Lawmakers May Seek Criminal Probe into DVD Destruction by NASA Lawyer

The top Democrat and Republican on the House Science and Technology investigations and oversight subcommittee are considering asking the U.S. Department of Justice (DoJ) to investigate further the destruction of video recordings of NASA Administrator Mike Griffin’s April 10 meeting with his agency’s internal watch dogs.

Rep. F. James Sensenbrenner (Wis.), the subcommittee’s ranking Republican, made the announcement May 24 at the start of a two-hour hearing featuring testimony from two senior NASA officials involved in rounding up and destroying the recordings of Griffin’s 30-minute all-hands address to the 200 people who work for NASA’s embattled inspector general, Robert Cobb.

A yearlong investigation into Cobb’s conduct ordered by the President’s Council on Integrity and Efficiency (PCIE) accused Cobb of being too harsh on his subordinates and too cozy with NASA senior leadership to be considered properly independent.

In response to the PCIE’s report, Griffin ordered management training for Cobb to address how he deals with subordinates. But Griffin has said publicly he did not believe Cobb abused his authority or had otherwise done anything to warrant his removal.

Griffin is said to have made similar comments during the April 10 meeting, in addition to giving his opinion about what work the Office of Inspector General performs that he finds most worthwhile.

“We are here in part to reconstruct a meeting we should have been able to watch,” Sensenbrenner said. “I believe that this tape, which was produced by NASA employees with NASA equipment, was government property and there are criminal penalties for destroying government property.”

Sensenbrenner said that if Rep. Brad Miller (D-N.C.), the subcommittee’s chairman, writes a letter requesting the Justice Department investigate the matter,
he would be willing to sign it. After the hearing, Miller told reporters he is considering making such a request of Justice.

NASA General Counsel Mike Wholley said that he regretted destroying the recordings and was sorry for the embarrassment and distraction his actions have caused the agency. But he also said that he believed he was acting in accordance with federal records law when he broke in half and threw five DVDs in the trash that had been brought to him by NASA Chief of Staff Paul Morrell.

Morrell testified that he rounded up the recordings because they had been made at the request of a NASA public affairs official, despite an earlier order he had given to a different employee in video teleconferencing that the meeting was not to be recorded. Both Morrell and Wholley testified that Morrell never asked Wholley to destroy the recordings.

Wholley said he reached that decision on his own after consulting federal law on retention of records.

Sensenbrenner, an attorney who previously chaired the House Judiciary Committee, said he consulted the same law, as well as related court decisions, and found it to be unambiguous as applied to the April 10 recording.

“I think it is very clear the tape was a public record,” Sensenbrenner said. “It is also a crime to destroy public records.”

Wholley acknowledged that he was not an expert on public records law, had never been asked to consider whether a record should be destroyed and did not seek the advice of the record law experts on his 35-person headquarters staff.

“There was certainly no intention on my part to destroy evidence,” Wholley said. “What I did, I did in good faith. If it was a mistake that I made on the law, it’s
probably not the first one I ever made nor will it unfortunately be the last.”

Miller said under normal courtroom rules of evidence, when someone destroys a document germane to the case, it is presumed that the document is damning to the party that destroyed it.

“It is impossible not to assume the worst about what the destroyed DVD showed,” Miller said. Wholley also testified that protecting Griffin never entered into
his decision to destroy the recordings.
“At that time that I finished my research, which we may now say was not sufficient, I did not believe they were federal records,” Wholley said. “I did not believe public affairs should have copies. I did not believe there was any reason for the copies to exist only to become records and possibly FOIA-able. And, as perhaps impossible as this may seem, I did not consider — truly — my boss. I did not consider the political aspects of this. Nobody  regrets more that I cannot produce
copies of this DVD.”

Wholley had misgivings about holding the meeting in the first place, telling Morrell in an e-mail released by the subcommittee that he saw “no ‘upside’” for Griffin in meeting with the IG staff---- criticizing Cobb would lend credibility to the complaints; praising Cobb would risk Griffin “becoming the center of the controversy.”

Before Wholley and Morrell took the stand, the subcommittee heard from two senior managers in the NASA Office of Inspector General: Evelyn Klemstine, the assistant inspector general for audits; and Kevin Winters, assistant inspector general for investigations.

Both Klemstine and Winters questioned the wisdom of Griffin having Cobb present during a meeting with the Office of Inspector General Staff about the allegations against their boss and the actions that had been taken as a consequence.

But only Klemstine, who oversees a staff of 100 auditors who examine the performance of NASA programs, took issue with the content of Griffin’s remarks.

She said inspector general staff attended the meeting expecting a badly needed “pep talk” from Griffin to boost the morale of an office that has been dealing with
the investigation of its boss for more than a year. What some of her staff felt they got instead, she said, was a dressing down for wasting time and money on program audits of questionable worth.

Griffin’s spokesman David Mould previously has acknowledged that Griffin, in response to a question from a meeting attendee, said he found waste, fraud
and abuse investigations more useful than program audits.

“Many of my staff felt undermined by his comments,” she said.

While Klemstine questioned some of the context and content of the meeting, she told lawmakers she did not think there was anything gained from destroying
the recordings.

“The price of destroying those tapes was not worth what was on those tapes,” she said.

A broader joint House-Senate hearing on Cobb’s conduct and NASA’s response to the PCIE’s findings has been scheduled for June 7.

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Editor-in-Chief, SpaceNews

Brian Berger is the Editor-in-Chief of SpaceNews, a bi-weekly space industry news magazine, and He joined SpaceNews covering NASA in 1998 and was named Senior Staff Writer in 2004 before becoming Deputy Editor in 2008. Brian's reporting on NASA's 2003 Columbia space shuttle accident and received the Communications Award from the National Space Club Huntsville Chapter in 2019. Brian received a bachelor's degree in magazine production and editing from Ohio University's E.W. Scripps School of Journalism.