
appropriate--but we keep asking. I asked in October, 5 months.
It's a simple question. Can you not answer the question here
today? Are you not prepared to answer?
Mr. Shelanski. Mr. Meadows, I've been trying as sincerely
as I can to answer your questions. When I can't answer the
question or don't know the answer, I've told you that. I've
tried to make clear exactly what my answer is. For example, my
documents are being reviewed under the same standards as
everybody else's----
Mr. Meadows. How many documents are there?
Mr. Shelanski. Of my total documents? Since I don't----
Mr. Meadows. How many total documents have you turned over?
Mr. Shelanski. And, again, I have made clear to you that I
don't know the answer to what----
Mr. Meadows. Mr. Chairman----
Mr. Shelanski. --is.
Mr. Meadows. --this witness is being unresponsive, and I
think we need to deal with it appropriately.
I yield back.
Chairman Chaffetz. I agree with the gentleman.
The gentleman yields back.
I now recognize the gentlewoman from New Jersey, Mrs.
Watson Coleman, for 5 minutes.
Mrs. Watson Coleman. Thank you.
Mr. Shelanski, as you know, one of the purposes of the
Clean Water Act is to provide clean drinking water for the
American public.
Mr. Shelanski. That is correct.
Mrs. Watson Coleman. Clean drinking water seems like an
unobectionable goal to me, but many of my Republican colleagues
have launched an offensive against the Clean Water Act rule,
seemingly driven by their agenda to cripple the EPA. According
to Speaker Ryan, the Clean Water Act is, and I quote, ``another
example of Washington bureaucrats sticking their nose where it
doesn't belong,'' close quote. Former Presidential candidate
Marco Rubio agrees. He called the Clean Water Act rule a,
quote, ``power grab'' and a, quote, ``brazen overreach.'' He
said this, and I quote: ``We need to end this massive mandate
once and for all and put a cap on all regulations so that
Washington bureaucrats can be held accountable for the costs
they are trying to inflict on our economy.''
Were aware of these statements that have been made?
Mr. Shelanski. I've heard various statements to that
effect, yes.
Mrs. Watson Coleman. Opposition to the Clean Water Act rule
has not been limited to extreme rhetoric. In November of last
year, the Republican-controlled Senate voted on S.J. Resolution
22, a resolution that would nullify the rule.
Were you aware of this situation, this resolution?
Mr. Shelanski. Yes, I was.
Mrs. Watson Coleman. Over the last three Congresses, the
House has taken at least four votes directly related to the
Clean Water Act rule. Now Republicans on this committee have
turned to investigation in an effort to stop the rule. They
have requested huge numbers of documents from EPA and the Army
and your office, OIRA, and they want 9 years of material. All
three agencies have provided a combined total of more than
40,000 pages of documents to this committee thus far.
Administrator Shelanski, is your agency cooperating with
this committee?
Mr. Shelanski. Thank you very much, Congresswoman.
Yes, my agency is trying as hard as possible to cooperate
with this committee.
Mrs. Watson Coleman. Thank you, Mr. Shelanski. Will you
continue to provide responsive materials?
Mr. Shelanski. I pledge our absolute commitment to
continuing to cooperate with this committee and as quickly as
possible to getting them the material they need for their----
Mrs. Watson Coleman. Thank you, Mr. Shelanski.
During this committee's investigation into the Flint water
crisis, Republicans harshly criticized the EPA for not stepping
in earlier to save the people of Flint from Governor Snyder's
ill-conceived emergency management system and his incompetence.
Yet, in the context of the Clean Water Act rule, Republicans
want EPA to take a backseat in the States. Representative Gosar
said this, and I quote: ``That is why the House is acting this
week by voting on the Regulatory Integrity Protection Act,
which will prevent this blatant Federal overreach. This bill
scraps the WOTUS rule and puts States, local governments, and
private water rights holders back in the driver's seat for
managing our water.''
The hypocrisy of my Republican colleagues on the issue of
clean water reveals their true motivation, and that is to
destroy the EPA at any cost. It is sad that politics continues
to trump the interests of the American people for something as
basic as clean water, and it's a darn shame that you are being
harassed by this committee for trying to do your job with the
limited resources you have.
With that, I yield back.
Chairman Chaffetz. The gentlewoman yields back.
We'll now recognize the gentleman from Florida, Mr.
DeSantis, for 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman.
Mr. Meyer, we've, on this committee, done a lot of
oversight over the Department of Homeland Security, how they
released people who were in the country illegally and then
those people ended up committing criminal offenses. And in the
past, we've been able to get the figures from fiscal year 2013,
fiscal year 2014, the number of people who have actually been
convicted of crimes and then still released by DHS.
There was a recent report in the Washington Times that 121
individuals who were in the country illegally and were in
custody of ICE were then subsequently released and then
subsequently charged with murder, and the committee has tried
to get information about that and other issues.
On March 10, the committee staff requested information from
ICE regarding the number of criminal illegal aliens who were
released by DHS in 2015 broken down by crimes committed, like
we've received in the past. Shortly thereafter, the staff also
asked for individuals released, based on the Davis case, for
2015 broken down by crimes committed, because that's one of the
reasons that ICE will give us for why these individuals are
released. And then the committee sent a letter, on March 17,
2015, requesting both of these data sets, along with recidivist
information for 2015, and the return date on that letter was
March 31, 2016, but nothing has been provided to us.
This is information that clearly the agency keeps, because
they provided it in 2013 and in 2014, and we've made repeated
requests for this information, and now 6 months after the
fiscal year has ended and the Director of ICE is going to
testify before this committee next week, no information has
been received to date. We've been told repeatedly that the
information is available but is in, quote, ``clearance.'' We
haven't even received a briefing in preparation of the hearing.
So my question to you is, when will the committee receive
this information?
Mr. Meyer. Thank you, Congressman. I am aware that such
information has been made available in the past. I have not
personally been involved in this issue currently. So I'm happy
to take that question back and get you an answer, but I don't
myself know that.
Mr. DeSantis. Well, what would be--I mean, I'm just trying
to figure out, what would be the reason to not have it 6 months
after the fiscal year ended, when it's something that's been
done routinely in the past.
Mr. Meyer. Sir, I don't know. I'm happy to look into that.
Mr. DeSantis. Okay. You know, I think it's an important
issue. We are told that the administration is really focused on
people who are coming here committing crimes, but when we get
those breakdowns, you know, that suggests that that is not
really the case and that there are folks who are in ICE
custody, even people who have been convicted of criminal
offenses and then released. And I think it's an important
issue, because--you know, I wish we could prevent every crime
from ever happening in the United States.
Obviously, we have penalties to try to deter people, but
when you actually have somebody who's here illegally and then
they're in the custody of ICE, if ICE would simply have
repatriated them, well, then the person who ended up being the
victim of a crime would not have been the victim of a crime.
And so that's one example where the government clearly could
have prevented crimes from occurring. So I think it's a major
issue of public safety.
So I want you to take it back. We have the Director coming
next week. We absolutely need to have that information in time
that we can review it and then ask her pertinent questions
about that.
Mr. Meyer. Yeah. Congressman, I agree with you: it's an
important issue. There are obvious public safety implications.
I'm happy to look into it and get back to you.
Mr. DeSantis. Okay. Great.
And, with that, I can yield back the balance of my time.
Chairman Chaffetz. Well, if the gentleman will yield.
Mr. DeSantis. Yes.
Chairman Chaffetz. Mr. Meyer, what do you believe Congress
has no right to look at?
Mr. Meyer. Congress, as I believe I discussed with
Congressman Mica, is entitled to oversight under the
Constitution and under various laws, so it is entitled to look
into any matter that is legitimate oversight that serves a
legislative interest.
Chairman Chaffetz. What is legitimate oversight, in your
mind?
Mr. Meyer. Well, I don't know. I don't have a view as to
what constitutes legitimate oversight.
Chairman Chaffetz. Well, you used the word. I didn't----
Mr. Meyer. Yeah. Because I believe that's what--the state
of the law, but I think countless courts----
Chairman Chaffetz. Who gets to decide what legitimate
oversight is?
Mr. Meyer. Well, the courts have called on the executive
branch and the legislative branch to work together to try to
accommodate each other's interests, and that's certainly what
we try to do.
Chairman Chaffetz. So what--I'm trying to--my time is
short. Very specifically, name something you don't think the
Congress has the right to see.
Mr. Meyer. Well, courts have recognized the executive
privilege, for example. So if something is clearly covered by
the executive privilege----
Chairman Chaffetz. And who can offer the executive
privilege?
Mr. Meyer. Who can offer it? The President typically would
authorize----
Chairman Chaffetz. So the President personally has to do
that. And if done so----
Mr. Meyer. Right.
Chairman Chaffetz. --it is common practice to offer a log
of those items. Correct?
Mr. Meyer. I believe so.
Chairman Chaffetz. And has the President issued or cited
executive privilege on any of the issues that we have been
talking about or any of the subpoenas or letter requests?
Mr. Meyer. I can't speak to the other agencies----
Chairman Chaffetz. No. I'm talking about just Homeland
Security.
