Letter from Reps. Sensenbrenner and Miller to Attorney General Gonzales Regarding NASA General Counsel Wholley

June 14, 2007
Alberto Gonzales, Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Dear Mr. Gonzales:

By this letter, we are referring Michael Wholley, the general counsel of the National Aeronautics and Space Administration (NASA), to the Department of Justice for investigation into and possible prosecution for obstruction of justice and destruction of government records under 18 U.S.C. § 1505, 18 U.S.C. § 1512(c) and 18 § U.S.C. 2071.

On May 24, 2007, Mr. Wholley testified before the Subcommittee on Investigations and Oversight of the House Science and Technology Committee that he had personally destroyed the video records of an April 10 agency meeting between NASA Administrator Michael Griffin and the staff of the Office of the Inspector General (OIG) because:

[I]f they were retained and filed, they could become [government] records by virtue of that retention. From my perspective . . . I did not believe it wise to have these in any way become records, subject to release under FOIA [Freedom of Information Act]. . . . I personally made the decision to destroy them, and I did so by breaking them into pieces and throwing them in the trash.

The meeting in question was a mandatory meeting between Mr. Griffin and the staff of NASA’s OIG to discuss the corrective actions that Mr. Griffin was recommending for Robert Cobb, NASA’s inspector general. The President’s Council on Integrity and Efficiency (PCIE) determined in January of 2007 that Mr. Cobb had abused his authority as an inspector general and lacked an appearance of independence from NASA officials. Clay Johnson, deputy director of the Office of Management and Budget (OMB) and PCIE chairman, forwarded the report to Mr. Griffin to take corrective steps. Mr. Griffin had included the meeting in his “Letter of Instruction” to Mr. Cobb.

Mr. Wholley destroyed the CDs with full knowledge that the House Science and Technology Committee and the Senate Committee on Commerce, Science and Transportation were examining all aspects of the investigation into allegations against Mr. Cobb and NASA’s response to that investigation. Mr. Wholley also knew that a Congressional hearing was possible. Chairman Miller had sent a letter to Mr. Griffin requesting a copy of the PCIE report on February 23, 2007, and he received a reply on February 28. On April 2, after receiving the report, Chairman Miller and Chairman Bill Nelson of the Senate Subcommittee on Space, Aeronautics and Related Matters wrote President Bush asking for Mr. Cobb’s removal. The letter was widely publicized. On April 3, Chairmen Nelson and Miller and Science and Technology Committee Chairman Bart Gordon wrote to Clay Johnson, the head of the PCIE, and said they were preparing for hearings. On April 4, Mr. Wholley wrote an email titled, “Hearings??”, to Jeff Rosen, the general counsel of OMB, discussing the need for a meeting to “soberly consider the approach to be taken” at a hearing. “I am sure that you can appreciate that I am not particularly keen on seeing two entities of the Executive Branch at odds in a hearing before the Legislative Branch,” Mr. Wholley wrote.

Mr. Wholley also knew the meeting would raise questions because of the appearance that the Administrator was disciplining and controlling his inspector general. On March 14, Mr. Wholley raised those concerns with Paul Morrell, Mr. Griffin’s chief of staff:

Will Moose [Mr. Cobb] be there? Will Mike’s [Mr. Griffin’s] words look/sound like he has taken Moose to the woodshed, thereby lending more credibility to both the complaints and the complainers, as well as the ROI [Record of Investigation] than they deserve? If Mike, on the other hand, goes too far (and this is an “eye of the beholder” issue) in his comments in support of Moose, then he had opened himself up to criticism and as become the focus of the controversy.

The meeting was videotaped at NASA headquarters, on the request of NASA’s public affairs office, and in two field offices, so that absent employees could view it later. As best as our staffs could reconstruct it from witnesses, written reports of the meeting, and Mr. Griffin’s talking points, Mr. Griffin used the meeting to defend Mr. Cobb. He said Mr. Cobb had not abused the authority of his office, and that there were no legal or ethical issues. He also informed the staff that he was not interested in operational audits or reports that questioned NASA’s engineering decisions. He said that the OIG’s technical staff did not have the expertise to audit this area. He implied that he was only interested in recommendations that saved at least $1 billion. Many OIG staff members viewed these statements as attempts to influence their work.

