April 1, 2019 Mr. Pat Cipollone Counsel to the President The White House 1600 Pennsylvania Ave, N.W. Washington, D.C. 20002 Dear Mr. Cipollone: On March 1, 2019, I wrote to you in order to request—for a “final time”—that the White House cooperate voluntarily with the Committee’s investigation of security clearance processes at the White House in response to grave breaches of national security at the highest levels of the Trump Administration. My letter followed multiple previous requests for documents and witnesses, which included detailed explanations of the congressional precedents, investigative bases, and legislative purposes of the Committee’s review. In response, the White House has refused to produce a single piece of paper or a single requested witness. Instead, you claim to have “accommodated” the Committee’s interests by providing a 90-minute briefing on general policy matters and an in camera review of a handful of guidance documents. You have refused to provide any information about the specific individuals the Committee is investigating, the specific instances of abuse, wrongdoing, or mistakes we have identified, or the problematic practices of the White House Security Office over the past two years. The Committee has given the White House every possible opportunity to cooperate with this investigation, but you have declined. Your actions are now preventing the Committee from obtaining the information it needs to fulfill its Constitutional responsibilities. Despite White House efforts to obstruct the Committee’s investigation, we have not been idle. Although much of our work over the past several months has been out of public view, the Committee has been active in collecting information from multiple additional sources. We have now conducted a detailed, on-the-record interview with a whistleblower who currently works at the White House. Her name is Tricia Newbold, and she has come forward at great personal risk to warn Congress—and the nation—about the grave security risks she has been witnessing first-hand over the past two years. As she told us: Mr. Pat Cipollone Page 2 I would not be doing a service to myself, my country, or my children if I sat back knowing that the issues that we have could impact national security. This whistleblower, who currently serves as the Adjudications Manager in the Personnel Security Office, has worked in the White House under Republican and Democratic Administrations for the past 18 years. She handles security clearance determinations for some of the most senior officials in the White House and throughout the Executive Office of the President. She has informed the Committee that during the Trump Administration, she and other career officials adjudicated denials of dozens of applications for security clearances that were later overturned. As a result, she warned that security clearance applications for White House officials “were not always adjudicated in the best interest of national security.” She also reported to the Committee that she has been targeted for retaliation after declining to grant security clearances based on longstanding national security protocols. She stated: “I’m terrified of going back. I know that this will not be perceived in favor of my intentions, which is to bring back the integrity of the office.” Yet, despite these risks, she has agreed to identify herself publicly at this time because she strongly believes that Congress must intervene immediately to safeguard our national security. She implored the Committee to act now, warning that “this is my last hope to really bring the integrity back into our office.” In light of the grave reports from this whistleblower—and the ongoing refusal of the White House to provide the information we need to conduct our investigation—the Committee now plans to proceed with compulsory process and begin authorizing subpoenas, starting at tomorrow’s business meeting. Our first subpoena will be for a deposition of Carl Kline, who served as the Personnel Security Director at the White House during the first two years of the Trump Administration and who now works at the Department of Defense. Mr. Kline did not respond to letters from the Committee on February 11, 2019, and March 18, 2019, asking him to participate in a voluntary interview. The Department of Defense informed the Committee that it is deferring to your office regarding Mr. Kline’s testimony, but you have repeatedly refused to schedule his interview. The Committee will depose Mr. Kline about the security clearance practices in place when he was at the White House, the treatment of specific security clearance adjudications during his tenure, and his interactions with the whistleblower. There is clear precedent for Mr. Kline to testify before the Committee. In 2007, the George W. Bush White House made available James Knodell, the Director of the White House Security Office, for public testimony before our Committee. He testified that, after the leak of covert CIA agent Valerie Plame’s identity, his office failed to conduct the required security Mr. Pat Cipollone Page 3 investigation and allowed Deputy