Mr. Meyer. In the 5 years I've been at DHS, executive
privilege has not been claimed on any item.
Chairman Chaffetz. So there's no executive privilege, you
can't cite a single thing Congress shouldn't see, so why do you
redact materials?
Mr. Meyer. Well, it depends on the material. Some material
is simply not responsive to what the committee is asking about,
because you can have a document that deals with the issue
you're inquiring about and then also includes other issues.
Chairman Chaffetz. Do you believe names are important?
Mr. Meyer. It depends on the matter. There are certainly
plenty of names we have provided to you.
Chairman Chaffetz. See, this is why we think you're totally
nonresponsive. You're playing a game of obstruction. I will
explore this more.
It's time now to recognize the gentlewoman from Michigan,
Mrs. Lawrence, for 5 minutes.
Mrs. Lawrence. Thank you, Mr. Chair.
I want to be on the record that I agree legitimate
oversight is absolutely the right and the responsibility of
Congress. As I've stated numerous times, I've had experience in
Federal Government and management, and I do understand that
when you receive a request for documents, that is a process
that requires a certain amount of time.
So, Mr. Meyer, the committee requested ICE to produce
documents about the security of an employment-based visa
program, known as EB-5 program. Specifically, the committee
requested all documents and communications referring or
relating to concerns about EB-5, including communication with
other agencies, since January 1 of 2010.
Can you briefly walk me through what's involved in
searching and producing all documents and all communications
related specifically to EB-5 program beginning from 2010?
Mr. Meyer. Thank you, Congresswoman. I'd be happy to. As
you mentioned, the EB-5 program is a program that has been the
subject of considerable congressional attention going back as
far as 2010 and certainly in 2012, 2014. And at that time, we
responded to a lot of congressional oversight about it. We've
testified at 16 hearings about----
Mrs. Lawrence. That's not my question. I said, how long and
what does it take to fulfill that request?
Mr. Meyer. It takes the same sort of thing I discussed with
your colleague, Congresswoman. It requires searching for
documents, reviewing them, finding----
Mrs. Lawrence. How do you search? How many people are
involved? How many hours? Who gets the assignment? Is it
random? Is there a designated person? How do you search?
Mr. Meyer. So it depends on the issue, but let's take this
issue, the EB-5 program. The EB-5 program is a program that is
housed primarily at USCIS, United States Citizenship and
Immigration Services, but this particular request focused more
on ICE, Immigration and Customs Enforcement, but in order for
the search to be complete on matters related to EB-5, we have
to search in two different places, each of which is tens of
thousands of employees.
What we would typically do is try to identify as precisely
as we can what the committee is looking for, try to talk to the
committee staff so that we can be clear about that, and then go
to the people who we think would normally have those documents,
and try to identify them. There are also documents, I should
say----
Mrs. Lawrence. Do you have an internal person that deals
only with providing responses to requests for information in
your department?
Mr. Meyer. So there are many people who deal with that in
various----
Mrs. Lawrence. Do you have a particular person? So when the
request comes in----
Mr. Meyer. So a request like that comes into ICE, and
typically the Office of Congressional Relations at ICE as well
as the Chief Counsel's Office would be involved. If there are
equities involving the headquarters, then also our Office of
General Counsel and the Office of Legislative Affairs at DHS
might also be involved.
Mrs. Lawrence. You know, Mr. Meyer, you clearly hear the
sense of frustration. You have named a wide array of people
responding to this. You know, it's bureaucracy, as we look at
it as creating efficiency, sometimes creates bureaucracy and
hinders the progress.
It would seem to me if we really want to address this
issue, because I truly do believe in legitimate oversight, you
appear to be sincere in trying to get it, but when you have 10
people at different departments, in some kind of way, we--
gentlemen, as you sit here today in your different roles, we
need to find a way to streamline this process, hold some
accountability, because if you're waiting for the legal
department to respond to another department and to--everyone to
come together, I clearly see where there could be balls
dropped, there could be a delay in the process. And if you
don't address that, we're going to continue to keep circling
around in this debate. If you keep doing the same thing, you're
going to keep winding up here hearing this conversation.
Now, we all know that you have--staff has been reduced. You
still must do your job, and I as a Member of Congress expect
for you to do it, but you are not meeting the expectation. So,
clearly, how could we do it quicker?
Mr. Meyer. So may I respond, Congresswoman?
Mrs. Lawrence. Yes.
Mr. Meyer. I completely agree, and we are trying very hard
to improve our performance. As I said in my opening statement,
we have improved significantly over the past number of years.
Our response time has gone down by 60 percent, and that's in
the face of--I believe it's something like a 75 or 100 percent
increase in the number of requests were getting specifically
from this committee, and as I said, despite those increases,
we've improved our responsiveness. There's definitely a lot
more improvement we can do. We are working to do that.
Mrs. Lawrence. I will tell you, if you don't give the
information, you're going to get the requests probably broader
and more frequently. We've got to improve.
Thank you. I yield back.
Chairman Chaffetz. I thank the gentlewoman.
We'll now recognize the gentleman from North Carolina, Mr.
Walker, for 5 minutes.
Mr. Walker. Thank you, Mr. Chairman.
I was just surprised to hear Mr. Meyer agree that he was
not doing the job that he should be doing, but my questions--in
fact, I have several questions for Mr. Esquea, so let's get
started here.
Was it your decision to make certain materials available
only through in-camera review?
Mr. Esquea. I consulted with CMS, and I was part of the
decisionmaking, yes.
Mr. Walker. Can you repeat that again?
Mr. Esquea. I consulted with CMS, and I was part of the
decisionmaking, yes.
Mr. Walker. You were part of the decision?
Mr. Esquea. I approved that decision, yes.
Mr. Walker. Okay. Thank you. What involvement from the
White House, OMB, in regards to responding to the committee's
requests? Was there any involvement from the White House?
Mr. Esquea. Mr. Chairman, when there are--Congressman, when
there are agency equities involved, I may consult with others.
The ACA is an important priority of this administration, so
they probably would like to know what I'm doing, so I may have
advised them as to where I was going.
Mr. Walker. Sure. Well, that wasn't really an answer, so
let's hone it down a little bit more. Were there any
conversations with Secretary Burwell?
Mr. Esquea. The Secretary was aware of what we were doing,
yes.
Mr. Walker. When was the last time you talked with
Secretary Burwell?
Mr. Esquea. On this topic?
Mr. Walker. Sure.
Mr. Esquea. I'm not--I cannot remember. I don't think I've
had a direct conversation with her about this per se.
Mr. Walker. I think you just said earlier there's been some
discussion, but you just don't remember exactly----
Mr. Esquea. Well, I consult----
Mr. Walker. --when it was?
Mr. Esquea. I consulted with CMS and CMS leadership to
understand exactly what the request was for, what did it
entail, and what were the issues that were of concern.
Mr. Walker. I see. How about Administrator Slavitt?
Mr. Esquea. Yes. He was involved in the decisionmaking
absolutely.
Mr. Walker. You remember your conversation with him, but
not specifically, so let me ask this: When was the last time
you talked to Administrator Slavitt regarding this hearing?
Mr. Esquea. I have not spoken with him regarding this
hearing. I did have a conversation with the chief of staff,
Mandy Cohen, who testified here in February, but that was at
the beginning of the process when we first--when I first
understood that the committee was interested in these
documents.
Mr. Walker. Okay. Now that we know there's been some
influence in preparing for today's testimony, were there any
questions that you were directed to not answer?
Mr. Esquea. No, sir.
Mr. Walker. Okay. Were there any materials that you were
instructed not to agree to produce to the committee?
Mr. Esquea. No, sir.
Mr. Walker. Okay. Have there been any discussions at HHS
about intentionally not producing materials to this committee?
Mr. Esquea. No, sir.
Mr. Walker. Okay. Who is making the final decisions about
what does and does not get produced to this committee?
Mr. Esquea. Congressman, I will consult, but, ultimately,
it's usually my name that goes on these letters that go to the
committee. So I help in those decisionmakings.
Mr. Walker. You say ``usually.'' When are there decisions
that your name doesn't go on the letter?
Mr. Esquea. Well, if a letter goes directly to the
Secretary, for example, and the Secretary wants to sign it
herself, you know, she will convey what she would like to do.
Mr. Walker. Understood.
Mr. Esquea. But, by and large, since--I'm more likely to be
in the weeds than the Secretary so that's why it's often more
appropriate for me to sign the letter.
Mr. Walker. What is the universe of materials--this may be
my final question, because I want to certainly get a definitive
answer----
Mr. Esquea. Sure.
Mr. Walker. --since you are--we are all under oath here.
What is the universe of materials that has not yet been
produced, in other words, types of documents, number of
custodians, number of documents? Can you speak to that?
Mr. Esquea. I think the best answer to that would be that
I'm meeting with the committee staff--my staff is meeting with
this committee staff later this week to determine what
questions still remain in terms of--and answers.