The content of this meeting, Mr. Wholley’s interest in making sure that the actions taken by the PCIE and NASA were presented in a controlled manner to Congressional committees, and his own statements as to why he destroyed the CDs, make it highly probable that he intended to obstruct both our investigation and our hearing, which was held on Thursday, June 7, 2007. Mr. Wholley holds an office of great legal and ethical responsibility in the federal government. More than 160 attorneys work under him, of which 35 are at NASA headquarters. Mr. Wholley admitted that he was not an expert in government records law, and that there were such experts in his office. Nonetheless, he did not consult any other attorneys or experts before he destroyed the tapes because “it was a very sensitive matter.”

Mr. Wholley’s actions resulted in the expenditure of countless staff hours by the Committees, made in an effort to recreate the recorded meeting from eyewitness testimony. Instead of viewing the event firsthand, the Committees had to settle for a collage of impressions, recreated from various perspectives and talking points. We will never know how this ersatz evidence affected our investigations or the public’s confidence in NASA’s OIG.

Mr. Wholley’s interference with our investigation may have violated 18 U.S.C. § 1512(c), which prohibits the corrupt destruction of records or other objects with the intent to impair their availability at an official proceeding. United States v. Poindexter, determined that the related statute, 18 U.S.C. § 1505, protected preliminary and informal Congressional inquiries against obstruction as well as formal proceedings. United States. v. Poindexter, 725 F. Supp. 13, 23 (D.D.C. 1989); United States v. North, 708 F. Supp. 385, 386 (D.D.C. 1988); see also United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970); Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966). Mr. Wholley testified that he knowingly destroyed agency documents to keep others from learning of their contents when he was fully aware that this Committee was considering a hearing that would include the circumstances and contents of that meeting.

Mr. Wholley’s actions may have also violated 18 U.S.C. § 2071, which prohibits anyone with custody of a Federal record from destroying that record. The DVDs should be considered Federal records. It is a basic rule of copyright law that work created by an employee within the scope of employment is the property of the employer. See, e.g., Scherr v. Universal March Match Corp., 417 F.2d 497, 500 (2d Cir. 1969), cert. denied, 397 U.S. 936 (1970). This principle similarly applies within the Federal Government. See United States v. First Trust Company of St. Paul, 251 F.2d 686, 690 (8th Cir. 1958) (“If . . . notes are the written records of a government officer executed in the discharge of his official duties, they are public documents and ownership is in the United States.”). In short, records are government property if they are produced on government time with government resources. Pfeiffer v. Central Intelligence Agency, 60 F.3d 861 (D.C. Cir. 1995); Reporters Committee for Freedom of the Press v. Vance, 442 F. Supp. 383 (1977). In the present case, the DVDs were created at the request of a NASA employee, by NASA employees and contractors, with NASA resources, and for the purpose of NASA’s business. As such, they should be considered government property.

Furthermore, in Poindexter, the court determined that “custody” under § 2071 should be broadly interpreted:

There is no warrant for supposing, and no legislative history suggesting, that Congress meant to subject to punishment under section 2071 only those who are the custodians of records in the technical sense, such as clerks or librarians, but to permit others working in a government agency who have access to sensitive documents to destroy or alter them with impunity. The obvious purpose of the statute is to prohibit the impairment of sensitive government documents by those officials who have access and control over them, and no court has ever held to the contrary.

Poindexter, 725 F. Supp. at 20; see also Coplon, 191 F.2d at 749 (finding custody under section 2071 even though defendant had been specifically denied routine access to relevant documents). So it was in the present case. Wholley’s knowing destruction of sensitive records in his possession was a great detriment to our Committees’ investigations, and we respectfully request that you initiate an investigation into his conduct.

We have included as attachments all documents referred to in this letter. If your staff has any questions or need additional information, please have them contact Edith Holleman, majority staff counsel, Subcommittee on Investigations and Oversight, at (202) 225-8459, or Bart Forsyth, minority staff counsel, Subcommittee on Investigations and Oversight at (202) 225-6470. Thank your for your attention to this matter. Sincerely,

BRAD MILLER Chairman Subcommittee on Investigations and Oversight

F. JAMES SENSENBRENNER, JR. Ranking Member Subcommittee on Investigations and Oversight