Chief of Staff Karl Rove and Chief of Staff to the Vice President Scooter Libby to maintain their security clearances despite their roles in the leak.1 Following Mr. Kline’s deposition, the Committee will proceed to interview other current and former White House employees, including the current Chief Security Officer, former Chief Security Officer Cory Louie, Chief Operating Officer Samuel Price, former Deputy Chief of Staff Joseph Hagin, and Deputy Director of Administration William Hughes. The Committee will proceed with additional witnesses thereafter. I hope the White House will begin cooperating voluntarily with these requests and that additional subpoenas will not be necessary. The Committee remains open to the possibility of foregoing interviews with certain White House officials if you produce documents the Committee is seeking. To facilitate this process, the Committee is prioritizing the production of the following subset of documents from our previous requests: • A document created by Ms. Newbold listing approximately 25 individuals who were granted security clearances or eligibility to access national security information despite recommendations to deny their applications; • All White House security clearance policy documents pre-dating June 21, 2018; • Data from the Executive Office of the President People Information Center (EPIC) database for John Bolton, Michael Flynn, Sebastian Gorka, Jared Kushner, John McEntee, K.T. McFarland, Robert Porter, Robin Townley, and Ivanka Trump, including audit log data; • Adjudication summaries for John Bolton, Michael Flynn, Sebastian Gorka, Jared Kushner, John McEntee, K.T. McFarland, Robert Porter, Robin Townley, and Ivanka Trump; and • Post-decisional documents memorializing the circumstances under which security clearances were granted or denied to, or suspended or revoked from, John Bolton, Michael Flynn, Sebastian Gorka, Jared Kushner, John McEntee, K.T. McFarland, Robert Porter, Robin Townley and Ivanka Trump, including any documents, correspondence, or memoranda drafted by or for former White House Personnel Security Director Carl Kline, White House Chief of Staff John Kelly, Deputy Chief of Staff Joe Hagin, White House Chief of Staff Reince Priebus, or White House Counsel Don McGahn. 1 Committee on Oversight and Government Reform, Hearing on White House Procedures for Safeguarding Classified Information, 110th Cong. (Mar. 16, 2007) (online at www.govinfo.gov/content/pkg/CHRG110hhrg38579/pdf/CHRG-110hhrg38579.pdf). Mr. Pat Cipollone Page 4 Please advise the Committee by April 5, 2019, whether the White House will produce these additional witnesses and documents voluntarily. The Committee respects the President’s authority to grant security clearances. However, the White House must respect Congress’ co-equal and independent authority to investigate who has been given access to our nation’s secrets, how they obtained that access, the extent to which national security has been compromised, and whether Congress should amend current laws to improve national security and enhance transparency over these decisions. Finally, the Committee requests that your office personally ensure that all White House employees are fully apprised of their responsibilities under the laws and regulations regarding the protection of whistleblowers who report waste, fraud, or abuse, as well as the rights of these whistleblowers not to have adverse personnel actions taken against them. Any additional retaliatory actions taken by White House employees against this particular whistleblower—or any other whistleblowers with whom the Committee may be in contact—may constitute violations of law that carry significant penalties. 2 Enclosed with this letter is a memorandum sent to Committee Members describing the specific concerns raised by this whistleblower, as well as additional information about Congress’ authority to conduct investigations and legislate on these matters. Thank you for your prompt attention to this request. Sincerely, Elijah E. Cummings Chairman cc: The Honorable Jim Jordan, Ranking Member 2 See, e.g., Whistleblower Protection Act, 5 U.S.C. § 2302; 5 U.S.C. §7211; P.L. 115-31, §713. ATTACHMENT Congressional Authority to Investigate and Legislate in the Oversight and Reform Committee Security Clearance Investigation The White House has sent multiple letters to the Committee on Oversight and Reform claiming that the Committee lacks the authority to investigate matters relating to White House security clearances because “the Constitution vests the President with plenary authority over national security information.” 1 This contention is not supported by the law. As the Supreme Court has made clear, Congress has broad authority to inquire about a wide array of topics that could be the subject of legislation and appropriations: The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and farreaching [sic] as the potential power to enact and appropriate under the Constitution. 