Mr. Walker. Legitimately, I believe we, along with the
American people, have--we're obligated to be frustrated with
this. It's been 5 months since the first request. You've had
weeks to prepare, and I just don't understand why we're not
being able to get the timely responses that we're needing to
get. So let me----
Mr. Esquea. Congressman, again, since we first got this
request back in November, we have provided 31,000 pages of
documents over six productions; we've provided an in-person
briefing by our key CMS official, who provides oversight of the
CO-OP program; we've provided a witness for a hearing for this
committee; and we've had two in-camera reviews. So, again, I
think we've acted fairly aggressively, and we've worked very
closely with this committee.
Mr. Walker. You've acted fairly aggressively under your
definition, but it's like dealing with my children when I ask
them for the truth, what we act--like to get or what we call
the truth at our house is when they share all the information
and not just partial information. I thank you for your time.
With that, I yield back, Mr. Chairman.
Chairman Chaffetz. If the gentleman will yield to me prior
to yielding back, I'd appreciate it.
Mr. Walker. Absolutely.
Chairman Chaffetz. Mr. Esquea, why should we settle for an
in-camera review?
Mr. Esquea. Mr. Chairman, we are doing all that we can to
be responsive and to respond to the questions of this
committee.
Chairman Chaffetz. No, no, no, no.
Mr. Esquea. We are----
Chairman Chaffetz. Wait a second. I issued you a subpoena,
right----
Mr. Esquea. Yes, sir.
Chairman Chaffetz. --Health and Human Services a subpoena?
Mr. Esquea. Yes, sir.
Chairman Chaffetz. Do you feel an obligation to provide
that information to this committee?
Mr. Esquea. I believe I have an obligation to make sure you
have access to this information, which I have done.
Chairman Chaffetz. So you don't believe that a subpoena is
compulsion to provide the documentation to the committee?
Mr. Esquea. Sir, let's be clear. We are responding to the
subpoena. We are making sure that you have access to these
materials whenever you like----
Chairman Chaffetz. Where----
Mr. Esquea. --access.
Chairman Chaffetz. Where do you get the legal justification
to provide access as opposed to providing?
Mr. Esquea. Sir, I'm at a disadvantage in that I'm not a
lawyer, so I will answer the question this way.
Chairman Chaffetz. Well, I'm at a disadvantage----
Mr. Esquea. I will----
Chairman Chaffetz. --but----
Mr. Esquea. I--what I will say is that we are working very
hard to make sure that you have access to this information
whenever you like unredacted. This information will be
available----
Chairman Chaffetz. Is there a national security concern?
Mr. Esquea. Oh, sir, I think you understand this is about
market sensitivity and the ability of these CO-OPs to----
Chairman Chaffetz. It could be embarrassing. It's just----
Mr. Esquea. No.
Chairman Chaffetz. --because of embarrassment?
Mr. Esquea. No, sir. I don't think it's a question of
embarrassment. It's just a question of we will--this--we have
made these materials available to you. We will continue to make
these materials available to you. It's a question of market
sensitivity.
Chairman Chaffetz. I'm going to come back this. My time has
expired.
I want to recognize the gentleman from Missouri, Mr. Clay,
for 5 minutes plus.
Mr. Clay. Thank you, Mr. Chairman.
And, you know, today's hearing is to address the status of
agency responses to committee document requests. I want to make
clear that I fully support the committee's authority to obtain
documents as part of our investigative function.
However, we on this committee also have a duty not to send
overbroad requests that actually cause the waste and
inefficiency we are trying to root out.
Mr. Esquea, last month, your agency received a letter from
this committee seeking a large amount of information about art
and artifacts possessed by your agency. The letter stated, and
I quote: ``Art collections in Federal buildings bring creative
and artistic beauty to public spaces and create attractive work
environments for Federal employees and the public that they
serve. These taxpayer-funded art programs, however, raise the
potential for wasteful spending,'' end of quote.
To your knowledge, have there been any specific examples of
art possessed by your agency that have been identified by the
committee as wasteful----
Mr. Esquea. Congressman----
Mr. Clay. --to your knowledge.
Mr. Esquea. To my knowledge, no. And I know my walls are
fairly sparse, so I'm not aware of any problems in this area.
Mr. Clay. Is this a widespread problem at HHS?
Mr. Esquea. I am not aware this is a problem, sir.
Mr. Clay. Are any of you aware of any concerns that have
been raised by the GAO of your agency's inspector--or your
agency's IG about wasteful spending on your art or artifacts?
Mr. Meyer?
Mr. Meyer. No, sir.
Mr. Clay. Mr. Shelanski?
Mr. Shelanski. No, sir.
Mr. Clay. Thank you.
Mr. Esquea, you were not alone. In fact, the committee sent
these letters to 27 different agencies.
Mr. Meyer, DHS received one as well. Is that correct?
Mr. Meyer. Yes, we did, sir.
Mr. Clay. The committee's letter requested every document,
and I quote, ``referring or relating to the number, nature,
location, and monetary value of art and artifacts'' in your
agency's possession.
Were you aware that 26 other agencies received this
request, including the U.S. Fine Arts Commission and the
National Archives and Records commission?
Mr. Meyer. I was aware that some other agencies had
received it. I wasn't aware of who they all were.
Mr. Clay. Okay. And the letter also asked for documents
relating to the resources used by the agency to preserve art
and manage exhibits, insurance premiums paid on art and
artifacts, contracts related to art and artifacts, and pending
purchases and acquisitions of art and artifacts.
The Department of Homeland Security has 16 different
operational and support components. Can you describe the type
of resources that will be needed to comply with these requests?
Mr. Meyer. Well, as I understand it, to fully comply with
this request, we would have to look at every location that DHS
maintains. I believe we are located in all 50 States. We have
200 and--approximately 230,000 employees. We--just in the
national capital region, we have over 50 locations. So it would
be substantial, the number of resources required.
Mr. Clay. Thank you for that response.
The Department of Defense told the committee that
responding to this request will require, and I quote,
``reaching across the military departments and agencies to seek
specific documents and detailed information from numerous and
diverse defense facilities.''
It seems like the real waste here is the resources agencies
will have to expend to respond to this request. Again, let me
be clear: If there is some specific allegation or abuse or if
there is a case in which someone comes to us to allege waste,
fraud, or abuse, that's fine. But this is a fishing expedition
across the entire Federal Government, and I don't think that it
serves the taxpayers well.
And, you know, I'll yield to my friend, the chairman. Maybe
you can explain why we are expending so many resources to do
this, Mr. Chairman. I mean, look, the Department of Defense,
don't you think they have some--you know, some more important
things to do like fight terrorism?
Chairman Chaffetz. One of the things sitting before us, the
reason we have Homeland Security here, is our investigation
into the Secret Service, and that's been as bipartisan as can
possibly be.
Mr. Clay. And then it gets into art and artifacts?
Chairman Chaffetz. Well----
Mr. Clay. What is that all about?
Chairman Chaffetz. Again, let's focus on the hearing here.
I think there is a good--there are millions and millions of
dollars going out the door in art and artifacts. I will talk to
you more about that, but the gentlemen that are sitting here
before us have topics that are very relevant to the committee
and I--Homeland Security, which you asked a question; Secret
Service, it couldn't be more bipartisan.
Mr. Clay. But, Mr. Chairman, don't you think those are kind
of onerous requests that don't have anything to do with waste,
fraud, and abuse? I think it is, to ask the Department of
Defense.
Chairman Chaffetz. The Department of Defense is not
testifying today.
Mr. Clay. I know it, but you requested that----
Chairman Chaffetz. Yes. And I think----
Mr. Clay. --information from them.
Chairman Chaffetz. And when you see the conclusion of this,
I think you'll be mystified as to how we're spending millions
and millions of dollars going out the door and how it's out.
That's one of the parts of our jurisdiction----
Mr. Clay. Sure.
Chairman Chaffetz. --is the Department of Archives.
Mr. Clay. I don't have a problem with that, but I would
love to discuss this further with you----
Chairman Chaffetz. Happy to do so.
Mr. Clay. --and to see the evidence and----
Chairman Chaffetz. Well, we----
Mr. Clay. --government----
Chairman Chaffetz. Until the agency provides that
information, we have reason to believe that there is a lot of
waste, fraud, and abuse. And to ask these agencies to provide
that information, which should be right at their fingerprints,
tell us what's in your possession, that is not a difficult
request.
Mr. Clay. I will await the responses. Thank you.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from Georgia, Mr. Hice, for 5
minutes.
Mr. Hice. Thank you very much, Mr. Chairman.
Just as the previous conversation was going on, we're all
here because of waste, fraud, and abuse, and we're not getting
the information we have to to deal with the problem that we
need to deal with.
Mr. Esquea, particularly HHS has failed, as these others as
well, but HHS has not produced the documents from the subpoena.
And, you know, I was--hearing Mr. Shelanski a while ago making
a big deal about the reason for their delay and potential
obstruction, whatever it may be, is because of review, it's
just taking absolutely forever for them to review, and, quite
frankly, that's made him an uncooperative and unresponsive
witness here today. Do you use the same excuse that review is
the reason that we're not getting the information requested?
Mr. Esquea. Actually, Congressman, we are making materials
available to the committee for their review.
