Michael McDonald, former NEH Acting Chairman, testifies in the Americans Council of Learned Societies v. McDonald deposition that over 1,400 grants were terminated by "Doge" consultants Nate Kavanaugh and Justin Fox using ChatGPT-generated rationales for DEI violations. McDonald admits agreeing to eliminate offices like Digital Humanities but disputes the accuracy of flags against projects digitizing African-American newspapers or Holocaust education, while acknowledging he refused to rescind terminations despite legal inaccuracies in termination letters. Ultimately, the testimony reveals a systematic purge driven by executive orders to reduce "wasteful spending" and ideological alignment, bypassing standard appeals and raising severe First Amendment concerns regarding viewpoint discrimination in federal funding. [Automatically generated summary]
Transcriber: nvidia/parakeet-tdt-0.6b-v2, sat-12l-sm, and large-v3-turbo
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Upcoming Depositions00:12:54
We are on the record.
The time is 933.
The date is January 30th, 2026.
This is the beginning of the deposition of Michael McDonald, case captioning as Americans counsel of learned societies versus McDonald's.
Well, counsel, introduce yourselves and state who to represent.
Dix.
And why was it that you're no longer the acting chair after that date?
That has to do with the Vacancies Reform Act.
It set a time limit for service in an acting capacity, and the time expired on that date.
And so who is currently serving as the acting chair?
At the present time, we're working off of an order of succession that President Obama signed in 2016.
And the current person is our Assistant Chairman of Planning and Operations, Pranitha Raghavan.
And so she's acting.
She is the acting chairman at the moment.
Understood.
Have you ever been deposed before?
No.
So you never given sworn testimony in any context?
No.
Have you ever been a party to any other litigation?
No.
Have you ever been a witness to any other litigation, submitted a declaration or affidavit?
No.
I understand that you were a longtime practicing attorney before coming to NEH.
Is that right?
Well, you're still a practicing attorney in private practice, actually.
Yes.
Yes, that's correct.
And did you ever take a deposition in that role?
Yes.
How many would you say?
I would say a couple.
And did you ever take live testimony in court?
No.
But you're familiar with the basics of depositions, then I take it.
Yes.
Okay.
Well, familiar.
It's been a while.
Understood.
And you understand that you're under oath to tell the truth today?
I do, yes.
And you understand that Ms. Brennan is here representing you in your capacity as a government employee?
Yes.
And you understand that counsel for the government might object, but that you need to answer the question unless you're instructed not to, and you accept that instruction.
Yes, I understand.
Okay.
Let me know if you need a break at any time.
The only thing I'd ask is that if you do, just answer any question that's pending and then we can take a break.
I understand.
Okay.
What did you do to prepare for this deposition?
I reviewed documents.
I had discussions with other attorneys in the Office of General Counsel and with the attorneys representing me today.
And which attorneys in the Office of General Counsel did you speak with?
The Deputy General Counsel, Lizette Foyatz, is Associate Attorney, Kim Hyland, and Mary Ellen, and Rachel Dowd.
Understood.
And around how many times, well, let me start with the attorneys in your office.
Did you have separate meetings with the attorneys in those office and the attorneys for the Department of Justice?
Yes, you know, we had a number of ad hoc meetings, yes, individual, sometimes collectively.
All in relation to this deposition?
Well, yeah, there were meetings in relationship to this deposition, yes.
And around how many meetings with your team at NEH, would you say?
It's difficult to say.
More than one?
Yes, more than one.
More than five?
I'd say, yeah, maybe a dozen.
That's ballpark around there.
It's difficult to say because one conversation on one topic bleeds into another.
We've had a lot of discussions recently about the leadership situation here at NEH.
And in the course of those discussions, the conversation might turn to the upcoming depositions.
Understood.
And those 12, you said dozen, is that right?
Roughly?
Roughly.
That's really just a guesstimate.
I understand.
And were those over all over the last few weeks?
Yeah, I'd say, yeah, in the last few weeks.
And how many times did you meet with the attorneys from the Department of Justice about this deposition?
Including video chats.
I'd say not more than half a dozen.
And those were all also in the last couple weeks.
That's correct.
When did you last meet with them about this deposition?
Yesterday.
Yesterday.
Did you review any, I think you said you reviewed documents and preparing for this deposition?
Yes.
Which documents would those be?
Documents.
That would be, that would be work product privilege to know what documents he reviewed.
I'm not asking which documents you provided him.
I'm just asking which documents he reviewed.
Oh, which documents he reviewed.
Yeah, and preparing for this deposition.
Are you saying it's his work product or your work product?
It's our work product.
What documents we looked at during PrEP?
Are you asking him?
That's fine.
I'll withdraw the question.
And you understand, I mentioned this this before, but just to state it again, that counsel from the Department of Justice is here representing the interests of the government of the National Endowment of Humanities.
Yes, I understand that.
And have you discussed this deposition at all with private counsel?
No.
Other than the attorneys at NEH and the attorneys of the Department of Justice, have you discussed this deposition with anyone else?
Discussed the deposition, yes, with other people.
And who would those be?
Friends.
So we have upcoming depositions.
So people who are being deposed.
Friends, you mean friends in the government, outside the government?
People, for example, on the National Council for the Humanities, council members, people that I'm working with on other projects.
For example, this week, the time that was devoted to the prep for this deposition means that I couldn't do certain other things.
So I would say, I'm sorry, I can't get to that now because preparing for a deposition.
I understand.
So other than telling them about the fact that the deposition was happening, did you have any discussions with anyone other than the counsel we've discussed about the substance of what the deposition would entail?
No.
Not a single other person?
No.
Did you discuss it at all with Adam Wilson?
Yes, of course.
I mean, discussed it with the sense that we're going to be having depositions, yes.
Did you discuss it all, the testimony that either you or he would provide of those depositions?
We spoke in general terms about questions that could potentially be asked.
Yes.
And what were some of those questions?
The questions have to do about whether or not who was making the terminations, the overall process in which the terminations were conducted.
So let's just take those one at a time.
You said the questions over who was making the determinations.
Yeah.
And by that you mean, well, what do you mean by that?
Well, my understanding of preparation is that that would be a question that would be asked.
And so we were reviewing the sequence of events that took place when we canceled the grants.
And when you say who would be terminating, you mean as between you and people who don't work at NEH, is that correct?
As between people at NEH and the Doge consultants that were sent in, yes.
And who are the Doge consultants?
Nate Kavanaugh and Justin Fox.
And so your discussions were, you anticipated questions over whether it was you or whether it was Kavanaugh or Fox that terminated the grants?
We anticipated that one of the elements of the plaintiff's case, which had already, we of course had looked at the judge's opinion.
We knew what the arguments were that the plaintiffs that you were making.
We knew that there were claims about ultra virus actions.
And so, yeah, we had discussions on what exactly happened.
I see.
So you knew one of the plaintiffs' claims is that it was in fact the Doge consultants, as you call them, who terminated these grants and not yourself.
That's correct.
And you knew that the government's defense was that, no, it was in fact you, Michael McDonald, who terminated the grants?
No objection.
What's the objection?
The objection is that you're representing a fact to him via a question.
That's not a proper question, so it's an objection to form.
I can't ask him about facts, you're saying your question is representing a fact that he has not testified to, and that is not an appropriate question, so it's an objection to form.
Okay.
You mentioned that you read the papers in this case.
Is that right?
I read the judge's opinion.
I certainly reviewed some of the filings in the case.
Yes, so I was aware of the arguments.
That included filings made by the defendants in the case.
Yes, of course.
And that included the defenses that the defendants were making in the case?
Yes.
And was one of those defenses that it was, in fact, you, Michael McDonald, who terminated the grants?
That was the fact.
Yes, so that was a defense.
Okay, so you discussed with Mr. Wolfson in preparation for both of your depositions, I assume those were the contexts.
It was before his deposition, too?
Objection.
The discussions you mentioned a few minutes ago that you had with Mr. Wolfson, when were those discussions?
These, I would characterize these not as meetings to prepare for either his deposition or my deposition, but just as casual conversations that we would have.
His office is located not far from mine, discussions about the upcoming depositions and what possible questions we could face.
But there wasn't any sense that we were having a formal sit-down meeting to review documents and to prepare our defense.
I never did that with him, but certainly we talked about the judge's opinion.
We talked about the allegations that the plaintiffs were making about what actually happened.
And did you discuss with him the importance of testifying that it was you who terminated these grants?
I don't recall ever saying that to him, no.
Did you go through any documents with him to identify what you would consider to be evidence that you were the one who terminated these grants?
No.
So what was the nature of your discussions then?
As I said, it was just general discussions about the claims that have been raised in the complaint and in the filings and in the judge's decision.
Obviously, the decision comes down, you read it, you discuss it with people.
And did you discuss the questions you anticipated getting with anyone else at NEH other than people in the general counsel's office and Mr. Wolfson?
No.
Anyone in the federal government outside of NEH other than your Department of Justice Counsel?
No.
Have you spoken with Mr. Wolfson at all since the beginning of his deposition yesterday?
Briefly this morning.
And what was the substance of that conversation?
He wished me good luck and I said thanks.
Did he tell you anything about the questions that were asked?
No.
Not a word?
Not a word.
Did you have any text messages with him since his deposition started yesterday?
I had one text message, yes.
And when was that?
Pernitha Raghavan, who is the acting head of NEH at this point, informed me yesterday that she's going to be taking a job with the ACLS.
And so your text message was over that.
Yes, she's going to be leaving.
I informed her of the approximate date when she told me she'd be leaving.
So that text message didn't discuss the depositions?
It did not.
Okay.
I'm going to now hand you a copy of a CV of yours that I found online.
We'll mark this as exhibit one.
Viewpoint Discrimination Doctrine00:15:37
Here's a copy.
And here's one for you guys.
Wait, exhibit one March.
Do you recognize this document?
Yes.
And that's a picture of you, I assume, at the top?
No, it's a younger me, yes.
And do you recall around sort of as of what date this document would have been posted or most recent?
2006, 2007, maybe 2008.
I see that it has 2008.
It was sometime around that period, yeah.
Okay.
Actually, I just noticed for myself at the top, it looks like this is an internet archive date in 2015.
Does that sound fair?
Forgive me, yes.
Never argue with the internet archive.
Exactly.
And at the time that this was posted, was this a fair and accurate representation of your professional and academic experience?
Yes.
Okay.
With apologies, I'm going to skip through your educational history and go straight to your professional history, which I believe starts, or I'm going to ask about page two.
So it says Washington Legal Foundation 1981 to 1988.
Is that right?
Yes.
And was that your first job at a law school?
Yes.
And what type of organization was that?
It was a conservative legal public interest law firm.
And when you say conservative, can you explain what you mean by that?
say, constitutionally conservative.
It had an aspect to it of a think tank.
It published papers dealing with all the political topics in a legal sense that are always percolating.
And it filed a lot of Amicus briefs and cases in federal courts on cases that covered the gamut from criminal cases to civil cases, tort cases, from a position that we would normally associate with conservative legal advocates.
Understood.
And you mentioned it functioned a bit like a think tank.
What were some of the issues on which it put out, you know, more of those think tank type papers?
To the extent you recall?
Yeah, to the extent I can recall.
Let's see.
We published papers on tort reform, for example.
It was doing a lot in the publication area, in the area of business law, commercial litigation.
And how many people were there at the time you were there?
I'd say less than a dozen.
And how many of them were litigators?
It shifted over time, but on average there were at least one, two, three, four, there were at least five licensed attorneys.
And you were one of those litigators.
We never went into court to litigate, but we did file briefs, as I say, amicus briefs, occasionally.
It'd be rare instances where we were in court.
You filed court documents.
That's correct.
Okay.
And what type of cases did you file those briefs in?
Like what types of legal issues?
The game of legal issues that, for example, would be under the Supreme Court docket.
We would review cases on appeal and we would see if we would have an interest in supporting the arguments on one side or other and we'd make those decisions.
So, you know, whatever is on the Supreme Court's docket at any given time, it's involved in free speech issues, racial preferences, separation of powers issues, criminal issues, death penalty, things of that nature.
So the first two that you mentioned, let's start with free speech issues, you said.
What sorts of free speech issues did you file briefs on?
With I can't recall any off the top of my head with the Washington Legal Foundation.
Any cases on viewpoint discrimination?
Again, with Washington Legal Foundation, no.
And were there any sort of particularly noteworthy cases in which you served as a representative for a party to the case, not as an amicus at the Washington Legal Foundation?
What do you mean by noteworthy?
Well, let's just strike.
You can strike that question.
Around how many cases did you represent a party as opposed to an amicus at the Washington Legal Foundation?
Very few.
Can you list the cases that you recall?
No, at this point, I really can't think of any.
Okay.
So you left the Washington Legal Foundation in 1988, is that right?
That's correct.
And why'd you leave?
An opportunity had presented itself to start a public interest law firm with another individual.
And so I left in 1988 to begin the process of setting the firm up, incorporating it, and trying to raise money from potential donors to fund it.
And that was the Center for Individual Rights?
That's correct.
And that was a law firm?
Yes.
And you founded that, it says here in 1989, is that correct?
That's correct.
And who was your co-founder?
Michael Griva, G-R-E-V-E.
And was he an attorney as well?
No, he was not.
So you were the head lawyer, it's fair to say, at the organization?
That's fair to say, yes.
Okay.
And why did you want to start that organization?
Well, in part because we felt that the Michael Grieve had also been at the Washington Legal Foundation.