2 This broad investigative authority includes multiple areas relating to this investigation in which Congress has legislated, and may legislate in the future, including: (1) national security; (2) corruption, misconduct, and abuse; and (3) whistleblower protections. National Security Contrary to White House characterizations, the Supreme Court has held that “Nationalsecurity policy is the prerogative of the Congress and President.” 3 The White House claim that the Executive Branch has exclusive domain over national security matters “rests on a theory of separation of powers that is not and has never been the law.” 4 1 Letter from Pat Cipollone, White House Counsel, to Chairman Elijah E. Cummings, Committee on Oversight and Reform (Feb. 25, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-0225%20Cipollone%20to%20EEC%20re%20Security%20Clearances.pdf); Letter from Pat Cipollone, White House Counsel, to Chairman Elijah E. Cummings, Committee on Oversight and Reform (Jan. 31, 2019) (online at https:// oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-0131%20Cipollone%20to%20EEC%20re%20Security%20Clearances.pdf); Letter from Pat Cipollone, White House Counsel, to Chairman Elijah E. Cummings, Committee on Oversight and Reform (Mar. 4, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-0304_2%20Cipollone%20to%20EEC%20re%20Security%20Clearances.pdf ). 2 Barenblatt v. U.S, 360 U.S. 109, 111 (1959). 3 Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017). See also Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (recognizing that the judicial branch may owe “heightened deference to the judgments of the political branches with respect to matters of national security”). 4 Stillman v. Dep’t of Defense, 209 F. Supp. 2d 185, 212-13 (D.D.C. 2002) (rejecting the Government’s argument that “any and all conflicts between national security interests and individual constitutional rights can not be resolved by the Article III courts because the Constitution commits the protection of national security to the The legal position advanced by the White House relies on a misreading of the Supreme Court’s decision in Dep’t of Navy v. Egan. 5 At issue in Egan was whether a statute that Congress established to govern the removal of federal employees—including for national security reasons—permitted the Merit Systems Protection Board to review the merits of a security clearance denial. 6 An important premise of the Court’s decision in Egan was that Congress had not authorized the Board to review national security clearances. 7 The Court recognized that courts “traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs,” but it cabined that recognition by noting that this is true “unless Congress specifically has provided otherwise.” 8 In Egan, the Supreme Court acknowledged that Congress has the power to modify the Executive’s military and national security affairs authority through legislative action. Congress has done just that through several major statutes—including the Freedom of Information Act, the Classified Information Procedures Act, the Foreign Intelligence Surveillance Act, the International Emergency Economic Powers Act, and the Antiterrorism and Effective Death Penalty Act—specifically enabling judicial review of Executive Branch claims and decisions relating to protected information. Similarly, Congress has passed legislation requiring the Executive Branch to make disclosures to the public, or to Congress, about its national security processes—thereby altering the authority of the Executive Branch to keep secret information about national security affairs. For example, Congress recently passed a law requiring the Executive Branch—including the White House—to provide substantive reports on the security clearance process. 9 This law was passed by both houses of Congress and signed by President Trump. 10 In addition, on March 26, 2019, the Committee passed the Transition Team Ethics Improvement Act, which would require Presidents-elect to disclose to Congress the names of Executive Branch”), rev’d on other grounds, Stillman v. C.I.A., 319 F.3d 546 (D.C. Cir. 2003). 5 484 U.S. 518 (1988). 6 Id. at 520. 7 Id. at 530. 8 Id. (emphasis added). 9 SECRET Act, Pub. L. No. 115-173 (2018). The White House is currently in breach of this statute. 10 The White House’s February 25, 2019, letter asserts that “the White House has provided to Congress the information requested under section 4 of the SECRET Act.” The White House claimed that the requirement to submit to Congress a report about the “process for conducting and adjudicating security clearance investigations for personnel of the Executive Office of the President, including personnel of the White House Office,” was satisfied by the five-page memorandum issued by former Chief of Staff John Kelly on February 16, 2018. However, the SECRET Act became law on May 22, 2018—three months after General Kelly circulated his memorandum. It is not a legitimate argument to assert that a document made publicly available prior to the enactment of the SECRET Act satisfies the reporting requirement in that statute. Moreover, the substance of the memorandum does not satisfy the requirements of the SECRET Act, as it proposes broad reforms to be “carefully considered and implemented as appropriate”—but does not set forth an affirmative description of the process. 