Mr. Hice. Then why are we here? Why are you here? If you've
provided all the information, why are you seated here? Why are
we having this hearing? It's because we don't have the
information.
Your excuse has been market sensitivities. What in the
world is market sensitivities?
Mr. Esquea. Again, I'm not an expert on the CO-OPs, but at
your hearing in February, I believe our witness said that the
types of information that were in these CAPs were related to
plan pricing, vendor oversights, business strategy, that sort
of thing, the type of thing that, if you would make public,
could undermine the competitiveness of these CO-OPs. So, again,
I don't run the CO-OP program, and I don't have firsthand
knowledge.
Mr. Hice. So what is the legal basis, then, for market
sensitivities being the reason Congress can't get the
subpoenaed information?
Mr. Esquea. Well, we are--we have made this submission
available to the committee. We're just asking the committee to
work with us to continue with in-camera reviews of this
information.
Mr. Hice. Are market sensitivities exempted from a
subpoena? Is that reason enough to exempt the information we
request?
Mr. Esquea. You are asking appropriate oversight questions,
and we are trying to provide you those answers via in-camera
reviews at----
Mr. Hice. We're not asking for in camera. We're asking for
the information to this committee.
Mr. Esquea. And we are providing access to this information
whenever----
Mr. Hice. You're not providing the information; otherwise,
we wouldn't be having this hearing.
Mr. Esquea. Well, again, Congressman, we are doing all we
can to provide the committee with access to this information.
Mr. Hice. Well, God forbid that you provide this market-
sensitive information to the public market, free marketplace. I
mean, you've got--we've got 23 CO-OPs: 12 of them have failed;
21 of them have incurred net losses; 19 have claims exceeding
premiums; 13 are not meeting enrollment. It's an absolute
failure in every direction. There is no reason to hide behind
market sensitivities as an excuse not to provide this committee
with that which has been requested through subpoena.
All right. Not only is it market sensitivity. I mean, you
use that excuse, but the vast majority of documents have been
withheld with absolutely no explanation whatsoever.
Mr. Esquea. Sir, I'm not aware of any documents that have
been withheld. We are working diligently to provide responsive
document----
Mr. Hice. Well, if you are that clueless as to not even
know why you are here, you're here because we have not received
the documents that have been requested or they've been redacted
to point they're worthless.
Mr. Esquea. I'm not aware of any documents that we've
redacted, sir.
Mr. Hice. All right. Well, there have been no documents
that have been produced to this committee relating to
recoupment of Federal funds from failed CO-OPs and exchanges.
Mr. Esquea. I believe, sir, that the DOJ has the lead on
that, so I'm not sure we have any information on it.
Mr. Hice. So when is that information going to be
available?
Mr. Esquea. Again, I can circle back to see what DOJ can
provide, but DOJ is the lead in terms of recoupment of those
funds.
Mr. Hice. It's just--so you don't have anything to do;
that's out of your jurisdiction? Is that your testimony?
Mr. Esquea. Well, my testimony is I believe DOJ has the
lead for that.
Mr. Hice. Well, that's not my question. Are you saying that
it is outside of your jurisdiction to have that information for
us?
Mr. Esquea. I don't have that information, but, again, I
can circle back to see--just to be clear about what it is I may
have, but my understanding is DOJ has the lead for that, and
they might be the appropriate place to ask that question.
Mr. Hice. Mr. Chairman, I'll yield back, but, again, it
just seems that we have all three witnesses today--they're
being totally unresponsive to what we're trying to get to. I
feel like we're running circles and chasing rabbits and getting
absolutely nowhere.
Chairman Chaffetz. Will the gentleman yield----
Mr. Hice. Yes, sir.
Chairman Chaffetz. --prior to yielding back?
Mr. Hice. Yes.
Chairman Chaffetz. Mr. Esquea, you cannot simultaneously
sit and tell this committee and testify, ``We're doing all we
can do,'' which was your quote, and still not provide them to
this committee. If you were doing all you can do, you would
actually provide those documents to the committee. Your
assertion that an in-camera review is an appropriate response
to a subpoena is fiction. There's no basis in law.
Is it your testimony that the Health and Human Services
Secretary, Ms. Burwell, has no intention of complying with the
subpoena? Is that your testimony?
Mr. Esquea. Mr. Chairman, my testimony is that we're
working very hard to accommodate and understand the interests
of this committee, including having access to this information.
Chairman Chaffetz. Is there anything that is ambiguous--is
there any ambiguity about the nature of the subpoena? You
obviously have these materials. Correct?
Mr. Esquea. We've made the materials available to the
committee. So, yes, we have them.
Chairman Chaffetz. No. You----
Mr. Esquea. They're in our possession, sir.
Chairman Chaffetz. But they're in your possession; they're
not in our possession.
Mr. Esquea. That's correct, sir.
Chairman Chaffetz. Are you testifying that you have no
intention of making those materials--giving those materials to
the United States Congress?
Mr. Esquea. I am--my testimony is that we are making this
material available to the committee in camera----
Chairman Chaffetz. It's not available to us unless you give
it to us. And so my staff cannot review it at their leisure.
Our members cannot access that information immediately by
coming down to the committee rooms. Your definition is fiction.
You're making it up. It's not part of the law.
I'm going to ask you one more time: Are you or are you not
going to take those materials and give them, as they're
required under the subpoena, to the United States Congress,
this committee?
Mr. Esquea. Mr. Chairman, if there are further
accommodations we can make, we will make them, and we will
continue to work with----
Chairman Chaffetz. If you will make them, you will comply
with the subpoena and give them to us. Are you or are you not
going to do that?
Mr. Esquea. Mr. Chairman, we will continue to make these
documents available to the committee. And we--and I--I simply
ask that you work with us in this process.
Chairman Chaffetz. I--no. I'm not in a negotiation mode.
When I issue a subpoena to you, it's not a negotiation point.
You owe these documents to the United States Congress based on
this subpoena.
Are you or are you not going to give this committee, the
United States Congress, these documents that are under
subpoena, yes or no? Yes or no?
Mr. Esquea. We will continue to work with this committee,
Mr. Chairman.
Chairman Chaffetz. I recognize the ranking member, Mr.
Cummings.
Mr. Cummings. Thank you very much.
Gentlemen, in listening to all of this, we have to have a
balance here. And it seems, in listening, that this process at
the very least can be speeded up.
What can we do to speed up the process of getting the
documents that the committee has asked for? What can we do to
help you speed that process up? Talk to me. Come on. Don't be
silent.
Mr. Shelanski.
Mr. Shelanski. Thank you, Mr. Cummings. We just seek to
continue to have cooperative discussions with the committee
staff so that we know what documents they are most interested
in and we can know what to prioritize next in our review.
As I tried to make clear in response to Mr. Meadows'
statement, I have turned over all of my documents for review;
all of our documents have been searched and are being reviewed;
and we have been producing them to this committee as quickly as
we can get through them.
Mr. Cummings. But you had said a little bit earlier that
when you first got the subpoenas, that you were kind of slow,
your folks were kind of slow, and then you implied that you
sped things up. And I'm just trying to make sure you're not
moving in the slow gear again.
Mr. Shelanski. No, sir.
Mr. Cummings. And I'm trying to figure out why you were in
slow gear.
Mr. Shelanski. We've been speeding up. In fact, following
up on our commitment to this committee in two recent hearings,
we have increased our level of production, and we are working
to--and I'm very hopeful we are nearing the stage where we will
complete this phase and get good guidance from the committee
staff on what they would like us to prioritize next.
I would also note we have two senior officials--in regard
to Mr. Mica's comment about agencies producing low-level
officials--we are producing our very senior officials'
information and availability for transcribed interviews first.
We are starting at the top, and we are going to continue to
work with the committee as quickly as possible to complete our
production.
Mr. Cummings. Let me get to the thing that concerns me most
today, though I may come back to this if I have time, is the
idea that the majority gets documents that we don't get. See,
that--I'm going to tell you something: that really bothers me.
Mr. Meyer, the committee has requested multiple document
productions from TSA as well as transcribed interviews of
employees of TSA. In your testimony, you stated, and I quote:
``In the past 6 months, TSA has received 8 letters with over 30
requests for information. In response, TSA has made available
about 15,000 pages of documents. TSA staff conducted a
briefing, and five TSA personnel have participated in
transcribed interviews.'' Is that correct?
Mr. Meyer. Yes.
Mr. Cummings. Come on, Mr. Meyer. That's your testimony.
Just say ``yes.''
Mr. Meyer. Yes.
Mr. Cummings. That is--all right.
Mr. Meyer. Yes, sir.
Mr. Cummings. Is TSA continuing to cooperate with the
committee to produce documents in response to these requests?
Mr. Meyer. Yes, sir.
Mr. Cummings. On December 3, 2015, Chairman Chaffetz sent a
letter to TSA requesting documents and communications relating
to cases of alleged misconduct by executive-level TSA employees
since 2012, including reports of investigation. On April 6,
2016, TSA made available for in-camera review unredacted
versions of the reports. TSA also made available other
documents relating to proposed disciplinary actions, employee
responses, and final administrative decisions on 13 of 17
cases. Yesterday, the committee was notified that the remaining
four cases are now available for review. Is that correct, Mr.