He has a doctorate degree in political science.
We felt that the Washington Legal Foundation was doing insufficient litigation.
We also thought that there was an opportunity to work with larger firms through their pro bono offices to actually prepare cases that could be litigated and to promote constitutional issues that we believed in.
And those were conservative constitutional issues, is that right?
Conservative libertarian.
Michael was perhaps more libertarian than I was.
You said, I'm sorry, if you said that.
I said Michael Grieva was perhaps more libertarian than I was in political orientation.
So I'd say conservative libertarians.
So you were more on the conservative side.
He was more on the libertarian side.
Correct.
And what types of cases did you litigate while you were there?
Well, we litigated free speech cases.
We litigated the constitutional cases.
We litigated against the use of racial preferences on university campuses.
And in general, did you sort of come up with the idea of cases that you want to litigate and then go find plaintiffs or the other way around?
it was a little bit of both.
We were looking for areas in which we could litigate.
At the same time, as I'm sure most public interest attorneys find, when you offer free legal services, people find their way to you.
And so it was a little bit of both.
I see.
So you didn't charge for any of your legal services.
It was all pro bono based on fundraising you had done.
That's correct.
Okay.
And you said free speech cases, is that right?
Were any of those viewpoint discrimination cases?
Yes.
And which cases were viewpoint discrimination cases?
Well, the most noteworthy would have probably been the Rosenberger versus the Rector, the University of Virginia case that went up to the Supreme Court.
And that was a, what were the facts in that case as it related to viewpoint discrimination?
It was a, the University of Virginia had established a student activity fund to fund publications, and they refused to extend funding to a group of students of the University of Christian Students at the University of Virginia who wished to publish a magazine.
And your argument was that constituted viewpoint discrimination?
That was a violation of the First Amendment, yes.
And I should have asked you before, um, can you define viewpoint discrimination?
Objection.
I would say the viewpoint discrimination, certainly in that instance, is where the state is not acting neutrally at treating all individuals who wish to engage in speech neutrally.
So taking it outside of the context of that case and more generally, can you, just speaking about what the doctrine of viewpoint discrimination is, can you articulate your understanding of what it is?
objection.
I would have a difficult time doing it this morning because to me it all depends on the context in which the facts arise.
You've taught before, is that right?
No, I've never taught.
Lectured?
I've given lectures a few, but not principally on activities that we conducted at my firm, not about Legal issues per se.
Around how many viewpoint discrimination cases did you litigate at CIR?
Let's say under a half dozen.
Okay.
But you were a pretty prominent lawyer in the field at the time.
I wouldn't say that.
Okay.
But you're testifying that you can't provide a just general understanding of what viewpoint discrimination means.
Objection.
No, I'm testifying that it depends on the context in which these claims arise.
Generally speaking, one can define it as the government taking action against speech that it disfavors, but that is too general to reach any conclusions.
That's why we have, for example, the Rosenberger case, 5-4 split on decisions.
These are complex issues and they're all very fact-specific.
But you said in general, subject to the caveats you gave, it's when the government takes action against viewpoints it disagrees with.
Is that right?
Did I get that right?
Objection.
Yes.
Okay.
And under Supreme Court precedent, viewpoint discrimination is almost always found to be unconstitutional.
Objection.
I wouldn't say I'm not sure I would agree with almost always.
Okay.
And it's factually specific.
Can you think of any example where the government engaged in viewpoint discrimination and was found not to be unconstitutional?
Objection.
No.
And putting aside constitutional law, would you agree that as a normative matter, viewpoint discrimination is a bad thing for the government to do?
Objection.
Again, it depends on the context.
Can you give me an example where viewpoint discrimination as a normative matter would be a good thing to do?
Objection.
The government has its own speech rights, and the government can promote its own speech to the detriment of speech that it chooses not to promote.
Is that viewpoint discrimination?
I don't think so, but some would argue that it is.
So putting aside the context of government speech and talking just about the speech of non-government actors, can you think of an example where viewpoint discrimination is a good thing normatively?
Objection.
Viewpoint discrimination by the government.
Correct.
Again, take a look at the immigration context.
The government had perfectly good reasons for engaging in viewpoint discrimination to keep out people who want to enter the country who are supporting terrorist organizations.
Okay.
Any other, any example in the context outside of national security?
Objection.
I can't think of any off the top of my head.
Any example involving the humanities?
objection.
Again, in the context of a grant-making organization, you have a limited amount of funds.
You have to make decisions which types of humanities projects you wish to fund.
You don't have an unlimited amount of money, so you have to make decisions.
Virtually everything in a certain respect at NEH, when you take a look at the criterion for which we evaluate grants And the decisions that the administration of that NEH takes when it comes in to go into certain areas is discriminating against the viewpoint of certain other types of speech.
And can you explain what you mean by discriminating in the context that you just said it?
Well, when the Biden administration came in and said that it was going to use the humanities to promote climate change, and the staff should work to direct NEH funding to humanities projects that dealt with climate change, that disadvantages applications that don't have climate change elements in it.
So in that sense, you're discriminating against projects that don't promote what the Biden administration wanted to promote.
And did you, at that time during the Biden administration, did anyone ever file a grant application that was pro-greenhouse gases that you decided not to fund?
Race and Caste Systems00:14:15
Objection.
I have no way of knowing.
I don't recall.
You mentioned that another area of focus at CIA was racial, CIR was racial preferences, is that right?
Yes.
And can you say more what you mean by racial preferences?
It's the government doling out benefits on the basis of race.
And when you say on the basis of race, what do you mean?
I mean that the government favors certain individuals because of their adherence to a particular racial, ethnic, or sexual group.
When you say adherence, how does a member of a racial group adhere to that group?
Well, by virtue of their birth into that race.
Right.
It's not a choice, right?
No, it's not a choice.
Is it true that in 1999, CIR launched a campaign to encourage students to sue their colleges for considering racial identity admissions decision?
I recall at the time that we did place notices to the effect that individuals who believed that they had been treated unfairly on the basis of their race should contact us, yes.
And that was for the purpose of recruiting potential plaintiffs for legal challenges.
That's right, but I'm not sure if that was in 1999, but if you tell me it is.
The internet tells me it is, but we'll just say around that time period.
Sure.
And is that the context in which the Grutter and Graz cases came about?
Yes.
And can you say what those cases were?
The Grants case involved racial preferences and admission at the University of Michigan.
And the Gruder case involved the use of racial preferences and the use of admissions at the law school, the Michigan Law School.
And you were representing plaintiffs challenging those uses of racial preferences as unconstitutional, is that right?
Yes, that's right.
And was it in violation of equal protection?
Is that right?
The challenge?
Yes.
And so was the goal of those cases to get a ruling from the Supreme Court that ended all affirmative action in admissions decisions at universities and colleges?
That was our hope.
Okay.
So it's fair to say then that as a policy matter, you don't like affirmative action.
Objection It's not a question of liking or disliking.
I feel, I believe, it's patently unconstitutional.
And why do you think it's patently unconstitutional?
Because I think it violates the command of equal protection.
And why does it violate the command of equality?
Because it treats citizens disparately on the basis of the immutable characteristic of race.
So your objection is purely legal to affirmative action.
That's it?
Objection.
I think it's also divisive, that it promotes disharmony, and it's unfair.
So let's just take those one at a time.
You said divisive, is that right?
Yes.
How is it divisive?
Objection.
Because it creates antipathy among different racial groups because of the perceived unfairness.
And you said disharmony, is that right?
Yeah.
Can you explain what you mean by that?
Objection.
Well, just stick to it.
It's socially, socially, socially destructive of unifying, unifying American citizens, to have some type of racial caste system whereby people are not treated according to their merit, but are treated according to, as I say, the fact that they belong to one or another racial classification.
And you said caste system, is that right?
Yeah.
And a caste system is a system in which one group of people is treated as sort of inherently more important or better than another group of people.
Yes.
And so you're saying affirmative action, in your view, involves, at least when it's the government, involves the government treating minorities as sort of more important or better than non-minorities.
Objection.
You say treating them not according to merit, but according to skin color.
Right.
So we used the word caste system, which is a very specific term.
Yeah.
And so a caste system, as we talked about it just two seconds ago, was a system in which one group of people is treated as better or is more important than another group of people.
So that means that under the view that affirmative action involves a caste system, the government is treating racial minorities as a better or more important group of people than white students, for instance.
Objection.
The government is particularly, particularly in the case of universities.
They have their own pecking order.
Asians are in one category, whites in another, African Americans in another one.
They have their preferential system, and there is a caste system that they use or have used to evaluate entry into their institutions.
And so under this caste system, who's at the bottom of the caste system?
objection?
It depends on whatever statistics you look at.
It could be It could be Jewish Americans.
It could be white.
It could be Asian Americans.
These systems are not entirely weighted in one way.
So your view is that.
Let's check that.
And then the last word you used was unfair.
Is that right?
Yes.
And it's unfair to him?
Objection.
It's unfair to the individuals who don't, in the context of university admissions, don't get admitted because of an accident of birth.
Because of accident, I'm sorry.
An accident of birth.
That being their race.
Yes.
They can't do anything about their race.
Correct.
Objection.
And so they shouldn't be treated any differently than their race.
Objection.
Because of their race, I'm sorry.
Objection.
I'll rephrase the question.
Please.
You don't believe the government should be treating people differently because of their race.
Objection.
I believe that the government should not be treating people differently because of their race.
That is correct.
And so if a university was going through applications, let's say it's today, so they can do it electronically, not by hand, and if they were running keyword searches for white students somehow, Caucasian, let's say, and pulling those out and saying those going to get cast aside, that would be unfair.
Objection.
I need more information.
They're pulling them aside for what purpose?
Not going to get admitted to our school, because the word Caucasian pops up.
Just because the word Caucasian pops up.
Correct.
Well, I don't believe they do that.
Just in a hypothetical university.
Objection.
You would be against that.
Yes.
Objection.
And same thing if they pulled aside applications that mention the word black and said these people aren't getting into our school.
Objection.
If they pull them aside for the purpose of denying them admission, yes.
What about LGBT?
Sorry, LGT.
Oh my gosh, LGBTQ.
Objection.
If the purpose of pulling them aside was to deny them admission simply on the basis of a word search, yes.
What if it wasn't simply on the basis of a word search, but because they wrote an essay, their college admissions essay, about why being a member of that community was important to them.
And they got, said, we're not going to admit anyone who does that.
Objection.
Now you're into areas of academic freedom and what leeway the universities have to consider things of that nature.
Well, public university, we're talking about.
Public university.
Objection.
Could you repeat the question?
Yeah, a public university does a search through the admissions essays, and anyone who speaks about why it's important to them to be a member of the gay community gets pulled aside and put in the trash bin.
So they're engaging.
So they're engaging in intentional discrimination on that basis.
Yeah, that would be wrong.
Same thing for people who search, who write about why it's important that they associate themselves with a member of a certain race.
Objection.
In the context of university admissions, yes, that would be wrong.
And religion?
Yes.
So if somebody says, I want to go to college because I want to study Jewish history, and the university says, we don't want anyone here who wants to study Jewish history, that would be unfair.
Objection.
If it was motivated by anti-Jewish animus, yes.
Let's say we don't know anything about their motivations.
They just, there's an admissions policy that says that this state university, anybody who says they want to study Jewish history, not going to get admitted.
Any other religion is fine, just not Jewish history.
Objection.
I would think that there would have to be a reason for having such a policy.
The policy on its face would seem to have been promulgated for invidious reasons of discrimination.
Same thing with black history?
Objection.
Yes.
White history?
Objection.
Yes.
Okay.
Do you consider affirmative action a form of DEI?
Objection.
Tell me what you what you think DEI is.
Well, I'll ask you that same question.
How do you define DEI?
Objection.
DEI, look, you can go to the dictionary and look at each individual word, and they have more or less a neutral, understandable, commonplace context, which we all understand.
DEI, as it was used during the previous administration, meant almost the opposite, in my view, of what the common understanding of those words is.
Okay, so what did it mean in the previous administration?
I think diversity was a proxy for race.
I think equity, of course, avoids the word equality.
They were using equity in the sense that results, people should end up in the same place.
I mean, and inclusion, again, it's inclusion to the inclusion in derogation of meritocracy of people's.
You want to include people, basically, whether or not they have the qualifications.
That's my understanding of the previous administration's advocacy of DEI.
So your understanding is that the Biden administration's, you use the word advocacy or let's say use of DEI at any age, for instance, would be they were going to pick grantees specifically not based on merit, but based on racial equalities?
objection?
It's a difficult question to answer because you have to understand how the funding process works at the agency.
It wasn't the fact that the people that were administering it were looking in the way that you suggest.
It was a more complex, subtle process in certain respects.
So can you give me an example of a grant that went out in the Biden administration that used the definition of DEI that you just described?
Well, sure, I could do one off the top of my head.
That has to do with the chairman's grant that the previous chairman, Shelly Lowe, made to Ibrahim X. Kendi to hold a conference about DEI whiteness.
I forget the exact topic, but Kendi was leading advocate of that, what I described as the DI, as I understood it.
And she, on her own authority, as I understand it, again, without any peer review, made a grant of $30,000 to Kendi, who was at Boston University at the time.
So that was kind of like a meta-DEI.
It was DEI to talk about DEI?
Funding Particular Views00:04:55
Objection.
No, it's Kendi's whole raison d'être, as I understood it, was advancing the view of DEI that I put forward here.