2 individuals for whom a Transition Team is seeking security clearances, as well as the names of individuals granted security clearances. 11 With regard to security clearances, Congress has passed numerous statutes governing the adjudication and investigation of security clearance applications, as well as the handling of classified information.12 The White House’s implication that there is no “potential legislation that Congress could legitimately enact to alter the standards or the process that the Executive Branch follows for granting clearances to the President’s closest advisors in the Executive Office of the President” is incorrect. Below are some of the many legislative acts that the Committee could consider to address flaws in the White House security clearance system: • Legislation establishing new protocols and procedures for adjudicating security clearances, including legislation requiring audit reports to Congress about the sufficiency of adjudicative summaries created by agencies and offices, including the White House Security Office; • Legislation creating or amending criminal penalties for the improper disclosure or possession of national security information, including the disclosure of such information over social messaging services; • Legislation requiring risk analyses relating to classified information accessed by officials who were granted interim security clearances but denied permanent security clearances; • Legislation generally prohibiting the grant of security clearances to individuals with certain disqualifications; • Legislation requiring written notification to Congress if security clearances or access to national security information is granted against the advice of career officials in the White House Security Office, the intelligence community, or senior White House advisors, stating why the clearance was necessary despite countervailing advice, and documenting the process through which the clearance application was adjudicated and how underlying recommendations were overruled; • Legislation enhancing interagency coordination and information-sharing regarding security clearance holders accused of wrongdoing; 11 Committee on Oversight and Reform, Committee Passes Legislation to ‘Ban the Box,’ Support Transparency, and Protect Inspectors General (Mar. 26, 2019) (online at https://oversight.house.gov/news/pressreleases/committee-passes-legislation-to-ban-the-box-support-transparency-and-protect). 12 See, e.g., 50 U.S.C. § 3341; 18 U.S.C. § 798; and 5 U.S.C. § 9101. 3 • Legislation enhancing criminal penalties for individuals who submit inaccurate information in security clearance applications or other federal forms; and • Legislation altering the appropriation of funding to processes underpinning the security clearance system, including background investigation services. The Committee’s legislative efforts require detailed information about the White House’s actual practices and specific problems relating to security clearances to enable the effective consideration of legislative reforms aimed at addressing those shortcomings. Corruption, Misconduct, and Abuse Congress enjoys “broad authority to investigate, to inform the public, and, ultimately, to legislate against suspected corruption and abuse of power in the Executive Branch.” 13 This authority encompasses Congress’ inquiries into the administration of Executive Branch departments—including discretionary Executive actions. 14 For example, Congress has investigated the misuse of the White House Office of Political Affairs; 15 the White House’s disclosure of covert CIA Agent Valerie Plame Wilson’s identity; 16 allegations that senior Reagan administration officials secretly facilitated arms sales to Iran in contravention of an arms embargo and used the proceeds to fund Contra rebels in Nicaragua; 17 and the events surrounding the June 1972 break-in at the Democratic National Campaign headquarters at the Watergate Hotel.18 Similarly, Congress possesses the power to inquire whether the White House’s security clearance decisions were motivated by improper or corrupt motives. Indeed, Congress “possesses that power, as it possesses every other power essential to preserve the departments 13 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 498 (1977) (Brennan, J., concurring) (internal quotations and citations omitted). 14 McGrain v. Daugherty, 273 U.S. 135, 177 (1927). The White House’s letter cites McGrain for dicta but ignores the substantive holding that Congress’s investigation into discretionary functions of the Executive Branch is a legitimate legislative function. See also Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 78 (D.C. Cir. 2008) (it “defies both reason and precedent” to assert that Congress, charged with oversight of the Executive generally, cannot investigate specific exercises of the Executive’s discretion). 15 Committee on Oversight and Government Reform, Draft Report: The Activities of the White House Office of Political Affairs, 110th Cong. (Oct. 2008) (online at https://wayback.archiveit.org/4949/20141031185123/http://oversight-archive.waxman.house.gov/documents/20081015105434.pdf). 