Meyer?
Mr. Meyer. Yes. That's my understanding.
Mr. Cummings. TSA has made productions to the majority, Mr.
Meyer, without simultaneously making productions to the
minority. Now, when you started your statement, I paid special
attention to your written statement, and you said it here today
about all your work, working on both sides of the aisle,
working all these years in Congress, and being over the
producers of the documents. You know the significance of
getting documents to the majority and the minority
simultaneously, do you not?
Mr. Meyer. Yes, sir.
Mr. Cummings. What's that about? Help me with that. Because
let me tell you something. Let me tell you something: I want--
my job in part is to make sure that my staff has the same
documents that the majority has. Now you have got to explain to
me why it is, why it is, that the majority gets documents and
we don't. Help me with that.
Mr. Meyer. There is no explanation. There is no excuse,
sir. I've only recently learned that that was happening. It was
an error. We will share with you every document we share with
the majority.
Mr. Cummings. How was that an error?
Mr. Meyer. I don't know, sir. I can find out.
Mr. Cummings. I don't like this approach at all. I think
the TSA should provide Democrats with the copies at the same
time it provides them to Republicans. So you agree with that?
Mr. Meyer. I do, sir.
Mr. Cummings. How soon can my staff get the documents that
they may not have?
Mr. Meyer. As soon as we can figure out what they are
missing.
Mr. Cummings. How did you find out, by the way? How did you
find out that we were not getting documents?
Mr. Meyer. I recently learned in conversation that you had
not gotten--I believe there were cases where you had and other
cases where you hadn't. We're working to fix that, if it
already hasn't been fixed.
Mr. Cummings. So you will ensure that, in the future, the
minority will receive all the documents the TSA transmits to
the committee at the same time they are transmitted to the
majority?
Mr. Meyer. Yes, sir.
Mr. Cummings. Will you ensure that they are delivered
directly to the minority's office and not to the majority's
office with the expectation that the majority will have to
provide them to the minority? That creates a delay. Do you
follow me?
Mr. Meyer. Yes.
Mr. Cummings. I trust my friend and his staff, but they get
them one day. Then they may have to copy, do whatever, and I
don't know when we'll get them. We deserve to have them at the
same time.
And let me tell you something: if I was on the other side,
I would be making the same argue.
Hello?
Mr. Meyer. Yes, sir. We'll send them wherever you would
like us to send them.
Mr. Cummings. I'm also somewhat disturbed that TSA has
provided official briefings to the committee's majority staff
that excluded minority staff. What's that about? Did you know
about that?
Mr. Meyer. I don't know if I did, but we will fix it, sir.
Mr. Cummings. So do you agree that the minority staff
should be included in briefings that TSA provides to this
committee?
Mr. Meyer. Yes, sir.
Mr. Cummings. Will you ensure that, in the future, the
minority staff of this committee is invited to briefings that
TSA provides to the committee?
Mr. Meyer. Yes, I will.
Mr. Cummings. You got to tell me how that happens. How does
that happen? Let me tell you something. I have got hardworking
employees. They give their blood, their sweat, their tears, and
when these kinds of things happen, it really bothers everybody.
You know why? Because they can't do their job.
Mr. Meyer. I agree, sir.
Mr. Cummings. So is somebody not telling you something on
your staff?
Mr. Meyer. TSA does not work for me, sir, but I work with
them, and we are going to improve communication to make sure
these kinds of errors don't take place again.
Mr. Cummings. I want to thank you, Mr. Meyer, for your
willingness to be here today to discuss TSA's responsiveness to
the committee's request in documents and for your commitment to
ensuring that TSA responds to this committee's oversight in a
bipartisan way.
And, with that, I yield back.
Chairman Chaffetz. I share and concur with the frustration
that Mr. Cummings is expressing. The minority staff has less
staff than we do in the majority, and certainly Homeland
Security has, by the tens of thousands, in fact, hundreds of
thousands, more people than we do on either of our staffs here
in Congress. And the unprofessional nature in which their
responses have been happening is totally and wholly
unacceptable. And I stand by Mr. Cummings in that.
Mr. Cummings. Mr. Chairman?
Chairman Chaffetz. Yes.
Mr. Cummings. I want to thank you for supporting me on that
because I just think it's so important that we all work
together. We may have our differences of opinion, but we need
to be working from the same information. Thank you.
Chairman Chaffetz. Totally agree. There is a basic
principle in equal access. The information is pivotal to our
doing our jobs, both as Members and the staff. Their job is
hard enough, let alone trying to figure out which documents are
being hid where.
I now recognize the gentleman from Georgia, Mr. Carter, for
5 minutes.
Mr. Carter. Thank you, Mr. Chairman, and thank each of you
for being here.
Mr. Esquea, I've got a question that's kind of unrelated to
the subpoena from February 17. I don't know about you guys; I
don't know what you all do, but I kind of want to base my
opinions on my personal experiences. So I want to share a
personal experience with you that I had with Secretary Burwell
that happened right here in this room in a hearing on March
22--excuse me. The hearing was before March 22. I sent a letter
to her on March 22.
Now, we had hearing here with Secretary Burwell. During
that hearing, I asked her about office-use compounding of
prescription medication. She at that time told me erroneously
that it was allowed. And I knew it was wrong, and I cannot tell
you whether she did it intentionally or not. I know that you
all take oaths, and the only thing we can do on this committee
is to hope that you tell us the truth. But she was absolutely
wrong in what she told me.
So she told me it was allowed, and I knew it wasn't
allowed, and I knew that the Agency was considering what they
were going to do in the near future, and I wanted to have input
on that. That's why I asked her about it.
So she suggested, she said, have your staff send my staff a
letter. In fact, she looked behind her, and her staff said:
Yeah, yeah, do that.
That's when, on March 22, we sent the letter outlining our
concerns about prescription compounding, about compounding for
office use. We sent her that letter on March 22, and I thought
it was a pretty responsible timeframe that we did that and
asked for a response within 10 days.
Well, on April 11, we didn't have any response, so we
called her office: Why haven't you responded?
Well, their response was to my office: FDA, HHS received a
letter and will be sending a response as soon as possible.
Well, okay. Yesterday, guidance was issued for this
particular situation, for office-use compounding. And in that
guidance, it disallowed it.
Now, I still haven't heard. I still haven't had a response.
I still haven't had a response from the office yet on this
particular issue that I wanted to have input. I am a
pharmacist, the only pharmacist in Congress. I felt like, and I
feel like, I should have some input on this. Well I didn't. I
thought after she testified in this committee--and, again, I
can't look into your hearts and tell you: Yeah, you did this
intentionally--or didn't.
I just have to believe that when you take that oath, you're
telling me the truth. She was wrong, and I knew she was wrong,
and yet she said: Let's follow up with staff.
I agreed. And I did that, and yet still the guidance comes
out before she responds to me. Now what am I to think? I sit
here, and I listen to all of my colleagues talking about the
fact that we're lacking communication, and I'm thinking: Yeah,
that's been my experience.
Tell me why I shouldn't feel this way. Tell me why I
shouldn't agree with everything that's been said here by my
colleagues today, that communication is lacking, is suffering.
My question is, is it intentional or unintentional? Because I
know they're right: it is lacking. I have proof. I have
personal proof, personal experience, and that's what I go on.
The question is, is it intentional? Did she intentionally not
respond to my letter until after the guidance was issued?
Mr. Esquea. Congressman, I can assure you that was not
intentional. Or, in fact, I remember the back and forth. I
remember the exchange. I remember the conversation with you,
and it was my understanding, after the hearing, that FDA was
going to reach out to you to have a meeting. If that did not
happen, that would be my fault. I should have followed up with
them, but it was my understanding they had already set up a
meeting to discuss this with you.
Mr. Carter. Well, guess what? It didn't happen. And guess
what? The guidance has already been issued.
Let me tell you what happens. I go home, and I'm the
Congressman. And people ask, my constituents, they want to
know: Why did you all do this? Why did you do that?
And I'm saying: I don't remember doing that.
And then I go and I say: It wasn't us. It was the Agency.
It was the Agency that promulgated these rules, that passed
these rules, that's having such a big impact, but I got to
answer to it. I got to answer to the pharmacists about this. I
did my best to have input before it was issued, but I was
denied that. What do you want me to tell them? You see what a
quandary this puts me in?
Mr. Esquea. Yes, sir.
Mr. Carter. Let me tell you: That is poor, and I don't
appreciate it. Listen, I don't need any help in looking bad. I
can do that all by myself. Tell me.
Mr. Esquea. Congressman, you're right. I apologize. I'm
more than happy to discuss this further. But that was not
intentional. I remember the exchange. I had thought that FDA
was going to follow up with you to have a conversation. If that
did not happen, that's on me. I should have followed up with
them. My apologies to you. I'm more than happy to continue
having this conversation. I can assure you Secretary Burwell
did not do that intentionally. If there is any fault there, it
would be mine.
Mr. Carter. You know, I want to believe you. I really do.
Mr. Chairman.