Can you give me an example where the grant itself was not specifically about DEI, but you think the awarding of the grant was an example of the Biden administration practicing DEI?
Sure.
We've had grant grant applications to the agency that who want to explore topics, um that have to do with uh.
Well, how would I characterize it?
Um that take a particular, that take a particular tendentious view of historical topics such as.
Can you give me an example of one?
I'm at a loss at the top of my head to think of one, but they normally come with titles that talk of blackness or whiteness in certain fields uh, about the exclusion of uh mainly having to could be, for example, with the prison system, the fact that the, the prison system in the United States is racist because of the large number of African Americans who are incarcerated in prison.
So there's nothing wrong per se with a project, as long as it doesn't tend over into advocacy.
One of the um, one of the purposes, one of the long-standing traditions at the agency, is only to fund projects that provide a diversity of viewpoints, that do not engage in in the promotion or advocacy of a particular religious uh social or political point of view.
You don't want to be funding uh tendentious advocacy.
So in the in the Trump administration, your testimony is that the the administration has not funded any such grants that advocate for a particular point of view objection.
My?
My position is that uh, the?
The Trump administration has acted.
Just as the Biden administration funded grants that promoted the Ei, the Trump administration has funded projects that take a take the opposite view of the benefits to be derived from the Ei.
So your testimony a moment ago was that the N?
EH should not be funding grants that take a particular point of view.
Is that right?
That's correct.
And has the Trump administration issued any grants that take a particular point of view?
The point about taking a particular point of view, mr Mcdonald, please just answer my question.
Has the Trump administration?
I'm speaking to counsel, who interrupted you while you were answering and that is not appropriate, so you need to let him answer the question.
Could you repeat the question?
Yes, has the Trump administration?
Has any age during the Trump administration issued any grants to grantees who are taking a particular point of view with the project they're performing, with the grant objection?
All projects have points of view.
So yes, mr Mcdonald, a moment ago you said the NEH should not be funding any grants that take a particular point of view.
Take let me clarify that that promote, that are, that are politically tendentious and that promote a particular religious.
These are, these are inherent, inherently subjective judgments.
So there's always going to be the question is where, whether you fall inside or outside the line that makes it that converts a project from being a project that has a point of view but that is is acceptable to fund, or one that is constitutes pure, pure advocacy, Okay,
so if I'm understanding, you're clarifying or revising your testimony to be that NEH should not fund any projects out of pure advocacy.
Objection.
As I say, the question of advocacy is one of degree.
It's always been a decision.
By our statute, the agency head makes all the decisions.
We have these discussions at our council meetings quite regularly.
Okay.
Advocacy Degree Questions00:06:52
I'll go just to close out your professional history.
Why did you leave CIR?
variety of reasons.
There were disagreements among the board of CIR and also disagreements between my partner, Michael Grieve, and myself about the direction, the areas in which we wanted to litigate with.
These were becoming increasingly contentious.
At the same time, I was on the verge of, I had completed my coursework for my doctorate degree in Romance Languages and Literatures.
And I was at the point where I needed to write my dissertation.
So I thought it would be a good idea, given the contentiousness, to I effectuated a separation agreement, took a year off, wrote my dissertation, and was fortunate enough to be hired here at the endowment in May of 2003.
And what drew you to NEH?
I'd say principally it was the chairman at the time, Bruce Cole.
Bruce was a scholar of the Italian Renaissance who spoke Italian and had written 14 books.
He was an admirable person in many ways, and we got along very well.
It was primarily that.
Anything about the institution itself as opposed to the person leading it?
No, I think that the NEH has an important mission to play, and there is a place for NEH in the spectrum of federal agencies.
It was certainly more attractive, let's say, than working for the IRS or another federal agency.
You know, at a certain point in one's career, one only has so many options as an attorney.
And your first role at the NEH was as deputy general counsel, is that right?
That's correct.
And you hold that role for close to two years, is that right?
That's correct.
And you then became general counsel in 2005?
Yes, I believe that's correct.
And from 2006 to 2008, you served as assistant chairman for programs?
Yes.
And what were your responsibilities in that role?
I was involved in, I was overseeing the division directors at that time.
We had, I don't know, six different divisions.
And the agency's purpose is to strengthen humanities scholarship and teaching.
I work with the directors on creating programs.
I was also involved in the review process.
There was also a brief time when I worked just to gain the experience, ran a few peer review panels myself, saw how they were put together.
So I was just involved in all the, I was required to read grant applications to confer with With the agency leadership about the value, the worthiness of the projects be funded, asked for my opinion about that.
Yeah.
Okay.
And from January 2009 to August 2009, you served as acting deputy chairman, is that right?
Yes, I was in the Biden administration after Chairman Cole left.
The acting chairman of NEH at the time, Carol Watson, asked me if I'd be willing to serve as her deputy, which I did for nine months.
And you were still the general counsel during that time?
No, we had an acting general counsel.
The deputy general counsel at that time served as the acting.
And after that role, you transitioned out of that role.
You were general counsel again?
That's correct.
And that was about 2009 through 2000, the end of 2024, I should say, January 2025, that you served as general counsel?
Right up until March 10th, when I was asked and accepted the position of acting chairman.
So you've been at NEH now for 23 years, is that right?
No, this May, it'll be 23 years, yeah.
Yeah.
And so it's fair to say you believe in this place as an institution.
Yes.
And you believe it's important for this institution to be nonpartisan?
objection?
As an abstract matter, certainly.
As practical matter, that's never been my experience throughout my 23 years here.
in what sense has it not been your experience when there when when there is a change in leadership the political leadership of whichever party tends to do what it can to promote the policies of the administration it's serving
So again, I go back to the Biden administration when they took over in 2020 or 2021.
The priorities were the promotion of DEI, the promotion of climate.
I don't know what you want to call it, climate change, even though NEH had never done any humanities work related to climate change that I was aware of, promoting environmental justice, and also DEI, certainly in terms of the workplace.
You mentioned the climate change grants a couple of times now.
It seems fair to say that you were not a fan of NEH issuing grants in that space, right?
Objection.
My job as a civil servant occupying the office is not to question the directives, but to do my best to give advice to help them be carried out.
My personal opinions, you're asking what my personal opinions were.
No, I wasn't a fan, but I certainly didn't do anything to put a stick in the wheel of what the administration wanted to do.
But as a matter of your personal opinion, you thought it was kind of ridiculous, right?
Objection.
I thought it was certainly economically baneful for the country to engage in those practices.
Transition Team Feedback00:17:36
And across your 23 years, this is an unanswerable question, probably, but.
You'll ask it anyway.
I'll ask it anyway.
Ballpark, how many grants do you think have gone out of the door from here across your 23 years from NEH?
Thousands?
Yeah, certainly thousands.
Maybe even tens of thousands?
Possibly.
And it's you'd agree that those grants to the recipients of those grants the grants are really valuable, right?
Objection.
Yes.
and why is that?
Because for reasons I don't quite understand, notwithstanding the fact that universities have billion-dollar endowments, scholars at the universities rely on government funding to help them in their research.
And oftentimes the research that they're doing in the humanities is very valuable.
Valuable in a non-monetary sense, you mean?
Yes, valuable for the good of the field, for the good of people generally, for greater appreciation of the value of the liberal arts.
And they're also valuable to a person's career trajectory, it's fair to say, or can be.
Yes.
Prestigious?
Yes.
Do they help universities recruit faculty?
objection do they do any h grants help universities recruit faculties Could you rephrase that?
What do you mean by that?
I'll withdraw the question.
It was a bad question.
When NEH funds a grant, let's say for someone to write a book, NEH is funding that grantee's speech, right?
objection any age is any age establishes programs and sets out criteria the types of project projects and in that sense speech it wishes to fund
Where the government is going to invest its money in that, it wants to be confident of, you know, that the money is going to be used for the purposes that the government, or in this case, the agency wants, not the individual.
So yes, we want to make sure that the project doesn't met them, that it doesn't metamorphosize into something that it shouldn't be, such as political advocacy.
But when somebody files a grant application and they say, I'm writing a book on, you know, 19th century Italian architecture, I don't even know if any, I'm guessing someone's written a book about that.
I'm sure they are.
And they ask, they submit a grant application for funds to support that book.
And they get the grant.
The book itself is still the author's speech, right?
Objection.
Okay.
Dan, I mean, we've let this go on for a while, but I don't see how some of these questions are designed to elicit discovery of admissible facts.
It seems like you're just engaging in legal discussions with the witness.
Okay, I understand your objection.
You spent about, we said, 22 years at NEH prior to becoming the acting chair in 2025, is that right?
Yeah.
And that covered three presidential transitions, is that right?
Let's see.
George W. Bush, there's Barack Obama.
Then who did we have?
Donald Trump.
Then we had President Biden.
Yeah, four.
And during those 22 years, did NEH ever terminate a grant or cooperative agreement during your time here?
No, I think there were very few instances that I recall when we may have a couple.
Generally, we terminated a grant, as I was about to say, continue what I was saying before, when there could be a change, for example, in the direction the project is going in that we didn't like.
Can you give me a ballpark of how many grants NEH terminated in those 22 years?
I say very few, probably under half a dozen.
Less than six?
Possibly.
That's, you know, 0.2 grants a year or something like that.
I will do the math.
It's probably wrong.
Less than one grant a year.
Correct.
And did NEH ever terminate a grant solely because NEH disagreed?
Sorry, withdraw that.
Did any age ever terminate a grant before 2025 based on agency policies or priorities?
Grant.
No, to the best of my knowledge.
And with those prior grant terminations, did the Office of General Counsel typically review the grant termination notices?
It would depend.
It would depend.
What would it depend on?
It would depend on the circumstances on which we were terminating the grant.
So what would be a circumstance when the OGC would not review a grant termination notice?
I would say most instances we probably would, but there are some instances that may have been so clear-cut that it was simply left up to the directors to propose a memo to the office of the chairman or chairwoman or chairperson to requesting the termination of the grant, and it would be done on that basis with minimal or perhaps even no NEH general counsel involvement.
And you mentioned you've been at NEH, I think, for three prior transitions, presidential transitions.
Did NEH ever terminate a whole host of grants following a transition?
No.
Okay.
I think this would be a good point for like a five-minute break, if that makes sense.
All right, stand by.
The time is 1037, and we are off the record.
The time is 1046, and we are on the record.
Mr. McDonough, I'm going to turn now to starting after the second Trump administration took office in 2025.
As of February 2025, was Shelly Lowe still chair at NEH?
Yes.
And at some point in February, did Chair Lowe decide to fund all awards approved up to January 20th, 2025, even those that were deemed to be in conflict with the new executive orders?
I'm inclined to say yes, but I'm not sure because my recollection is there may have been awards that came in, these discretionary chairman's grants.
I don't know if she's funding some.
I don't know all.
She decided to fund some awards, even though they were in conflict with the new executive orders.
I'm not sure.
A moment ago, you said you were inclined to say yes.
Objection.
I don't have a clear recollection that she was certainly knowing that Shelley was a very careful person, thinking about it, it would surprise me that she would fund a project in direct violation of an executive order, unless somehow it had been pending.
And I just don't know that I wasn't necessarily involved in the decisions that she was making on these awards.
Got it.
Did Chair Lowe make any decisions in February 2025 that you disagreed with?
On a personal level?
Yeah.
I don't recall.
She never made a decision that you disagree with so much that you brought it to somebody outside of NEH?
objection.
I'm sure I disagreed with funding decisions that she made over her tenure.
I'm also sure that I may have mentioned this to other people, friends, but my view was that, as I said earlier, she was entitled to make those decisions.
At some point after the new administration took office, did you contact, but before you were acting chair, did you contact anyone in the executive office of the president?
In the executive office of the president.
No, I don't believe I did contact anybody in the executive office of the president.
Did you contact anyone at all to express your interest in becoming acting chair?
I was in contact with certain members on the council, Trump appointees, about the leadership, and yes, expressed to them an interest in becoming acting chairman.
And when was that?
Well, look, sorry, let's withdraw that question.
Which members of the council were you in contact with?
I was in contact with Councilmember Keegan Callanan and I'm not sure, Keegan was the person I was most in contact with.
I had contacts, occasionally conversations.
Of course, I had known these people since they'd been put on the council whenever it was in the Trump's first administration.
Keegan, I was usually talking to Keegan.
I'd have occasional contacts with the other Trump council members, Matt Rose, Russell Berman, and William English.
But I don't think other than Keegan I spoke with anybody about becoming NEH chairman.
Okay, so when did discussions with Keegan begin about the possibility of becoming NEH chairman?
I'd say probably the aftermath of the November election in 24.
How quickly after the election?
Weeks.
And did you reach out to him?
Keegan was, I view Keegan as a friend.
We were just in contact on a number of matters.
So I don't have who reached out to who, but the question obviously presented itself.
Well, when you say the question presented itself, can you explain what you mean by that?
I mean, we were expecting, Again, to go back to what happened in the Biden administration, the Biden administration moved quickly to get politicals here and to remove the Trump chairman, John Peaty, I think the very day that President Biden was sworn in.
We were expecting a rapid transition.
Who was going to be tapped to be the acting chairman until somebody could be nominated?
Of course, at that point, you know, we didn't know exactly what the fate of the agency as a whole was going to be.
So those were the types of discussions we were having.
And yeah, I was perfectly willing to serve as the acting chairman.
And did you tell Keegan?
Did you tell Keegan proactively, I'd like to be acting chairman?