16 Committee on Oversight and Government Reform, Hearing on White House Procedures for Safeguarding Classified Information, 110th Cong. (Mar. 16, 2007) (online at www.govinfo.gov/content/pkg/CHRG110hhrg38579/pdf/CHRG-110hhrg38579.pdf). 17 The Iran-Contra Report: The Overview, New York Times (Jan. 19, 1994) (online at www.nytimes.com/1994/01/19/world/iran-contra-report-overview-walsh-criticizes-reagan-bush-over-irancontra.html). 18 What to Remember About Watergate, New York Times (May 20, 2017) (online at www.nytimes.com/2017/05/20/opinion/sunday/trump-nixon-watergate-congress.html). 4 and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.” 19 Whistleblower Protections For more than a century, Congress has protected the rights of federal employees to make disclosures about waste, fraud, and abuse in the Executive Branch. The protection of the rights of federal whistleblowers, and the investigation of their claims, has been at the core of this Committee’s legislative and investigative powers—which has operated on a bipartisan basis for decades. This Committee has the constitutional authority to assess whether legislative protections for whistleblowers are sufficient and to investigate whether and how White House officials have taken impermissible personnel actions against whistleblowers, including those who make protected disclosures about the national security flaws in the White House security clearance system. These authorities remain undisputed and are one of several justifications for various interview and document requests made by the Committee. Ample Congressional Precedent As the Committee noted in its February 11, 2019, letter, over the past several decades, the Committee has obtained security clearance information regarding the President’s closest advisors, sworn hearing and deposition testimony from top White House security officials, and a wide range of other documents and witnesses relating to the security clearance process at the White House. Although there is no legal requirement for the Committee to set forth precedents for obtaining the same or similar material previously, in the interests of further accommodation, additional congressional precedents are set forth below. • 19 In 1996, the Clinton White House produced to the Committee the entire FBI background investigation file of former White House Travel Office Director Billy Dale and other documents and information about the White House’s background investigation process—including testimony by senior political personnel—in connection with this Committee’s investigation of unauthorized possession of FBI background files by the White House. In this investigation, the Committee conducted depositions of White House Counsel Bernard Nussbaum; Assistant White House Counsel Bill Kennedy; Special Counsel to the President Jane Sherburne; White House Security Office Director Craig Livingstone; and FBI Special Inquiry Unit Chief James Bourke. The Committee posed specific questions, on the record, about the White House’s protocols for requesting and maintaining personnel security files and conducting personnel security Burroughs v. U.S., 290 U.S. 534, 545 (1933). 5 investigations, as well as the White House’s treatment of Mr. Dale’s background investigation information. 20 • In 2007, the Committee held a public hearing with White House Security Office Director James Knodell, during which he testified regarding whether specific White House officials’ security clearances were revoked following the leak of covert CIA agent Valerie Plame’s identity. Contrary to the characterization of that testimony in the White House’s February 25, 2019, letter, Mr. Knodell testified about steps taken and not taken by his office in connection with the Plame identity leak, including confirming that Deputy Chief of Staff Karl Rove and Chief of Staff to the Vice President Scooter Libby continued to maintain their security clearances after the breach of Ms. Plame’s identity, and that no White House Security Office investigation had occurred regarding the involvement of Mr. Rove or Mr. Libby in the leak of Ms. Plame’s identity. 21 • In connection with the Plame investigation, the Committee also reviewed FBI interview summaries with senior White House officials, including Chief of Staff to the Vice President Scooter Libby; White House Chief of Staff Andrew Card; White House Deputy Chief of Staff for Policy Karl Rove; National Security Advisor Condoleezza Rice; Deputy National Security Advisor Stephen Hadley; Counselor to the President Dan Bartlett; and White House Press Secretary Scott McClellan. 