Mr. Cummings. Would the gentleman yield for just a second?
Mr. Carter. I yield.
Mr. Cummings. First of all, I agree with the gentleman. He
deserves--I remember that. I spend a lot of time on these
issues that he's talking about, these pharmaceutical issues.
But there's one thing, Secretary Burwell, of all the
Secretaries I think, is probably one of the more responsive.
And she is. She has been very responsive. And so, you know, you
cannot, if it's your responsibility to have reminded her, do
whatever, you need to do that. Okay? I mean, I can get--I
usually can get a hold of her when I can get a hold of nobody
else. So I think you're making her look bad, to be frank with
you. All right? I don't usually say those things, but I just
want to be fair to her, too. All right? So I'm hoping,
unfortunately, you've already admitted that you screwed up. We
got to do better than that, though. Because the gentleman--the
questions that he raised are legitimate questions. They are
important questions, and they go to a lot of the things the
American people are most concerned about, and he deserved an
answer. I thank the gentleman for yielding.
Chairman Chaffetz. I thank both gentlemen. I will now
recognize the gentleman from Alabama, Mr. Palmer, for 5
minutes.
Mr. Palmer. Thank you, Mr. Chairman.
Mr. Shelanski, you clerked for the U.S. Court of Appeals
for the D.C. Circuit. You also clerked for the U.S. District
Court in Philadelphia, and later for Justice Scalia, the U.S.
Supreme Court. In your role as a legal clerk, and even in your
role in your private practice, wouldn't it be reasonable to
believe that you are familiar with subpoenas? That's a yes or
no.
Mr. Shelanski. I had never dealt with one prior to this.
Mr. Palmer. You had never dealt with one prior to this. But
you're a lawyer. You understand how it works.
Mr. Shelanski. Yes, sir.
Mr. Palmer. I doubt seriously that Judge Williams or Pollak
or Scalia would have had the patience that this committee has
had in this process. I want to ask you, in the last hearing,
Ms. Fucile said that four document custodians had been
identified to date. Since then, through interviews conducted by
this committee, we have learned that there are at least four
additional OIRA staff that were responsible for the review of
the rule not previously identified by OMB or OIRA. Can you
explain why you only identified half of the custodians to the
committee?
Mr. Shelanski. When we began our document review, began to
produce documents to this committee, we focused initially on
the proposed rule stage, given the request, as we understood
it, and the guidance we received from committee staff. So we
identified the principal custodians that we thought were most
relevant there. As we've moved forward and the committee
expressed interest in the additional custodians, we have
prioritized those and, indeed, produced those documents in our
last production.
Mr. Palmer. Well, should the committee be prepared to learn
of additional names of potential document custodians?
Mr. Shelanski. It is my belief that if there are any
additional custodians, they have had a far lesser role and
would not have been the principal people involved with
reviewing the rule.
Mr. Palmer. Well, how long would it take to ask everyone at
OIRA, did you work on the Waters of the U.S.?
Mr. Shelanski. We have done that. The problem is that----
Mr. Palmer. You did? Well, why did it take over a year to
find out that instead of four, there were eight?
Mr. Shelanski. The initial identification of four was
related to our focus on the period of the proposed rule and
those were the relevant custodians. The additional ones that
have been identified are as we have moved to reviewing
documents in the final rule stage and, again, were people who I
think really had far lesser roles. Sometimes documents are----
Mr. Palmer. Shouldn't you have let the committee decide
whether or not they wanted to have information about everyone?
I mean, everyone is everyone.
Mr. Shelanski. No, and it is our duty to be responsive in
that regard.
Mr. Palmer. But you didn't.
Mr. Shelanski. Well, we've been reviewing----
Mr. Palmer. You've been delaying.
Mr. Shelanski. No, sir. In all sincerity, we have long
acknowledged that our initial response was slow. If you look at
our productions, our last five productions, we have committed
to regular productions, and we have met those productions. We
have also committed to making our productions faster to the
extent we can. Since my last hearing, we have given our largest
production to date. It is my hope we are moving very----
Mr. Palmer. Okay. Let me move to something else. In the
March 3, 2015, hearing before this committee, several members
asked you to produce documents related to OIRA's review of the
rule. Did OMB accompany you to that hearing? Did anyone come
with you?
Mr. Shelanski. I'm sorry. To my March 15 hearing?
Mr. Palmer. The March 3, 2015, hearing.
Mr. Shelanski. March 3, 2015, hearing.
Mr. Palmer. Thirteen months ago.
Mr. Shelanski. Oh, okay. Okay. Sorry about that, 2015. And
the question is, did anyone from OMB accompany me to that
meeting?
Mr. Palmer. Right.
Mr. Shelanski. I generally have some people who come with
me. I don't specifically recall who might have been here at the
time.
Mr. Palmer. Among those who came with you, did you instruct
OIRA staff to initiate a search for the responsive records?
Mr. Shelanski. We, as soon as we received the request for
the documents, we immediately, I personally immediately
instructed OIRA staff to search their records.
Mr. Palmer. Did anyone tell you not to initial a search at
that time?
Mr. Shelanski. No, sir.
Mr. Palmer. Well, I know that the frustration of the
committee is after the hearing, committee staff followed up
with your staff on numerous occasions about this request but
received no response. And I think we would like know and I
think all of us on both sides of the aisle would like to know
why there has been no response.
Mr. Shelanski. I think that there has been constant
engagement between our staff and your staff. And, in
particular, I would point that, since December, we have
produced five regular document productions and are hard at work
on our next one. Our latest one was just 2 weeks ago. We have
prioritized the periods of review and the custodians that the
committee has expressed most interest in. I would also note
that the three most senior officials at OIRA have voluntarily
agreed to transcribed interviews, two of which have already
occurred, including the person most responsible for the review
of both the proposed and final rule, and that my own
transcribed interview is being scheduled for a time, I think,
fairly soon to come.
Mr. Palmer. Well, here's my problem with this, and I think
the problem that a lot of us on the committee are having, is
that there seems to be a pattern here of running out the clock
and, again, going back to your experience at OIRA, even though
you never participated, been involved with a subpoena before,
as a lawyer, you understand that a request for documents is
something that most people, judges, lawyers, expect to be fully
complied with, and it's throughout the administration. We have
seen this time and time again. And I just, frankly, have a hard
time believing there's been a good-faith effort to produce the
documents in a timely manner.
Thank you, Mr. Chairman. I yield back.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from Wisconsin, Mr.
Grothman, for 5 minutes.
Mr. Grothman. Thank you. I have another question here for
Mr. Meyer and this goes to another thing where just, you know,
the response of your agency seemed a little bit unusual. You
mentioned during your testimony a situation in which Homeland
Security flew an immigration witness all the way from Texas to
Washington to give the committee a day-long interview. And at
the beginning of the interview, committee staff were informed
that the witness would not be able to answer questions related
to the vulnerabilities of the EB-5 investor program. The
working group was clearly identified in the committee's letters
as a central--as a major reason why we wanted to talk to this
guy. Can you give us what was the basis for refusing to allow
the witness to speak about his staff's involvement in the
interagency EB-5 working group?
Mr. Meyer. Okay. So, just to be clear, almost the entire
day was about the vulnerabilities in the EB-5 program. But
you're inquiring about the interagency working group?
Mr. Grothman. Well, we were informed that the witness would
not be allowed to answer committee's questions regarding the
working group.
Mr. Meyer. Right. So the process, the interagency working
group process is a process, and this goes back probably
decades. It's a longstanding administration position,
Democratic, Republican, not to discuss interagency processes
like that one. And so what we suggested, I believe what our
attorney suggested, is that we sit down with the staff and try
to get the information to the staff that they need in a
different way.
Mr. Grothman. Was productive? Why wouldn't you have told
the committee upfront before you flew this person all the way
from Texas to Washington that given, I think, the working group
is clearly one of the reasons why they wanted to talk to the
witness, why wouldn't you have told them upfront that we're not
going to talk about that?
Mr. Meyer. I believe in conversations with the staff
leading up to that, we did make clear that there would be some
areas that the witness would not be able to speak about. But,
you know, the interview went all day, and so they had a
productive day.
Mr. Grothman. I guess that depends on who you talk to.
Homeland Security has produced so far only one 8-page memo
to the committee on this topic. Can you know let us know when
Homeland Security will produce the rest of the documents that
we asked for in January?
Mr. Meyer. We're going through those requests right now and
trying to get more to the committee. A large part of what was
requested in that letter were for drafts, and again, going back
decades, if not centuries, it's not the policy of the executive
branch to share deliberative material like that with the
legislative branch. But you have, the committee does have the
final document, the signed document, and other final documents.
Mr. Grothman. Okay, well, we have been waiting like 3
months. Can you let us know about when you think we're going to
get the documents we have been asking for?
Mr. Meyer. I'll have to go back and talk to ICE about when
we'll be able to get more documents.
Mr. Grothman. Okay. Can you let us know soon? Thank you.
I'll yield the remainder of my time to the chairman.
Chairman Chaffetz. Thank you.