I'm sure I did.
And what did he say?
He said that again, it depends on the timeline.
These situations are fluid.
I didn't know what the administration was going to be planning to do, whether or not it would be possible.
I think he said that that would be an option.
And did you make the case to him for why you should be acting chairman?
Objection.
Make the case.
I explained to him why I thought I could do why I thought I would be best positioned to help the incoming administration with its priorities insofar as they extended to NEH.
And why were you in the best position to do that?
Because my political views align with those of the administration.
And Cherlow's political views did not align with the administration.
No.
And so you spoke with Keegan, let's say, in November after the election?
Yes.
Did you speak with him in December?
More than likely.
And did you ask him to speak to members of the transition team on your behalf?
Keegan was no, Keegan was involved in the transition team.
So he was already involved.
But did you say, you know, I'd like you to make the case for me to the transition team?
I don't recall telling him to make the case to the transition team.
I thought I was leaving it up to Keegan to exercise his discretion and judgment about how to approach the subject.
Okay.
And did he give you any feedback he had heard from the transition team about the potential of you becoming acting chairman?
My recollection is that, yes, he did give me feedback, but the feedback was of the kind that he wasn't exactly sure what was, you know, it was a fluid situation.
He wasn't getting information.
It was a bit chaotic, let's put it that way.
So there wasn't any, there's not any concise answer that I can give you.
It was fluid and evolving over time.
He gave me some specific things he told you?
Objection.
About me becoming chairman?
Yes.
I don't recall anything.
So you were speaking with him during December while he was on the transition about becoming chairman.
Right.
And you just testified he did give you feedback that he had heard from the transition team.
Yeah.
But your testimony is you can't remember a single thing he said.
objection.
The only thing I recall is that the sitting here today is that Marianne Carter was was the lead person on the transition team and we're making requests.
The request had to do with getting political appointees to come to the agency.
There were people, for example, that had been in the first Trump administration at NEH who would have expressed an interest in coming back.
We proffered those names.
So there was exchanges of that kind.
But I really don't recall very many specifics.
Did you make any representations to Keegan about sort of your what you'd be willing to do if you became acting chairman?
Objection.
Yes, I made representations.
And what were those representations?
Well, the representations had to do with the fact that I thought the agency, for example, was bloated.
Agency Reduction Plans00:04:29
The previous administration, well, first of all, one has to remember that the previous administration allowed staff to engage in teleworking way beyond President Biden announced the end of COVID.
Much of the workplace was continually empty.
Also, I think we had 60 employees who were remote workers around the country, whom most of us had never even seen.
They increased staff significantly, significant staff increase.
They had created a number of new offices that had never been at the agency before.
And so in that instance, yeah, I thought the agency was bloated and that it could use an overhaul, first of all, by getting people back in the office and reducing the size of the agency.
And by reducing the size of the agency, you mean firing people?
I mean eliminating offices that I thought were superfluous to the mission of the agency.
And what were some of those offices?
For example, the Office of Digital Humanities.
That was not a newly created one, but in time, so many projects that came to the agency had digital components.
It seemed like there was no need for a separate office.
The Biden administration did create an office of outreach here that I thought was superfluous.
They also had an office of data evaluation I didn't think was necessary.
And so you told Keegan, if you make me acting chairman, get rid of those.
Objection.
Well, Keegan wouldn't have been making me acting chairman.
Sorry.
If you told Keegan, if I am made acting chairman, I'll get rid of those.
Objection.
No, no, I don't recall ever telling him that.
Okay.
But you said you would get rid of the bloat at the agency, essentially.
Yes.
Objection.
And that included firing a large number of staff.
Objection.
No, that's not true.
There would be staff reductions, but I didn't have any.
Yeah, there would necessarily be reductions for positions that I thought were non-essential.
Okay.
And so let's fast forward to after the inauguration, January 20th.
Chair Lowe was still in her job, right?
Yes.
And were you disappointed by that?
Objection.
My wish was that the administration had moved with the expediency that the Biden administration had.
Meaning your wish was that they would have relieved her of her duties, you know, within a day or two.
Correct.
And make you acting chairman.
Objection.
I didn't know there was no guarantee that I was going to be made acting chairman at that point.
As I say, it was a process.
So it wasn't a quick pro quo that get rid of her and install me.
There's nothing like that.
There were other candidates that, I mean, one heard rumors that there were other people that were interested in the position, and it necessarily has political aspects to it.
I had no direct communications with the White House.
And so I threw my hat into the ring, so to speak, as a placeholder, as somebody that could carry out the functions, and we left it at that.
At any point after January 20th, did you speak with anyone to try to sort of nudge along the process of terminating Chair Lowe?
Objection.
To nudge along the process of terminating Chair Lowe.
To make it more likely that Chair Lowe would be terminated.
Objection.
I've had conversations with Keegan to the extent that, you know, why hasn't the administration acted as quickly as the Biden administration had to get the president's people here?
Brief Background Calls00:14:08
And in that sense, yes, well, I don't know.
Characterizing that, you can characterize it as a nudge.
I don't know what the proper term would be.
And how did those conversations occur in what platform?
Generally phone conversations.
Any emails?
There may have been emails, yes.
Text messages?
There may have been text messages.
Do you use any messaging applications?
I do use Signal app.
And do you text with Keegan over Signal?
Yes.
Do you text with any other mannered members of the Humanities Council over Signal?
Yes.
And which ones would those be?
It would be Matt Rose and Bill English.
And how frequently would you say you message with them over Signal?
And Keegan, too.
You're talking, what timeframe are we talking about?
That timeframe now?
Sir, so let's start with between January 20th and the date that you became acting chair.
That's difficult to say intermittently.
More than once a week?
Possibly.
Do you still have those text messages?
I do not.
And why is that?
I make it a practice to delete all my text messages.
You mean auto-delete or manually delete?
Well, the lead would be automatically deleted on Signal.
Normally my practice is to delete any text message that I receive, if not immediately after I receive it, but certainly by the next day.
And that applies to all walks of life?
Yes.
If your family member texts you, you delete it the next day?
Yes.
Manually, you go in and click delete?
Yes.
And why do you do that?
I don't like text messages.
But you've already received the text messages for that point.
Right.
I don't like the backlog.
I don't like the I don't think they serve any purpose.
It's basically the same as keeping messages, same as having a conversation at the water cooler with somebody and keeping that message.
Why do I want to keep that?
It's just junk at that point.
I've gotten message, message received, delete.
You're not a sentimental text messenger.
Objection.
I'll withdraw the question.
Thank you.
So you were texting over signal with the members of the Humanities Council.
Were you texting over Signal with anyone else in that time period about issues related to NEH between January 20th and when you became acting chair?
I'm sure, yes, the answer is most likely yes because there would have been former employees, for example, during the Trump administration's first term, that were asking me what's going on, what's the situation.
when is the administration going to move to bring in politicals or to start hiring people?
So yeah, there were a variety of people, a small number, a variety, but I would say a small number of people.
Anyone else who was currently in the administration at the time?
Anyone who was currently in the Trump administration at that time.
Correct.
At the time of the text?
Not that I recall.
Okay.
Did you ever tell any of the members of the Humanities Council about something that Chair Lowe had done during that time that you were upset about?
I don't recall doing that.
Certainly, as I said earlier, there were a number of grants that she made throughout the four years where I would have expressed my displeasure at them to people, but not in that interval that I recall.
And when did you find out that you were going to become acting chair?
Strangely enough, on March the 11th, I believe it was.
Although the decision to make me acting chairman, as I understand it, retrospectively was made on March 10th, the same day in which the president terminated Shelly Lowe's service as acting chairman.
But I only received word about it the following day.
And did you interview with anyone before you got made acting chair?
I recall having a brief phone conversation with the Deputy Director of Presidential Personnel, Trent Morse.
And that person's in the White House.
Yeah, presidential personnel, yes.
I thought you testified a short time ago that you didn't speak with anyone in the White House during those time.
I'm revising my testimony now that you've sheltered my recollection.
Okay.
And his name was Trent Morse, you said?
Yes.
Was he the only person from the White House you spoke to during this time?
Other than Trent Morse, I do not recall speaking with anybody else.
Okay, and when did you speak with him?
In the days or weeks leading up to Shelley's termination and my ascension, if you will.
And how many times did you speak with him?
I believe I had one conversation with him.
Around how long was that conversation?
It wasn't very long.
Could have been as under 15 minutes.
Did he ask you about your political views?
Yeah, of course he did.
And what did you tell him?
I told him I supported the president.
Did he ask you specifically?
Did you vote for the president?
I don't recall if he did.
Okay.
Did he ask you specifically if you supported the president's agenda?
I'm sure.
Okay.
And you said yes?
Yes.
Did he ask you about your views on DEI?
No, I don't recall.
Do you recall talking with him about DEI at all?
It's possible that may have come up, but I don't have any firm recollection.
What else did he ask you on that 15-minute call?
To say at most, it was 15 minutes.
It's a fairly brief call about my background about whether I supported the president and whether I was willing to take the position.
What other questions did he ask you related to whether you supported the president?
Specific questions?
I don't recall.
You don't recall a single one?
Objection.
No.
Sorry, Kev.
Okay.
Okay.
Did the topic of terminating NEH grants come up on that phone call?
No.
Did the topic of terminating NEH grants come up on your conversations with Keegan at any point before you became acting chair?
I don't believe they did.
Okay, when was the notion of Doge coming to Engage Persuasive League?
Soon after I became the acting chairman.
Might have even been on the 10th or 11th of March.
And who raised it with you?
I received a phone call from Steve Davis.
And who is Mr. Davis?
My understanding that Steve Davis was one of Elon Musk's, for lack of a better word, lieutenants, who was placed in charge of the Doge operation.
So Mr. Davis was functionally running Doge.
Is that your understanding?
Objection.
My understanding, yes.
I mean, I don't know what his title or position or anything of that, but my understanding was yes at the time that he was functionally running Doge.
And Mr. Davis, you said called you on the first or second day of being?
Very soon after I became, yeah.
Okay.
And what did Mr. Davis say on that phone call?
He advised me that Doge said they would be sending a Doge team over to NEH, and would I be cooperating with them?
And he said that there were certain memorandum of understanding the detail to detail the Doge people here that we needed to execute.
And would I be willing to do that?
And I said I would.
And he sent the agreements over and we executed them.
And did he say, well, let me ask, how long was the phone call with Mr. Davis?
Well, that phone call was relatively brief, too.
I wonder if it was even five minutes.
Was that the only time you spoke with Mr. Davis?
That was the only time I spoke with him.
And when you said he asked if you would cooperate, what did he mean by that?
No, whether I would help Doge, the Doge team that was coming over and carrying out their work.
And what did he say their work was going to entail?
I believe we had a discussion about what their work would entail.
He may have also said, which parenthetically was also repeated by the Doge team when they arrived here, that they were there to act as consultants to me in making future decisions.
Mr. Davis specifically said that.
I seem to recall that he did say, use the word that they would be there as consultants.
Okay.
And did Mr. Davis mention terminating grants on that phone conversation?
To the best of my recollection, he did not.
So he mentioned firing staff.
He did not.
Did he mention anything at all about the substance of what the Doge team's work would be at NEH?
No.
So your testimony as the phone call was essentially Mr. Davis saying, good to meet you.
We need you to cooperate with the Doge team.
Please sign these agreements.
And that was the end of the conversation.
Objection.
I was saying it was a very brief call.
It wasn't like he set out a roadmap.
This is what they're going to be asking you to do.
It was just they'll show up.
They'll tell you what the game plan.
He did not say this.
I'm saying what the overview was, that they will show up.
They will provide you with advice.
They will look at the agency operations and make recommendations to you.
And when you told Mr. Davis you would cooperate, what did you say exactly?
I don't recall.
You ever speak with Elon Musk?
No, I have not.
Do you ever speak with anyone else affiliated with Doge other than Mr. Davis, Mr. Fox, or Mr. Kavanaugh?
I spoke with another member of the Doge team when they sent the Doge team over to the National Down for the Arts.
I forget the gentleman's name when he came over.
I think he came over with, he may have come over with Justin Fox.
And oh, yeah.
They were retrieving equipment.
They needed to come back to NEH to get equipment.
So Justin dropped this other gentleman off who had worked at NEA.
And I went down to the lobby to get them in the building.
So I believe that's the only other Doge person I've ever encountered or spoken with.
What equipment was that?
Computers.
They were returning laptops, something like that.
Okay.
Can I now start going through some of the discovery that was produced in this case and walk through that?
I'm going to start with what was produced as U.S. 49275, which we'll mark as exhibit two.
I think there's two copies, so they're stuck together.
Exhibit two March.
Do you recognize this email? Yes.
And was there a phone call or meeting with Mr. Kavanaugh that preceded this email?
Sorry, what was the question again?
Was there?
Did you speak with Mr. Kavanaugh before he sent this email?
Expert Field Introductions00:02:49
Yes, I believe I did.
And when would that have been?
This email was sent on March 12th at 3.09 p.m.
It may have been the previous day, whenever they showed up and when we and I met Nate and Justin in the chairman's conference room.
And was it just the three of you in the meeting?
I may have introduced them to Adam Wolfson.
I don't recall if I introduced them to other people, maybe to Pranitha Raghavan.
So the answer is, I believe I may have introduced them to other people.
And what did they say to you about their intended scope of work here, Pointy Met?