22 • In 2017, in response to a bipartisan request from then-Chairman Jason Chaffetz and then-Ranking Member Cummings, the Committee obtained portions of former National Security Advisor Michael Flynn’s SF-86 application relating to his foreign contacts. The Committee also obtained FBI summaries of interviews conducted as part of General Flynn’s background investigation, including interviews bearing on his foreign contacts and foreign business interests, as well as communications and other documents related to General Flynn’s reporting of his contacts with foreign nationals outside of the background check process. • In 2018, the Oversight and Judiciary Committees obtained information as part of their joint investigation of Hillary Clinton’s emails and actions taken or not taken by the FBI during the 2016 election, including a spreadsheet with the dates White House officials entered the security clearance process and were granted or denied 20 Committee on Government Reform and Oversight, Interim Report: Investigation into the White House and Department of Justice on Security of FBI Background Investigation Files, 104th Cong., H. Rpt. 104-862 (Sep. 28, 1996) (online at www.congress.gov/104/crpt/hrpt862/CRPT-104hrpt862.pdf). 21 Committee on Oversight and Government Reform, Hearing on White House Procedures for Safeguarding Classified Information, 110th Cong. (Mar. 16, 2007) (online at www.govinfo.gov/content/pkg/CHRG110hhrg38579/pdf/CHRG-110hhrg38579.pdf). 22 Committee on Oversight and Government Reform, Draft Report Regarding President Bush’s Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukasey (Dec. 5, 2008) (online at https://wayback.archive-it.org/4949/20141031184627/http://oversightarchive.waxman.house.gov/documents/20081205114333.pdf). 6 clearances, a background investigation interview summary for Jared Kushner, and an internal readout of the background investigation of former Deputy Assistant to the President Sebastian Gorka. • In 2018, in response to a request from then-Chairman Trey Gowdy, the Committee obtained information about four dates on which the FBI provided derogatory information to the White House as part of former Staff Secretary Robert Porter’s background investigation, including specific offices at the White House to which the FBI communicated this information. Failure of White House “Accommodations” The White House has refused to produce any documents or witnesses requested by the Committee, any information about specific White House officials, or any information about policies or practices used during the first eighteen months of the Trump Administration. Instead, the White House has provided two purported “accommodations”: (1) an in camera review of approximately 50 pages of policy documents drafted in June and November of 2018; and (2) a 90-minute briefing by the Chief Security Officer about White House processes in place since June 2018 for adjudicating security clearances. These accommodations are inadequate. The Committee accepted the in camera document review and briefing despite the significant limitations in their scope. However, even the extremely narrow document review and briefing raised additional questions that the White House refused to answer. For example, it was immediately apparent from the review of the documents that none of the White House policies had been developed before June of 2018. Committee staff asked to review the policies in place at the beginning of the Administration, but those requests were denied. For example, Committee staff repeatedly asked to review prior versions of the “Reciprocity” policy (No. 4208-03), which had a “last revised” date of January 5, 2018, and an effective date of June 21, 2018. Those requests were denied. The information the White House provided about how current security processes should work fails to address the serious and significant problems that actually occurred over the past two years. The White House continues to withhold information about the ways in which the security clearance practices put national security at risk. The concerns raised by the whistleblower highlight why the limited information provided by the White House is insufficient to accommodate the Committee’s legitimate investigative and legislative interests. The White House’s most recent letter to the Committee claims that “the Committee has shown no willingness to accommodate legitimate Executive Branch prerogatives.” That claim is also inaccurate. 7 In the spirit of accommodation, the Committee engaged in extensive letter and phone communications to identify priorities, answer questions, and urge compliance in an effective and efficient manner. The Committee explained the allegations it is investigating in detail, cited legal and institutional precedent, and provided specific evidence that further explains the need for the investigation and for obtaining these documents and interviews. As an additional accommodation, the Committee postponed consideration of potential compulsory measures while it accepted the extremely limited in camera document review and briefing. The Committee explained at length why the limited information provided by the White House is insufficient. The Committee has requested specific documents and witness interviews about significant allegations of dysfunction in the White House’s security clearance process. This information is necessary for the Committee’s factual assessment of how the security clearance system failed and what legislative reforms may be necessary to address these failures. 8