I'll now recognize myself. Mr. Meyer, a series of questions
for you. Are you aware of regular meetings at the White House
involving legislative affairs officials from various agencies?
Mr. Meyer. Yes, I believe those do occur.
Chairman Chaffetz. Have you ever attended these meetings?
Mr. Meyer. Legislative Affairs officials. I don't go to the
general OLA type meetings because I'm in the General Counsel's
Office.
Chairman Chaffetz. Do you know how often the White House
holds these meetings?
Mr. Meyer. I do not.
Chairman Chaffetz. Do you know who coordinates these
meetings at the White House?
Mr. Meyer. I do not.
Chairman Chaffetz. Do you know what the purpose is?
Mr. Meyer. I assume they discuss legislative affairs, but
beyond that, no.
Chairman Chaffetz. Do you coordinate requests from Congress
with the White House?
Mr. Meyer. As with any agency, we will coordinate with the
White House when they have equities in a request.
Chairman Chaffetz. What would they not have equities in?
Mr. Meyer. You would have to ask them that.
Chairman Chaffetz. I'm asking, what equities does the White
House have at Homeland Security?
Mr. Meyer. Well, for example, we have requests from you
relating to the Vice President and his residence at the Vice
President's Office, and the White House has equities in that.
Chairman Chaffetz. So what role does the White House play
in providing guidance on document production?
Mr. Meyer. As with any agency, be it DOJ, HHS, what have
you, we will coordinate with them when they have equities, and
we will consult with them, and they'll be part of our
consultative process in deciding how to go about responding.
Chairman Chaffetz. So, outside of the legislative affairs,
are there similar meetings at the White House for Department
counsel, and have you ever attended any of those meetings?
Mr. Meyer. I have attended on occasion meetings.
Chairman Chaffetz. How often do those happen?
Mr. Meyer. I haven't been to the White House for a meeting
with White House counsel in quite some time. I would say, on
average, a few times a year, I would go over there.
Chairman Chaffetz. But how often do the meetings happen?
Even though you may have gone there only a few times, how often
do the meetings happen?
Mr. Meyer. Oh, I don't think there's a regular meeting of
counsel in the way there is with Legislative Affairs.
Chairman Chaffetz. Last Friday, the committee conducted a
transcribed interview of a TSA witness whose testimony the
committee requested in January. You're familiar with this
interview?
Mr. Meyer. Yes, I am.
Chairman Chaffetz. When the committee attorneys asked the
witness whether they had been discouraged from speaking with
the committee, both the agency and the Department attorney
repeatedly refused to allow the witness to answer the question,
even going so far as to interrupt when the witness appeared
willing to answer. How does the Department justify this?
Mr. Meyer. As I told Mr. Mica, the questions were
requesting him to discuss what attorneys advised him. That's
subject to the attorney-client privilege, so our attorneys
asked him not to respond and suggested that we discuss it in a
different setting and try to get the committee the information
they want. If you'd like, I can answer the broader question
that I think they were asking right now.
Chairman Chaffetz. No. I want to get specific to that so-
called attorney-client privilege. It's the practice of the
House of Representatives to leave to the congressional
committee the determination of whether to recognize claims of
attorney-client privilege or attorney work product. In this
case, there is not a compelling reason to recognize the
privilege.
Further, I would go on to say I believe you're intimidating
somebody. I believe it's intimidating to have attorneys saying:
Don't answer that question.
I'll go back to my original--or the question I asked you
earlier. What is it that you think that we shouldn't be able to
see here in Congress?
Mr. Meyer. Well, to this point, it's a longstanding
position of the executive branch, going back probably to before
I was born, that we will not share attorney-client
communications with the legislative branch. I recognize that
the legislative branch takes a different position. That's a
longstanding dispute between the branches.
Chairman Chaffetz. What other guidance and directives did
you give to the witness prior to them coming and testifying
before Congress?
Mr. Meyer. I met with the witness once. That's the only
time I've ever met him. And we discussed what to expect in a
transcribed interview.
Chairman Chaffetz. How long did you meet with him?
Mr. Meyer. I don't recall. I believe it was an hour, an
hour and a half.
Chairman Chaffetz. So you spent an hour to an hour and a
half prior to testifying before Congress. What direction or
directives did you give him?
Mr. Meyer. I'm not going to discuss attorney-client advice.
Chairman Chaffetz. The attorney-client privilege, whether
you recognize it or not, belongs to the witness, not to the
Department. Correct?
Mr. Meyer. No. We were representing him in his official
capacity. We offered him the option of having personal counsel.
He chose to use agency counsel, so my client is the Agency.
Chairman Chaffetz. Was he pleading the Fifth?
Mr. Meyer. I was not in the room. I don't believe he
pleaded the Fifth at the transcribed interview.
Chairman Chaffetz. Did anybody in the Department--did the
Department attorney contact you or anyone else in your office
during the interview to seek guidance on this issue?
Mr. Meyer. I don't recall. They may have.
Chairman Chaffetz. What was so invasive about that question
or questions that you felt it imperative to make sure that
Congress never heard the answer?
Mr. Meyer. I think the attorney-client privilege is well
enshrined in the history of the United States and going back to
English common law and generally respected by the courts and
the law.
Chairman Chaffetz. Are you familiar with the anti-gag
rider?
Mr. Meyer. I'm not, sir.
Chairman Chaffetz. You're not?
Mr. Meyer. No.
Chairman Chaffetz. You're not familiar with the law that
says you cannot--you're not familiar with that----
Mr. Meyer. Are you speaking about the law that was the
subject----
Chairman Chaffetz. The rider states that no appropriations
are available to pay the salary of any Federal employee who,
quote, ``prohibits or prevents or attempts or threatens to
prohibit or prevent,'' end quote, any other Federal employee
from, quote, ``having any direct oral or written
communication,'' end quote, with Congress.
Mr. Meyer. Yes. Let me correct. I was not familiar with
that name for it, but I am aware of that legislation.
Chairman Chaffetz. The Lloyd-La Follette Act of 1912.
Mr. Meyer. I did not know it was from 1912 or by Mr. La
Follette, but----
Chairman Chaffetz. I'm assuming that was from before you
were born.
Mr. Meyer. I believe it is.
Chairman Chaffetz. And that was what you stated, since
before you were born. We will further explore this, but I think
you're intimidating the witness. I think you're providing
counsel that is inconsistent with the law, and I think, as
such, anybody who is providing that information should have
their pay duly docked, and the government should recover that.
Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Meyer, do you think that you or your office was
intimidating anyone?
Mr. Meyer. Not at all, sir.
Mr. Cummings. And I take it that you--is this a standard
practice before a witness comes up, to talk to them and----
Mr. Meyer. Yes. And if I may, I might add also that he
requested that agency counsel be there. If he were intimidated,
I don't think he would have done so.
Mr. Cummings. Did you get any indication from--did you see
anything that would lead you to believe that he was
intimidated?
Mr. Meyer. Nothing at all, sir.
Mr. Cummings. I don't have anything else.
Chairman Chaffetz. Just the last point there. I wasn't in
the room, but what I've been told by staff is he was willing to
answer the question. He started to answer the question when
counsel jumped in and insisted that he not answer the question.
That's what I have a problem with.
Mr. Cummings and I, on February 18 of 2015, Mr. Meyer,
2015, more than a year ago, jointly sent a letter, along with
Mr. DeSantis and Mr. Lynch, requesting some information. There
were 16 issues, 16 topics. There are still topics that we have
had no production on, literally not a document on. We further
have issued subpoenas, but why is it that we can't get a single
document out of Homeland Security regarding Secret Service, the
April 2012 Cartagena incident? Why aren't you providing that
information to us?
Mr. Meyer. So we have provided quite a good number of
documents relating to the Cartagena incident. We have provided
to you every--I believe the Secret Service has given you every
document that was previously made available to Congress,
because, as you know, there were prior investigations of that--
I believe in the House, but certainly in the Senate. So you
have those.
I do recognize--I understand from the Secret Service that
they have not yet begun production on this additional request,
which asks for all documents, communications, emails, et
cetera, I believe, regarding the Cartagena incident. As you
know, that's a very broad request. It requires a very broad
search, which I'm told is undertaken----
Chairman Chaffetz. At what point do we get frustrated
enough--we issued you a subpoena. Was that not good enough?
Item 15 is where we have had no response I believe. Why should
we not hold you in contempt?
Mr. Meyer. Sir, we have produced----
Chairman Chaffetz. Nothing under item No. 15, not one
document.
Mr. Meyer. Yes, I confirmed that for you. We have produced
about 17 times in response to the letter in the subpoena. In
addition, your staff requested that we prioritize a different
item over that one, and so we have been producing on that.
That's the February 10, 2016, letter.
Chairman Chaffetz. You know, our patience is pretty well
exhausted on this, and you leave us with no other remedy. You
leave us with no other choice. The three of you are here for a
reason. You earned it. You earned it because you're not being
responsive to duly issued subpoenas. I do hope--I really do
hope at some point you--well, I don't want to make it too
personal, but I got to tell you, you have a fiduciary
responsibility, and our checks and balances, our constitutional
form of government only works if we have good, honest, decent
people who actually comply with the law. And when we issue a
subpoena, it's the law. You can come up with all the excuses
and all the things you want to hide out there, but when we
issue a subpoena from the Congress, it's not optional. You have
to provide it, not to your counsel, not to Legislative Affairs,
but to the United States Congress. That's how it works.