They were going to, what they said was, again, they repeated that they were here as consultants, that they were here to take a look at the grants that had been made,
take a look at the contracts, and take a look at the staffing situation, and that they would be assisting me as acting chairman in making decisions to reduce the workforce to eliminate grants and to cancel contracts, ongoing contracts.
Did you push back on any of those plans in that meeting?
Objection.
No.
And when you use the word consultant, how do you think of, how do you define a consultant?
A consultant is generally an expert in one field.
If it's not too redundant, with whom one consults in order to get a perspective on decisions that you want to make.
And were, in your mind, were Mr. Fox and Mr. Kavanaugh experts in the field?
In the field, what field?
You referred to them as consultants, and you just defined a consultant as experts in a field.
So I'm asking what field did you consider them to be experts in?
Their expertise was in, I would say, workplace, certainly workplace structure, workplace.
Their experience certainly was in the area of generating spreadsheets and looking at dollars and figures and where savings could be recouped.
Did you consider them experts in the humanities?
Workplace Structure Experts00:05:32
No.
Do you consider them experts in what constitutes DEI?
No.
Okay.
Looking at this email, you see the final bullet.
It says 322 million remaining parentheses can presumably be Claude Back.
Do you see that?
Yes.
Do you have an understanding of what Mr. Kavanaugh meant by Claude Back there?
At the time, I remember I didn't understand what he meant by clawed back.
I'm not sure I understand at this point, except so at the time, I didn't know.
I think subsequently what he was talking about, there's some website that one could go to to see all outlays.
He was using some figures to come up with that number.
Well, Claude Bachmann, recouped by the government.
Yeah, of course.
And when he says in this email, I also flagged that roughly 25 million in grants that we referenced in our meeting in a separate tab.
What 25 million in grants was that referring to?
I have no recollection.
You don't recall it being discussed in your meeting with them?
Objection.
He clearly says it was discussed.
At this point, I'm not sure what he was referring to.
I am now going to hand you a document produced with Bates number US-41106 which will mark as Exhibit 3 Thank you.
Exhibit Great Martin.
Thank you.
Do you recognize this email?
Yes, I recognize.
And you see where Mr. Wolfen says, as discussed, I've copied below the link for the award spreadsheet created by Brett that the program directors used for the historical review of NEH's grants since January 2021.
Yes.
And what historical review was that?
This was the historical review that Chair Lowe instructed the division directors to undertake in the wake of the president's executive orders in the area of DEI, gender ideology, and environmental justice.
And is that when Mr. Wolfson says, as discussed, what was discussed in that meeting about this spreadsheet, do you recall?
I don't, again, I don't have any firm recollection of these events from whatever it is, nine or ten months ago.
But I mentioned that what we told them was that we had already begun the process of scrutinizing awards in line with the president's executive order and that we would provide them with that so they could use it as they saw fit for the work that they were doing.
And the three categories you mentioned, one was DEI slash DEIA, the second was gender ideology, and the third was environmental justice.
Is that right?
Yes.
I believe you've already given a definition for DEI.
How do you define gender ideology?
Objection.
That was defined for us in the President's Executive Order, which I don't have here before me, but we were working off of that definition.
So your definition for these purposes was solely the definition in the executive order.
Objection.
I was trying to, in my role, I was adhering to the definition and the guidance provided in the executive order.
Yes.
And how about environmental justice?
How do you define environmental justice?
In the same way.
I was working off of the executive orders that the president promulgated.
And was there a specific definition of environmental justice in that executive order?
I don't recall the wording of the order, but whatever it was, that was the roadmap we were attempting to follow.
Well, how would you, in your personal capacity, define environmental justice?
objection?
I would define it as crossing the line into advocacy and violating the agency's long-standing prohibitions against funding projects that are politically tendentious in nature.
In this instance, you know, we have received, we have received grant applications.
For example, I recall we received a grant application entitled Hunger Studies.
And you took a look at the application and it had a very activist component.
Climate Change Debates00:11:40
It was going to have university students engage in lobbying and letter writing campaigns to their state and local and federal representatives, things of that nature.
And you've used several times the phrase politically tangentious.
Is that right?
Can you explain what you mean by that?
Sure.
A scholarship can have a scholarship can have a point of view.
But when we, for example, fund educational programs, teaching programs, we take a look at such things as who the participants are going to be, what the reading lists are going to be, is there a diversity of opinion, or is it all going to be a one-way street?
So I think we were looking for environmental justice programs that's what I mean by tendentious, that they don't allow for a divergent point of view.
That there continue to be divergences among scientists about the climate.
There continue to be divergences about matters that are unresolved.
And we try in the funding because one of our statutory requirements is to promote taxpayer confidence in the wise use of federal funds, that the agency is not becoming funding, rather expending funds in a tendentious fashion, a politically tendentious way.
And so if I understand this exercise, NEH staff went through and they rated every single active grant as low, medium, or high for these three categories, is that right?
Yes.
With the idea being that under the president's executive orders, anything rated as high would be terminated?
Objection.
Objection.
I'm going to say, if anything, if the NEH staff thought that something, it's not as simple as that, because, but I would say, generally speaking, yes, I would agree with that.
If it was rated high by the staff, more than likely, it would be, we view it, we would want to terminate it, yes.
In your view, was that it was appropriate to terminate those under the executive order?
Yes.
What about medium?
Well, this is why I had to take a second look at the applications themselves or the grants that had been designated, medium or low.
Got it.
And so the last sentence of this email says, we've set aside a block of time Monday morning to finalize the list for OMB, is that right?
Yes.
And who told you that you had to send the list to OMB?
Oh, that was a requirement from OMB.
OMB also issued guidance on the executive orders, as I recall, to all the federal agencies, and they gave us a deadline for conducting the reviews and submitting the information to them.
So Fox and Kavanaugh never said anything about sending it to OMB.
That's correct.
Did you speak with anyone at OMB about this project?
No.
Okay.
I'm going to ask that we now, Nina, on the spreadsheet club, a spreadsheet, a spreadsheet that was attached to the email we just looked at, which is produced as administrative record six.
And we'll mark this as Exhibit 4 later.
Exhibit 4, Mark?
I won't ask you about the upcoming UFC fight.
going to the White House soon.
OK.
Mr. McDonald, can you see the spreadsheet that's on the screen?
Take a look.
Yes.
do you recognize the spreadsheet uh recognize um there's so many spreadsheets i don't i don't I couldn't tell you which one at which date this was, but it looks like one of the spreadsheets that was in play to identify grants.
If I represent to you that this is the spreadsheet that was attached to Mr. Wolfson's email that we just read, I would accept that, yes.
Okay.
Thank you.
And that means this would be a spreadsheet that was prepared by NEH staff to send to OMB, is that right?
NEH staff, yes.
Okay.
And we're in the education tab now.
Nina, could you scroll to row 71?
Do you see in bold, there's a, and we can expand it into columns if you need.
There's a grant to the American Historical Association there highlighted in bold.
Yes, it's difficult to read.
Oh, no, it's a little bit better.
And can you read the project description over in column O there, if you're able, into the record?
This is like at the optometrist.
Let me see if I can manage it.
The American Historical, that's what you wanted me to read.
Yes, please.
Yes.
The American Historical Association proposes a three-week combined format summer institute for 25 higher education faculty on U.S. environmental policy in responses to environmental changes from the early 19th century through the 20th century.
That's fine right there.
I won't make you read the whole thing.
Thank you.
And you see in the column over in column U, it's rated as high-primary aspect of the project and or its activities.
You see that, Mr. McDonald?
I do, yes.
And what does high mean there?
It means that the staff identified it as something that would almost certainly be in conflict with the presidential executive order.
And why would it be in conflict with the executive order?
Well the staff would have made that determination.
I can't speak for the staff, but I can speculate if you'd like.
Well, Mr. McDonald, you were the acting chair at the time that this was sent to OMP.
Yeah.
Objection.
So it's fair to say you stood by the ratings in something that was sent to the White House like this.
Objection.
It was sent to OMP?
Yes.
Okay.
So why do you think it was appropriate that this was tagged as high?
Objection.
Well, the part that I didn't read talks about emissions driven climate change.
And as I say, there is still discussion in the scientific community about the effects of emission-driven climate change.
And I think the executive order that the administration's position was that it's particularly given that this was funded under the previous, but the Biden administration was that the funding should not continue because it violated the administration's views on this very controversial issue.
Well, these were tagged specifically with respect to violating three executive orders, right?
Yeah.
So which executive order did this violate?
I would say most likely on the environmental justice.
Okay, so can you explain to me how this related to, quote, environmental justice?
Objection.
I think the I think it appeared, it would have appeared that it was continuing a priority of the previous administration,
which was not a priority of the Trump administration, in the area of devoting limited NEH funds to topics such as climate change, which up until the advent of the Biden administration, the agency had never paid attention to.
Mr. McDonald, the executive order was specific to environmental justice, right?
Right.
So can you give me an answer as to why this related to environmental justice?
Depends on the definition of environmental justice.
This could be identified as a project which would lend humanities research to the support of environmental justice causes.
And that when you say environmental justice causes, you're referring to climate change?
Yes.
And so your testimony a moment ago was that you didn't think it was appropriate for NEH to be funding a topic that treats climate change as sort of a fact because it's still under dispute.
Did I get that right?
Yes.
Objection.
And so any topic, any grant that took a view that climate change is factually happening, not appropriate to fund.
Objection.
It was a change in administration priorities.
It was not appropriate to fund under the Trump administration.
No.
Because it was taking a view that climate change is a fact that it's happening when that is actively under debate, in your view.
Objection.
Could you rephrase the question?
Your view is that it was not appropriate for NEH to be funding this because climate change, whether climate change and how it's happening is a debated question, and this is taking a view that climate change is in fact happening.
Objection.
I don't know if it's like without going into the application, I can't say what it's going to be doing.
They're just saying, just from that little part that we've read, I can see how one could come to that conclusion.
Okay.
DEI Grant Rationales00:15:27
I'm going to move on to a document that was produced as bait stamp US 839.
We'll mark this as Exhibit 5. Exhibit 5 mark.
Sorry.
Sorry.
This is an email from Justin Fox to you and Adam Wolfson copying Nate Kavanaugh on March 17th at well, on March 17th, is that right?
From Justin Fox to me and to Adam copying Nate on March 17th, correct?
And the subject line is NEH review?
Yes.
And whose review is that referring to?
Strike that question.
In the first bullet, under...
You see where it says grants?
Yes.
In the first bullet, you see where Mr. Fox wrote, we reviewed all active grants for DEI involvement and marked them accordingly.
Yes, I see that.
And who is we there?
I believe that is referring to Mr. Fox himself and Nate Kavanaugh.
So is this indicating that they did their own review of NEH grants for DEI involvement, separate and apart from that review we were just looking at that NEH staff did?
Yeah, I believe that's the case.
And do you know why they did that separate review?
Objection.
I do not know why they did that separate review.
No.
But they chose to do that review, right?
Correct.
You didn't ask them to do that?
No.
Okay.
If I may elaborate, just when I say no, I mean, in the discussions of face-to-face, they told us they were going to be doing generating their own things, but it wasn't like it was, it wasn't in this instance that I said do it.
They said they were going to be doing things of this nature.
Understood.
But you weren't sitting at a meeting and out of nowhere.
You said, Justin and they'd like you to do the separate review for DEI.
That's correct.
Okay.
Did Mr. Fox or Mr. Kavanaugh ever give you their understanding of the meaning of DEI for purposes of this exercise that they did?
No.
Did you have an understanding of how they were defining DEI?
Objection.
Did I have an understanding of how they, for what purposes, for generating these sheets?
It appeared to me that they may have been conducting word searches in order to identify DEI grants that were open.
Do you know what word searches they might have been conducting?
Yeah, it's only speculation, but I would speculate that they used the word diversity, equity, and inclusion, the words.
Anything else you would speculate that they included?
No.
Okay.
And then going back to this email, do you see where Mr. Fox wrote, this is the third sentence of that same bullet, pages, sorry, page 2 to 89 show details for active grants which were flagged as having DEI involvement only?
Yes, I see that.
And when he says flagged, that means flagged by him, right?
Yes.
Okay.
I'm going to now put up on the screen what we'll mark as exhibit six, which was produced in Discovery as US 936.
And Mr. McDonald, I'll represent to you that this is the spreadsheet that was attached to that email.
Do you accept that?
I do.
Okay, thank you.
Just to clarify, are we, is this going to be exhibit six every page on the entire lookbook?
We're only going to be showing the grant detail tab.
Okay.
So just, but I, can we just mark the whole file as exhibit set or not really?
That's what I was asking.
If you want to mark the entire file.
Let's just mark the entire file as exhibit set.
Thank you.
Thank you.
So do you see the tab at the bottom there that says NEH grant detail?
Yes.
And your understanding is it was Mr. Fox and or Mr. Kavanaugh who put this spreadsheet together.
Yeah, this is their spreadsheet.
Right.
Yeah.
The one that Mr. Fox attached.
Yeah.
Nobody at NEH put this together.
That's correct.
Okay.
Looking at the first column, you see where it says, quote, yes slash no DEI?
Yes.
And what do you take that to indicate where then it says yes underneath that for some grants?
It means that they had identified that there was a DEI component to the open award.
And it was Mr. Fox or Mr. Kavanaugh who wrote yes there, is your understanding?
Yes.
Okay, sure.
And then do you see the column, I believe it's column K, that says DEI rationale?
Yes.
Do you see that the first row, it says NEH identify DEI involvement?
Yes.
And do you take that to mean that on the other spreadsheet we were just looking at the ones in OMB, NEH staff had identified this grant as having DEI involvement?
Yes.
Objection.
And so the rows that don't say NEH identify DEI involvement, is it a fair inference that those are ones that NEH staff did not mark in that separate spreadsheet as having DEI involvement?
objection.
I'm sorry, can you repeat the question?
So if we scroll down, Nina, just a little bit, you'll see there's a handful.
Like there's another one.
I see what you're saying, yes.
So anyone that doesn't say NEH identified DEI involvement, it's a fair inference that those are ones that were not marked in that high, medium, low spreadsheet.
Yes, I agree.
Okay, thank you.
Do you know who drafted these DEI rationales?
No, I do not.
Do you know anything about the criteria that were used for drafting these DEI rationales?
No.
Okay.
Can we scroll to row 561, please?
Which should be highlighted in yellow.
Do you see the row highlighted in yellow there involving a grant involving the Modern Language Association?
Yes, I do.
Okay.
And because the DEI rationale there is not, you know, NEH identified, it's a fair inference that NEH staff did not identify this grant as having DEI involvement.
Objection.
In that other spreadsheet we were just looking at.
Yes.
Okay.
And you see in the first column, though, it says yes for yes-no DEI.
I see that, yes.
Okay.
Can you read into the record, Mr. McDonald, the DEI rationale for this grant in column K?
Column K.
The one that says DEI rationale.
Thank you.
The Modern Language Association's initiative aims to align humanities courses with career outcomes for underserved students, thus relating to DEI.
And can you, you don't have to read into the record, but can you take a moment to read the grant description in column M there?
Yes.
The Modern Language Association, Parens MLA, close parens, requests $60,000 over two years to support the creation of a virtual professional development workshop series to prepare humanities instructors at small and mid-sized institutions to align humanities courses in language and literature with career-minded outcomes that benefit underserved students.
Mr. McDonald, you don't have to read the rest into the record.
You're welcome to take a moment to read the rest yourself if you would like.
Yes, let me do that.
Just let me know when you're ready.
I will.
Alrighty.
Do you agree based on that grant description with the, Nina, if you could go back over to the DEI rationale?
Do you agree that this grant involved DEI based on that grant description you just read?
No.
And so if this grant was terminated on the ground that it did involve DEI, that's not something you would agree was an appropriate basis for termination?
Objection.
If it were terminated on that grounds, again, without knowing more about, we have the poll description there.
You might have to drill down into the application to see how they defined underserved students, about whether or not there were any preferences involved.
So I have to be, I want to have to ask the caveat, but just on the facial, the information up there, it's not enough.
And so yes, I would say it should not be terminated for DEI.
Thank you.
You're welcome.
Can we go to row 169, please?
I'm sorry row 100.
Do you see highlighted in bold there's a grant Nina if you could scroll over to the University of California at Riverside.
Yes.
And you see that that was a grant for it appears to be, Nina, if you could scroll over a little bit more until we get to some dollar amounts.
Oh, they're not in there.
Oh, sorry, it's in the grant.
My mistake.
You see in the grant description, it's a grant for around $321,000.
Yes, I see that.
And you see that the grant was to, quote, digitize mid-20th century African-American newspapers from Los Angeles and the Bay Area and contribute them to the National Digital Newspaper Program.
Yes.
Okay.
Mr. McDonald, I'll give you another moment to read the full description there if you'd like.
Thank you. I'm ready.
Okay.
Nina, if we can go back over to the DEI rationale.
Mr. McDonald, can I ask you to read into the record the DEI rationale?
The request for funding to digitize mid-20th century African American newspapers contributes to inclusivity by preserving and sharing underrepresented OASIS.
Mr. McDonald, do you agree that this grant involved DEI?
I do not agree.
Okay.
So if this grant was terminated on the ground that involved DEI, you would agree that that's not something that was an appropriate basis for termination?
Objection.
If the grant had been terminated on that basis, I would agree.
Okay.
Nina, now can we go to Rule 169?
And if we could scroll over, Mr. McDonald, do you see there's a grant highlighted in bold to the University of Minnesota?
Yes.
And you see that this grant, and I'll just read it, the grant description, you see it says, this project will pilot a process to digitize and display flat books such that their interactive nature is preserved for years.
You see that?
I do.
And I'll give you another moment if you want to read the full grant description.
Nina, can we go over to the DEI rationale?
Can I ask you to read that into the record, Mr. McDonald?
This initiative aims to address a gap in current digitization practices by prioritizing the preservation of interactive nature in historical materials, promoting inclusivity in digitization efforts.
Mr. McDonald, do you agree with that DEI rationale for this grant?
No, I do not.
Do you agree that it's fairly ludicrous to say that this grant involved DEI?
I would agree that it mischaracterizes the grant.
Mr. McDonald, so if this grant were terminated on the ground that involved DEI, that's not something you would agree was an appropriate basis for termination?
Objection.
If the grant were terminated solely on the basis that it had violated the executive order on DEI, yes, I would agree that that was not appropriate.
And stepping back, do you agree that Mr. Fox and Mr. Kavanaugh identified a lot more grants as involving DEI than NEH staff had?
Yes.
And Nina, if you could just scroll to the very bottom of this list, and then just scroll over to the left once you get there.
Spreadsheet Methodology Flaws00:09:16
Do you see that number 1057?
Yes, I see it.
So that, do you agree that that indicates that Mr. Fox and Mr. Kavanaugh identified 1,057 grants as involving DEI, active grants?
That appears to be the case, yes.
Okay.
And that's a pretty high percentage of the total 1440 that ended up being terminated, give or take?
That's correct.
Okay.
Mr. McDonald, do you know what process Mr. Fox used to identify grants as involving DEI?
No.
Okay.
It's another spreadsheet.
Nina, can we pull up 61583 spreadsheet?
Okay, and then go to sheet one, if you could.
And we'll mark this as what's sex?
We'll mark this as Exhibit 7.
Mr. McDonald, have you ever seen this before?
I don't believe I have, no.
And if I represented to you that this is a document produced in Discovery that reflected chat GPT inquiries or queries that Mr. Fox did, would you have any basis to question that representation?
objection.
No, I would not.
Okay.
So for the sake of the rest of my questions on the spreadsheet, I'll ask you just to assume that representation.
And if it's wrong, then that's on me.
And your answers won't mean much if it's wrong.
Pardon me.
Starting with sheet one, do you see where it says, in every row really, from the perspective of someone looking to identify DEI grants, does this involve DEI question mark?
I do.
And do you see that it says respond factually in less than 120 characters?
Yes, I see that.
And then it says begin with yes or no, followed by a brief explanation.
Yes, I see that.
And then do you see in column X there, or right under column X, there's a description of various grants?
Yes.
And so does it appear to you based on this that Mr. Kavanaugh was, or Mr. Fox, I should say, was asking ChatGPT, it was giving ChatGPT each project description and asking it to answer yes or no whether it involved DEI?
I have no basis saying what information he was feeding into GTPT, where he was getting his descriptions from, what aspects of the, yeah, I just don't know.
But if you repeat the question, I'll try and answer it again.
I'll move on, Mr. McDonald.
Can we go over to, is it sheet two, I think, or sheet three, maybe?
And then row 802, if we could.
Okay.
And then if we can scroll over, do you see the row that's highlighted there?
Yes, I do.
And you see that this involves a grant to the Modern Language Association?
Yes.
And I'll represent to you that this is the same grant that we just identified on that prior spreadsheet.
Very good.
Okay.
And then do you see where it says yes, the column starting with yes?
Yes.
Sorry, Nina, do you mind scrolling over?
And then do you see that it says, yes, the Modern Language Association's initiative aims to align humanities courses with career outcomes for underserved students, thus relating to DEI.
I see that, yes.
And is that the same, is that the same explanation that we saw in the DEI rationale column before for this grant?
Appears to be the same, yes.
Okay.
And so you would agree based on that that it appears to be the case that Mr. Fox copied the results produced in this spreadsheet over to that spreadsheet that he then sent to you, stating that those are the ones that were flagged for DEI involvement.
Yes.
Okay.
If I represent to you, Mr. McDonald, that the same will be true for the University of Minnesota and University of UC Riverside grants, accept that representation.
Yes.
Okay.
Nina, if we go to row 767.
Okay.
This will be a grant we haven't looked at yet.
Nina, can you scroll over?
And can you open that box that says the documentary tells the story?
Okay.
Mr. McDonald, do you see where in describing this grant it says the documentary tells the story of the Colf X massacre, the single greatest incidence of anti-black violence during Reconstruction, and its historical and legacy for black civil rights in Louisiana, the South, and in the nation as a whole?
Yes.
And then do you look at the next column over, you know, if we could pull out.
Does that indicate that this was marked as yes or no for DEI?
It indicates that it was marked yes for DEI.
And can you read into the record the rationale given?
The documentary explores a historical event that significantly impacted black civil rights, making it relevant to the topic of DEI.
Do you agree that this grant involved DEI?
No, I do not.
And why don't you agree with that?
Because a historical examination of such an event of anti-black violence is not pushing an agenda of DEI as I understand the meaning of that acronym.
Nina, can you pull up row 779 and if you could go over to the description again and open it up where it says the feature documentary.
Mr. McDonald, this is describing another grant.
And you can see it says the feature documentary film, Diamond Diplomacy, examines how two vastly different cultures came to embrace baseball with different styles but equal passion, arguing that the nation's shared obsession with the game has been instrumental in healing wounds caused by World War II and the 1980s economic standoff between the U.S. and Japan.
Do you see that, Mr. McDonald?
Yes.
Okay.
And then Nina, if we could just look one more row over.
And do you see whether this was marked as yes for DEI?
It was marked as yes.
And can you read into the record the rationale given?
The film explores the role of baseball in strengthening national identities and healing wounds, which can be related to diversity, equity, and inclusion efforts.
Do you agree that this grant involved DEI?
I do not agree.
And why don't you agree?
Based on this description, I have no basis on which to conclude that the grant money would have been used to advance a particular social, a political point of view that I would normally associate with DEI as it was practiced under the Biden administration.
You would agree that a love of baseball is not DEI.
I would agree.
Okay.
Mr. McDonald, taking a step back, do you believe that the methodology that we see on the screen is an appropriate methodology to identify which NEH grants should be terminated?
Inappropriate Identification Lists00:15:14
Objection?
No, I do not agree.
I mean, I'm sorry, could you rephrase that?
Sure.
Do you agree that the methodology we were just looking at on the screen is not an appropriate methodology to identify which NEH grants should be terminated?
I agree that it is not an appropriate methodology.
And why is it not?
To terminate grants on the basis of DEI.
Okay.
And so if this was the basis, hypothetically, upon which grants were terminated, this methodology, that's not something you would have signed off on.
Objection.
Yes, it is a hypothetical question since it was not the basis.
But if it had been the only basis, it's not something that I would have signed off on.
Okay.
And you would have been very much opposed to terminating grants based on this methodology.
Objection.
Again, it's hypothetical.
If that were the case, I would have been opposed, yes.
Okay.
Let's now go to, I'm going to hand you an email this time.
We'll mark this as exhibit eight.
Sorry?
Yes.
Okay.
The Exhibit 8 March.
Thank you.
Mr. McDonald, I'll direct your attention first to the email at the very bottom of this exhibit.
So I think three pages in.
Do you see that?
So we're beginning page three.
I'm sorry.
Bear with me a moment.
Yeah, sorry, page two, the email at the bottom of page two.
Page two.
Too okay, I'm there.
And you see, this is an email from Justin Fox to himself and copying you and Mr. Wolfson and Mr. Kavanaugh on March 18th.
Yes.
And this email, Mr. Fox says, let us know when works best for a meeting tomorrow or Thursday to walk through this.
Do you see that?
I do.
And by this, is he referring to the spreadsheet we were reviewing a few minutes ago where he had attached the results of their quote review for DEI?
Objection.
Just on the basis of the exhibit, I'm not sure what he's referring to.
Okay.
So if you look down to the third page, Mr. McDonald, do you see the email at the bottom there for March 16th?
Yes, I do.
And you see that's the same email we looked at a few minutes ago.
Sorry, I was reverse order.
Yeah.
I see.
And so he's then following up on that email saying, can we walk through this at a meeting?
Is that right?
That's true.
But in the email on Sunday, March 16th, he mentions grants census, by which he meant staff size and contracts.
So there were three things that were in the air at that time.
I see.
And your understanding is he wanted to walk through all three things?
I don't recall specifically, but we were discussing all three of them at virtually the same time in these meetings.
Okay.
And then if you just look back up to the top of the chain, it looks like you found a time to meet.
Is that right?
Yes.
On March 19th?
Yes, Wednesday, March 19th, because that was also the week we had a two-day National Council meeting on the 20th and 21st.
And what at that meeting, who was present at that meeting?
At this meeting.
The meeting with Mr. Fox, yes.
I would imagine that certainly I was there and imagine Adam Wolfson.
Was Mr. Kavanaugh there?
I'm not sure if he was or not, to be honest.
I have no clear recollection.
Nobody else, though, besides maybe him?
I would agree with that more than likely.
Okay.
And at that meeting, what did Mr. Fox say to you with respect to that spreadsheet that he had attached on March 16th that we went through?
Where he said we reviewed all active grants for DEI involvement and marked them accordingly.
I don't recall.
Do you recall anything he said about grant terminations at all during that meeting?
I don't.