Mr. Shelanski, do you believe that Congress has the
authority to investigate and legislate regarding the Waters of
the United States?
Mr. Shelanski. Yes, sir.
Chairman Chaffetz. And you believe that the concerns or
questions we have about WOTUS and OIRA are within the
committee's legitimate areas of interest. Correct?
Mr. Shelanski. Yes, sir.
Chairman Chaffetz. That we may need to consider some
legislative action, and the documents under subpoena might
assist us in that effort. Correct?
Mr. Shelanski. I don't understand the full purpose, but,
yes, I would assume that to be true.
Chairman Chaffetz. Is it true that there are documents that
your search turned up that are currently sitting with your
general counsel but have not been given to Congress?
Mr. Shelanski. Our review is ongoing. Yes.
Chairman Chaffetz. And you have no idea when we'll receive
those documents?
Mr. Shelanski. I will go back and work with them to make
sure that our production is as fast as possible. We have been
trying to produce even more quickly with each production.
Chairman Chaffetz. And how many total documents have you
turned over to the Office of General Counsel that have not been
given to the Congress?
Mr. Shelanski. I don't know the answer to that question,
sir.
Chairman Chaffetz. We issued that in your letter. We put it
in the March 18. This is like a month ago. We sent this to you
to be prepared to answer that question.
Mr. Shelanski. Because the search required by the subpoena
is so broad----
Chairman Chaffetz. It's a simple exercise to go in and look
at what is sitting in the General Counsel's Office that you
haven't yet given to Congress. That is not a difficult
mathematical equation. You received the invitation to testify
specifically on this information more than a month ago, and for
your unwillingness to provide that information under oath today
is just without excuse.
Mr. Shelanski. Mr. Chaffetz, it's very difficult to
understand what the full universe of documents might be for
such a broad and long subpoena going back 9 years. I don't want
to give an incorrect answer, and so----
Chairman Chaffetz. We gave you a month to come up with it.
You can't even tell me how many are sitting in there.
Mr. Shelanski. That is correct because a lot of the
documents are unresponsive. We're continuing to review, and
it's hard to know what the----
Chairman Chaffetz. You can err on the side of giving us too
much information, but what you're choosing to do is to hide the
documents from the United States Congress. That's my opinion.
We have well established this through----
Mr. Shelanski. We aren't hiding documents.
Chairman Chaffetz. We have got to conclude this at some
point.
Mr. Shelanski. Our production is ongoing, and we hope to
conclude as quickly as we can. We are hiding nothing.
Chairman Chaffetz. For a subpoena--the document requests
have been going on for a year. We have had enough.
The last thing from me. Mr. Meyer, why do you give us
documents with these redactions? Why? It takes longer than just
producing them. They're under subpoena from the United States
Congress. What justification do you have for redacting these
documents?
Mr. Meyer. I can't speak to that specific document that
you're holding. I'd have to look at it, but we have redacted
documents for any number of reasons, for national security
reasons, deliberative communications, documents that are
protected by law, information that may constitute an
unwarranted invasion, an unnecessary invasion of personal
privacy, those sorts of things.
Chairman Chaffetz. Let me give you a couple of--we have
information that the Secret Service personnel, some of them,
were inappropriately using funds that were allocated for
confidential informants, that they were using those for their
own retirement party and to pay off credit cards. We are doing
a legitimate investigation here. It's something of critical
importance. These people stand with a gun by the President of
the United States. You redact out the date of the incident, the
location of the incident, the lead inspector of the incident,
the reviewing supervisor of the incident, the date the case
went to the administrative review, the destroy date, the last
update by, the names of the people that are involved in this.
So what justification do you have? What is the national
security imperative that says you can't give us, the Congress,
the date of the incident?
Mr. Meyer. So I don't believe I've ever seen these specific
documents.
Chairman Chaffetz. How can you not have seen them?
Mr. Meyer. Because I don't work at the Secret Service, Mr.
Chairman, but I am happy to review them and get you an answer.
Chairman Chaffetz. Homeland Security insists that we work
through Homeland Security on Secret Service issues. They're
part of Homeland Security. Correct?
Mr. Meyer. Absolutely. But I will freely admit I have not
read all 13,000 pages that they have produced to you.
Chairman Chaffetz. Well, I am asking you specifically about
these incident reports. Whose responsibility, when I issue a
subpoena, whose responsibility is it to provide full and
complete information?
Mr. Meyer. The Department's.
Chairman Chaffetz. Who specifically? The Secretary?
Correct? Who does he hire to do that?
Mr. Meyer. There are any number of people who work on that
at the Department. One person alone could not produce all of
these documents, sir.
Chairman Chaffetz. So who specifically in Homeland Security
on your team reviews the Secret Service redactions? Who does
that?
Mr. Meyer. So it depends on the matter, on the documents,
on the issues. It could be----
Chairman Chaffetz. Give me some names. I want to know who
they are.
Mr. Meyer. There are attorneys at the office.
Chairman Chaffetz. I want to know who they are. I want
their names.
Mr. Meyer. There are employees of the Office of Legislative
Affairs. There are employees of the Office of Congressional
Relations.
Chairman Chaffetz. I'm asking you for specific names. I
know what their responsibilities are. When will you provide me
those names?
Mr. Meyer. I do not want--if you want to blame someone,
blame me, sir. I'm not going to blame career----
Chairman Chaffetz. You say you're not involved.
Mr. Meyer. They work for me. The attorneys at the Office of
General Counsel----
Chairman Chaffetz. I'm asking you a simple question, Mr.
Meyer. When will you provide this committee the names of people
who were involved in creating the redactions on the Secret
Service documents that were under subpoena?
Mr. Meyer. I certainly couldn't tell you that here and now.
Chairman Chaffetz. I'm asking you when.
Mr. Meyer. I will get back to you on that.
Chairman Chaffetz. I'm asking you when.
Mr. Meyer. I don't know, sir.
Chairman Chaffetz. I'm asking you to come up with a date to
tell me who reviews the Secret Service redactions. That's not a
difficult request.
Mr. Meyer. I don't know the names of all the people who
review those.
Chairman Chaffetz. And I'm giving you time to come up with
those. Seriously. Come on. You watched this YouTube video. I
mean, come on. This is what we're up against. Give me a date, a
reasonable date, to come up with the names of people who were
involved in creating the redactions on the Secret Service
documents?
Mr. Meyer. I imagine I can get that to you sometime in the
next couple of weeks.
Chairman Chaffetz. Come up with an actual specific date.
How about May 5? Is that fair?
Mr. Meyer. I am not going to promise anything because I'm
not in the business of, under oath, making predictions that I
cannot be certain I will keep, but I will do everything I can
to get you an answer by May 5.
Chairman Chaffetz. This is the game that we play, and it's
what makes people sick and disgusted with their government. It
makes them sick and disgusted with these agencies and the
bureaucracy that won't be responsive to the American people.
We're trying to do a legitimate oversight of the Secret
Service. You've got people that are misusing funds. We have
established that, and you're playing games with us, with the
very people that are holding these guns near the President of
the United States, his daughters, his wife, and you're playing
these kind of games with us. I don't know how you justify it. I
don't know how you justify your existence. When the Congress
introduces a subpoena, it is the law of the land that you
provide those documents to the United States Congress, not go
back and start using your Wite-Out and making sure that we
don't see that information. This is one of the most frustrating
things we do in the United States Congress, and I better stop
saying any more before I say something that goes too far.
Mr. Cummings, do you have any other?
Mr. Cummings. Yes. Can you all understand the frustration
that we have?
Mr. Shelanski. Yes, sir.
Mr. Cummings. But you can't do anything about it, you don't
think?
Mr. Shelanski. We have been trying to do something about
it. We have been trying to work ever faster and ever better
with the committee, and we pledge to continue to do so so that
we may, without running out the clock, give the committee what
it needs for its oversight functions.
Mr. Esquea. Mr. Cummings, we will continue to work to
understand and accommodate the interests of the committee.
Mr. Cummings. Mr. Meyer?
Mr. Meyer. Yes, we will continue to try to improve. As I
say, we have improved a lot over the last couple years in the
face of increased demands, but we're not going to rest on that.
We're going to continue to try to improve.
Mr. Cummings. Gentlemen, we have to do better. We got to do
better. I can understand the chairman's frustration. As I said,
there has to be a balance. We have to be able to get the
documents to do our jobs.
At the same time, we take in consideration the problems
that you all may have, the various privileges that you may be
asserting, but I got to tell you that this is not balancing
out. It sounds to me like there's some rope-a-doping here going
on. I'm just telling you, and I think we can do better. I
really do. That's just my opinion, and I would hope that you
would go back to your agencies and try to speed up this
process. Thank you.
Chairman Chaffetz. The committee stands adjourned.
[Whereupon, at 12:41 p.m., the committee was adjourned.]
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