Did he say anything to the sentiment that NEH staff in their high, medium, low review had identified too few grants as involving DEI?
I don't recall him saying anything like that.
Did he say anything to the effect that his spreadsheet that he sent would become the operative list to work off of?
Objection.
I don't recall him saying anything like that.
Do you recall anything you said to him with respect to grants in that meeting?
I don't recall saying anything to him at that specific meeting.
Do you recall anything that anybody said at that meeting?
I do not.
Okay.
Was it an in-person meeting?
To be honest, I don't even recall.
I believe it was an in-person meeting.
Okay.
I'm going to now pull up an email that is Bates Stamps US 61502.
This will be exhibit 9.
Thank you.
And is this an email from Brett Bobley to Pranita Raghavan on copying you and Mr. Wolfson on Wednesday, March 19th, 2025?
Yes.
And you see it says, Mike and Adam have completed their work reading through our spreadsheet of awards going back to 2021 to determine which are potentially in conflict with the EOs.
Yes.
Do you recall conducting that work with Mr. Wolfson?
Yes.
And is my understanding right that you went through that high, medium, low spreadsheet that NEH staff prepared and you personally reviewed it to assess whether you agreed with the assessments in there?
Yes.
As I recall, we reviewed it over devoted a significant amount of time over two days to review that spreadsheet.
And when you say over two days, was that immediately before this March 19th email?
I imagine it would have been, yes.
So help me understand at the same time you're reviewing this NEH staff spreadsheet, Mr. Fox had sent you a different, much broader spreadsheet three days earlier.
So why were you working off of this spreadsheet when Mr. Fox was sending you a much broader spreadsheet at the time?
Well, first of all, we were under an obligation to provide something to OMB.
I suppose that was the chief rationale.
We had already begun the work and we wanted to complete it and comply with the OMB directive.
Any other reason?
No.
Did you believe this spreadsheet reflected a fair and accurate assessment of which grants involved DEI and environmental justice and gender ideology?
As fair as we could make a yes.
And you believed that you, in submitting that to OMB, you believe you were submitting to them what would be an appropriate list of grants to terminate?
That's correct.
Okay.
And if I represent to you that this spreadsheet had 647 grants that NEH staff as reviewed by you and Mr. Wolfson marked as appropriate for termination, any reason to doubt that number?
No.
Okay.
And 647 is less than half of the 1440 that were ultimately terminated.
1440, which were terminated not solely for DEI, but for other reasons.
Yes.
Okay, I'm going to now hand you a document marked US 41372.
Which will be exhibit 10, I believe.
Exhibit 10, March.
Sorry, before it would be possible to take a break maybe in five minutes.
You know what?
This would probably be a better time to break right now.
Right now?
Yeah.
All right.
Sure.
Thanks.
Okay, you can go off the record.
All right, stand by.
The time is 1210, and we are off the record.
Time is 12.54, and we are on the record.
Okay.
Mr. McDonald, oh, can we get the screen back on too?
Yes.
Before the break, you'll recall we were going through a series of emails from mid to late March relating to the back and forth between you and Mr. Fox.
Does that sound familiar?
Okay, so now we, um, what we've marked as Exhibit 10 is an email, um, with the bait stamp 41372.
Do you have that in front of you?
Yes, I do.
Okay.
And you'll see this is an email from Justin Fox to you, Mr. Wolfson, to Mr. Kavanaugh, and to Mr. Fox himself on March 19th, 2025.
Do you see that?
Yes.
Okay.
And he writes in his email, Mike slash Adam, that's referring to you and Mr. Wilton?
Yes.
Okay.
See attached updated spreadsheets in their descriptions below.
And so he was sending you a spreadsheet here, right?
Yes.
An attached spreadsheet.
And you see he says under NEH, active grants marked as NA shows all active grants, i.e. not expired, which are flagged as NA for DEI by NEH personnel, but we flagged for DEI involvement.
Yes.
And who is the we there?
I believe that would be Mr. Fox and Mr. Kavanaugh.
Okay.
And then he similarly repeats below, flagging that all grants in the attach were flagged as NA by employees and we flagged for DEI involvement upon review.
So that's again, we as Mr. Fox and Mr. Kavanaugh.
Correct.
Okay.
And then he says, so to clarify, you have not reviewed any of these grants.
What does he mean by that?
It means that neither Adam nor I looked at these NA not applicable grants in the spreadsheet because we were only looking for ones that may have violated the executive orders, particularly with respect to DEI.
Right, but these were ones that they also thought violated the executive order for DEI, but you hadn't reviewed them yet.
Is that right?
Yeah, I'm sorry, I was addressing the second part of your question.
We hadn't reviewed them.
That's correct.
Okay.
And he says, once we receive your input, we can consolidate to one list of grants using the Excel from Brett and make appropriate next steps.
And who's the Brett there for the record?
It would be our chief intelligence official at the time, Brett Bobley.
You mean chief information?
I'm sorry, chief information.
What did I say?
If you guys are doing things that we should know about.
Intelligence.
Sorry.
And when he says we can consolidate to one list of grants, am I correct in taking that to mean that they would take this list of NA grants, let's call them the NA list, consolidate that with the list that you all had put together and that was sent to OMB to produce one list of grants.
Is that right?
That seems to be what he's saying, yeah.
And do you know what he meant when he said and make appropriate next steps?
Just continuing on with the process.
And was it your understanding that this one consolidated list of grants would be the grants slated for termination?
I don't think on March 19th I was thinking about final lists for turbid.
I had no idea how many iterations there would be or what would come next.
I was focused at that point on the two-day council meeting.
It was going to be the next day.
But you understood that the process you were undertaking here was specifically to identify grants for potential termination.
Right.
There would be an end point at which we would do that.
But the list that would be produced, you understood was a list of grants to consider to terminate.
Yes.
Okay.
Let's pull up the spreadsheet that was attached to this, which is US 41427, which will make Exhibit 11.
And sorry, when I say spreadsheet, I mean the whole Excel file will make exhibit 11.
And we're in the active grants tab.
Do you see that?
Mr. McDonald?
Yes, I see.
Okay.
And if we look at the top left corner, you see it says active grants flagged as NA.
And so did you understand that?
Is this what you would come to later refer to as the quote, the NA list?
Yes.
Okay.
And if we could go to row 223.
And do you see there the same Modern Language Association grant that we've been talking about on other spreadsheets today?
Yes.
Council Member Discussions00:17:05
Okay.
And if we go back over to the left, do you see there's a column that says DEI rationale?
Yes.
And does that appear to be the same DEI rationale that we saw on the prior spreadsheets we looked at?
Yes.
Okay.
And if I represent to you that if we did the same thing with the University of Minnesota grants and the UC Riverside grants, that the same thing would show up.
Any basis to question that?
I would have no basis to question that.
Okay.
if we could scroll scroll down to the bottom of the spreadsheet please sorry to around row 451 so not the bottom Can you scroll up a little bit?
Okay.
And you see there on that row, 51, the total award amount listed is 47,409,330.
Yes, 47,409,330.
I see it, yes.
So that was the total dollar amount in grants that were on this NA list that Mr. Fox put together?
Yes, sir.
Okay.
I'll now hand you an email thread starting with bait stamp US 50609, which will mark as exhibit 12.
Exhibit 12 March.
Okay.
And then if we could go four pages into the one that says 613 at the end in the bait stamp, maybe five pages?
Yes.
I see.
And you see an email from Mr. Fox to you dated Saturday, March 22nd, 9.40 a.m.
Yes.
And he says, how did the meetings go last week go?
Yes.
And what meetings was he referring to?
He's talking about the two-day meeting of the National Council on the Humanities.
And if we go back up one email on the chain, which is on the prior page, you see an email response from you to Mr. Fox later that same morning at 10.14 a.m.
Sorry, which page are we on?
612.
Yeah, I'm getting it.
Okay, got it.
Yes, yes.
I'm sorry.
Thank you.
Yes, I've got it.
Sure.
So you responded, hi, Justin.
The council meeting went well.
M- No problems from the holdover Obama-Biden members.
Thanks for asking.
Yes.
And what did you mean when you said no problems from the holdover Obama-Biden members?
I probably had a lot of things that were on my mind.
I don't recall, you know, the specifics at the time.
But there was an obvious cleavage on the council, as occasionally happens, between we had holdover appointees.
The council members' terms, which are assigned to seats, by the way, are staggered.
And they're supposed to be six years, but council members serve until they resign or are replaced.
We had holdover Obama appointees from 2011, and we had a few Trump, we had about six Trump appointees, and we had Biden appointees.
And there were obviously ideological cleavages, particularly on questions having to do with advocacy and grants.
And so I say no problems.
I don't recall off the top of my head which applications were up for consideration at these meetings.
So that was one factor which I could have been referring to, that there may have been some grants, which I don't recall at this point, that might have provoked vibrant discussions, let's put it that way, between Trump and between the Republican and Democratic appointees to the council, maybe to simplify it that way.
There's also the fact that at that time, as you will recall, the Doge was in the news a lot, and they had already been at USAID.
I believe at that time they were at the Institute for Museum and Library Services.
And the Doge team had visited NEH.
So I assume it's not simply me, but all the staff members in the program divisions form relationships with council members because they will sit on committees when they're reviewing grants here at the two-day meeting.
So they will get to be friends or to know the division directors and also program staff.
And I'm sure there are all sorts of back-channel communications among NEH staff with council members with whom they become friends.
And I think people were concerned also about what the arrival of the Doge team may have been.
So no problems just meant that the meeting went off frictionless.
And was the topic of Doge coming to NEH discussed at that meeting?
I brought it up in my opening remarks to the council.
I mentioned that a Doge team had arrived and that we'd met him.
And I reiterated to the council members that when they came, they stressed that they were here to provide consultant services to me as acting chairman about the future direction of the agency.
And any questions come up about what they would be doing?
From the council members?
I don't recall that anybody did ask any questions about that at the time.
Did you mention anything about the process you were undertaking to identify grants for termination?
I may have said something that we were, I don't recall specifically, so it's just speculation.
I think I kept the remarks brief and just that they're here, that we had met them, we were in discussions, and that they were here to advise me on future actions regarding the agency's activities.
And you had mentioned earlier that you kind of had a standing texting and signal messaging relationship with several members of the council, is that right?
Objection.
Yes, that's correct.
And were you texting and exchanging signal messages with them in relation to this meeting of the council?
I don't recall offhand, but again, if I were to speculate, I'd say it's probable that I had exchanged texts.
But again, this is, I think it's been a common practice among agency heads that in preparing for a council meeting, they're always back-channel discussions with council members that are favorable to the initial, to get, to line them up to be in favor of initiatives that are going on or to tell them, you know, if you have a Republican, you have a Republican agency head,
contact Republican members on the council and they will be back.
And so I don't remember specifically, but it's likely that, yes, I did have exchanges with them.
And before I was asking about texts and signal messages from the period from inauguration to, or from the election, I should say, until you became acting chair.
Yes.
So sort of picking up from that point, did you ever text or exchange signal messages with those council members with respect to Doge's involvement at NEH?
Yeah, it's likely that I mentioned that Doge had come, but at this point, this was still in the early stages.
I'm not sure that I would have had that much to tell them, except that we were reviewing open grants.
So throughout the grant termination process, so let's say throughout, till the end of April, did you text with them at any point during that process about what was going on with the grant terminations at NEH?
I can't say for sure.
I may have.
I don't have any specific recollection.
My main recollection is that it was just we were dealing with council meeting, preparation, and the after work that has to be done with the council meeting.
At the same time with Doge, we were also engaged in very serious discussions about reduction in force and about contract cancellation.
So it just wasn't focused on terminations as the be-all and end-all.
We were juggling a lot of balls.
But you understand my question is not specific to this time period, this week around the council meeting, but in general, March, April.
Did you ever text with them, the council members, about the grant terminations at NEH?
I don't recall ever communicating with council members on the texting apps about the cancellations.
I'm sorry.
This was something that was being done in-house, and it wasn't part of the council members' responsibilities to get involved in activities of that kind.
Okay.
All right.
If we go back to, I'll now hand you What we'll mark as exhibit 13, which is an email thread starting with US 50704.
And thank you.
Got the sticker ready.
Is it a 13 March?
And Mr. McDonald, this is an email chain between you, Mr. Wolfson, Mr. Kavanaugh, Mr. Fox, is that right?
Yes, that's correct.
Okay.
If we can go to the second page here, do you see there an email from Mr. Fox to you at 11.57 a.m. on March 28th?
Yeah.
Yes.
And the email starts with saying, Mike Adam, thanks for the productive time today.
Do you see that?
Yes.
So that indicates that you met with them that day.
Yes.
Do you recall that meeting?
Yes.
And was that in person or was that remote?
If my recollection is correct, that was an in-person meeting here in the chairman's office.
And was Mr. Kavanaugh there or just Mr. Fox?
I believe Mr. Kavanaugh was there as well.
Anyone else from Doge there?
Justin, Nate, that was it.
And anyone else from NEH besides you and Mr. Wolfson who is in the room?
I don't believe so, no.
And was the topic of that meeting the grant termination process that you were undertaking?
Yes.
And what did Mr. Fox say at that meeting?
But that wasn't the exclusive topic.
I should add that I believe at that meeting there are also discussions about the reduction in force.
So focusing just on the grant terminations, do you recall what Mr. Fox said to you and Mr. Wolfson at that meeting?
If I'm correct, I believe this was a meeting at which the rationale for terminating grants expanded beyond DEI to consider administration, Trump administration priorities,
funding priorities, and also grants that could be terminated because they appeared to be too niche or too recondite and so could be seen as constituting a waste.
And where it says here on the email from Mr. Fox, see attached active grants for a year review for DEI or wasteful spend about 440 grants.
Yeah.
What does wasteful spend mean there?
Well, as I say, these are subjective determinations about the value of expanding federal funds on a grant project.
Just as one man's meat is another man's poison, one man's serious humanities project strikes another person as ridiculous.
And so these were determinations that in my capacity as acting chairman, I'd have to make.
But terminating on the basis of wasteful spend, whose idea was that?
That was that came from Nate and Justin.
And did they tell you why the rationales for terminations were expanding at that point?
I don't believe that they provided an explanation other than the fact that the whole reason for the existence, the whole reason for the president authorizing the existence of Doge was in order to reduce wasteful spending.
And even though that was the case since the founding of Doge, right, on January 20th, that that was the purpose of Doge.
That appeared to me to be the purpose of Doge, yes.
But up until this point from when they first contacted you to this point, that was not the focus of the grant terminations, right?
It was just DEI.
The President's executive orders, as I recall, came out in January.
So, and Doge got underway whenever, I believe you said in February, or whenever they, there was an executive order, and they started gearing up.
And they were visiting other agencies.
We were already in the middle of the DEI termination process.
To go back to your question, if I'm remembering it correctly, this was, so no, the wasteful spend did not come up before this meeting.
And do you remember anything else that either Mr. Fox or Mr. Kavanaugh said about why wasteful spend was being added as a rationale for terminations?
Just because I think I don't recall anything in particular that they said, period.
My overall impression was that, again, they looked at some of the grants that we had been investing a significant amount of money in and viewed them as unimportant to the administration's priorities, which at that time, of course, the president had just revived the executive order on the Garden of American Heroes with the central role for NEH.
So in some sense, I think they were correctly viewing it that the president wanted NEH to be involved in the celebrations for the semi-quincentennial and in the garden.
And that, I mean, pick your example, if somebody is asking us for $100,000 to do a book on some obscure Greek poet in the fourth century BC, that certainly could have value to the scholars in that field, how many few there may be.
But Trump, with the limited amount of money that are going to the endowment, the National Endowment for the Humanities, it could appear wasteful, especially with the semi-quincentennial coming up, to divert that much money for a project which is going to engage a handful of scholars in a particularly over-specialized field.
Wasteful Spend Criteria00:04:15
So you use the example of an obscure Greek poet.
So am I understanding that right?
That sort of things that were not core American history, that would be like not the type of thing they'd want to keep.
Am I understanding that right?
Yes, I think basically that's it.
I mean, this is there's a long history of congressmen and senators up on Capitol Hill having their staff go through our grants with the fine-tooth comb and coming out with press releases saying, why is the NEH funding this?
Why is the NIH funding that?
Former senator, Coburn, had something called the Waste Book, in which there was always a chapter on NEH funding humanities projects that he considered to be wasteful.
So I think that this is sort of a continuation of that approach.
So like an obscure French philosopher from the 18th century.
That would not be what we were looking to keep here.
That was not this administration's priorities for NEH funding, no.
Okay.
And you mentioned the Two Garden and 250th, and you were, if I understand right, that was kind of your just speculation as to what motivated them to add wasteful spend.
They didn't say that directly.
Objection.
I don't recall what they said directly.
That was just my general impression.
That was your impression.
Do you know why Mr. Kavanaugh intended this meeting?
Objection.
No.
I guess I can only speculate as to why he attended the meeting.
What would be your speculation?
Well, Nate had dropped off of being part of the NEH team because he was involved at that time, I recall, with the Peace Institute.
And he seemed to be the senior of the two.
And so he was being pulled off and brought back in when time allowed.
So I think that was one reason for him being available to be at this meeting.
I see.
And he provided, you know, the two of them didn't exactly have the same personality in terms of patience, let's put it that way.
And who was the more patient of the two?
Objection.
In my experience, it was Nate was the more.
Justin, he was up and down a bit.
Nate was more patient yourself.
Yeah.
Okay.
Okay.
And so when they said they're adding wasteful spend as a rationale, did you ask them why?
No, I took their point.
I mean, I just, as I said, I understood the administration had its priorities and that as I was trying to explain, perhaps insufficiently, people approach NEH projects through different lenses.
Some see value in certain things where others see nothing.
And with limited amount of money to spend, if you want to move the needle on something like an important event like the semi-quincentennial, it's sort of all hands on deck to direct the agency's focus on that.
And you just said I took their points, but I thought you said a few minutes ago that you didn't recall them providing any specific rationale for why they were adding wasteful spend.
No, they didn't.
I'm just giving you my overall impression.
So you at that meeting, you were kind of just surmising for yourself why?
They always talk, they did bring up the administration's priority.
That was a light motif in these conversations.
Full Grant Termination Lists00:15:30
Okay.
You weren't curious, though, why the scope was suddenly being changed?
Objection.
I didn't see.
I wasn't curious because, as I said, having worked at the agency for over 20 years, seeing how different people we get letters from the public, from senators, from congressmen, newspapers, write articles about how silly and wasteful some of the things we are fund.
I understand that people can reasonably hold that point of view.
You were the head of the agency at this point, acting head.
That's correct.
And somebody who's not at the agency comes in and says, you know, we're going to terminate a bunch of your agency's grants for a new reason we haven't given before.
You weren't at all curious as to why?
Objection.
I think I've answered that two times.
I was not curious.
I understand where they were coming from.
Okay.
And so let's now pull up.
Well, I'm sorry.
Back on that email.
You see Mr. Fox says, quote, flagging these are the ones NAH staffed is marked as NA for DEI.
Yes.
Okay.
And then at the bottom there, you see Mr. Fox wrote, could you put us in touch with someone who could help us gain admin access to Microsoft?
Yes.
Did you have an understanding of why Mr. Fox was asking for admin access?
That would have been in connection with the sending out the termination notices.
And at what point did Mr. Fox tell you that he was going to be the one sending out the termination notices?
I don't recall exactly.
Okay.
Who's probably at this meeting?
Okay.
We'll come back to that one.
So let's pull up the spreadsheet that Mr. Fox attached to this, which is marked as US 41.
Wait, did I just do the wrong one?
I just did the wrong one.
Sorry.
It's marked as US 9583, and if we could go up to the top left, we'll mark this as exhibit 14.
And just like the spreadsheet that we looked at prior to this, you see in the top left corner it says active grants flagged as NA for DEI.
Yes.
And if you scroll down to row 440 or so, Nina.
A little bit lower.
Sorry, just till like the yeses end.
There we go.
And go up a little bit.
And you see the columns all look the same as the prior spreadsheet did.
Yes.
And you see at the bottom there it says total 47 comma 409 comma 330.
Yes.
And that's the exact same total as in the prior spreadsheet we looked at, right?
If you.
Nina, do you want to pull up the prior spreadsheet?
If you have that one?
This is the prior one.
Looks to be the same.
Same figure, yeah.
And is that the same row, row 451?
Go back to the other one.
It appears.
Yeah.
And the prior spreadsheet we looked at, that was at a point where Mr. Fox said he was just flagging items that NEH staff had marked as not DEI, but that Doge had identified as being DEI, right?
Objection.
Sorry, could you repeat the question?
In the previous, we can pull it up if it makes it easier.
The previous email we looked at, which was from I think a week or so before this, Mr. Fox said, I'm attaching a spreadsheet.
Yes.
All of these were marked NA by NEH staff or DEI.
But we, meaning him and Mr. Kavanaugh, identified them as DEI.
Do you recall that?
Should we pull it up?
Do you mind just giving me back the last exhibit?
if i handed it to you this is 13 um 12.
Oh, I have 13.
That is my multiple.
Where do I have 13?
Does anyone have exhibit 13?
Sorry, bear with me.
I don't think I do.
Did I hand it to you?
Oh, it's right in front of me.
I'm so sorry.
Okay.
So we're looking at 13.
No, I wanted to look at the one from March 19th.
So maybe that was 12.
I'm sorry.
Or 11.
10.
It's 10.
Yep, exhibit 10.
Okay.
Thank you.
This was an email from Mr. Fox to you on March 19th.
Yes.
And you see this, you recall this now?
I do.
And he says under NEH active grants marked NA shows all active grants which were flagged as NA for DEI by NEH personnel, but we flagged for DI involvement.
Correct, I understand.
And that's the prior spreadsheet we've been toggling back to.
Okay, yes.
So the prior spreadsheet Mr. Fox represented was all the grants that they flagged as involvement for DEI that NEH staff had not flagged, right?
Yes.
And this spreadsheet is the ones where he says in the email that we just looked at, there's around 440 that were flagged as both DEI or wasteful spend.
Is that right?
Yes.
But in reality, it's the exact same list.
Objection.
I believe so.
So, any idea why adding that additional criterion would produce the exact same list?
Could you rephrase the question, please?
Entire spreadsheet was represented as being just DES.
Yes.
You testified that you met with Mr. Fox and Mr. Kavanaugh and they said they were now also wanting to cut grants that were quote wasteful spend.
And then Mr. Fox sent you a spreadsheet where he said these are circa, yep, not circa, around 440 grants that represent DEI or wasteful spend, right?
Right.
And even though he says that these have that additional criterion of or wasteful spend, it's in fact the exact same list previously produced as being just DEI.
Objection.
Yes, it appears to be the exact same list.
And in fact, if we look at the spreadsheet up on the screen, which was the DEI or wasteful spend, every single row, Nina, if you just scroll up, is marked yes for DEI in the left column, right?
I should say column that row.
Objection.
I'm sorry, what cut?
Yeah, oh, I see on the column far left.
Yeah.
Yes, they're all marked yes.
So does it appear to you that Mr. Fox and Mr. Kavanaugh were adding an additional criterion under which it would be said grants would be terminated, but the substantive result was the exact same list as the grants that were just DEI, marked as DEI.
Objection.
That appears to be the case, yes.
Dan, can you clarify what?
So this is 9583, is that right?
Correct.
And what are you saying this was attached to?
Because it seems to be, you know, it comes with an email, which I don't think.
Oh, you know what?
I'm so sorry.
I should have specified this.
So this is this, if you look through the email chains, you might recall, Mr. McDonald, there was some back and forth where you forgot to attach.
I recall that.
Right?
And then you later sent back.
We'll get to it, but what I can say on the record here is this is the email, the spreadsheet he sent back that was directly responding to this one with the only addition.
So it's the exact same thing.
Perhaps we could, I think it made more sense if it was affiliated with that email so that we can, because what you're marking has has an email, has a cover email that it's attached to.
So you're making various representations about what spreadsheet is what, but I think it's very hard to follow because we haven't seen the email that it is.
We'll get there.
Okay, well, you're asking him to assume various things, and I think some of them are not right because it's not, you're not saying the right thing.
Okay, can I ask the questions though, please?
Mr. McDonald, I'll represent to you that this reflects the spreadsheet, or at least columns C through grant description, C through K that we're looking at on the screen.
That this is the spreadsheet that Mr. Fox sent to you on March 28th that he refers to as being around 440 grants.
If I'm wrong about that, then that's my fault, and you know, the court can discount all my questions.
Understand.
Okay.
So we've established that the spreadsheet that's on the screen, there's no difference between that, seemingly, and the one that he sent to you on March 19th that was marked as just DEI involvement.
Objection.
I'm sorry, can you?
I'm sorry, Rachel.
I'm asking questions.
You can ask me.
Can you just scroll down?
Like, we didn't even.
If the witness needs clarification, he can ask, but you can't be serving as we, as a person who is at the deposition, can ask to see a full document.
No, the witness can ask to see what the witness wants.
No, we can't interrupt.
We, as counsel for the government, are also allowed to see the full document.
We are allowed to see the exhibit so we can understand what's happening.
So if we could please be able to scroll up and down this document, what would you like to see?
If you could just scroll to the bottom of the document.
Okay, I'd ask that if we're in the middle of questioning a witness, that you not interrupt in the middle of a question.
Wait until after he answers, please.
We scroll down Nina, this is what we were looking at before.
Okay, and not the part that's below it where it says no.
Right, Rachel, this is getting out of control.
I'm going to ask him questions.
If you have an objection, you can object to the question.
Being very confusing and misleading.
Okay.
Okay.
Are you coaching the witness right now?
No, I'm trying to understand what you're representing because you're making various representations and they seem to be.
Mr. McDonald, you understand that if you have any questions or clarifications, any of my questions, you can ask them.
If you need me to clarify any question, you're able to ask me to clarify.
I understand.
Okay.
Would I be able to see a full copy of the document now?
The full copy is, I think, several hundred pages, so all we have is what's on the screen.
If you want me to take you to any point in the document, I'm happy to do that.
Understood.
Okay.
I'm going to just note for the record how highly inappropriate that was for counsel to be articulating where he should be looking on the document.
I'm not articulating.
I am asking because I'm trying to follow and it is very garbled.
And as counsel for the government, I am entitled to see the document and understand what you're saying about the document.
This is a document that's marked 9583.
Counsel for the government has a complete copy of it.
They produced it and you can take a look at that document.
It's a spreadsheet which can be manipulated.
But anyway.
I'm sorry, counsel, are you accusing plaintiffs of manipulating this?
No, I'm saying like this.
So why are you saying that?
Because I wanted to see the full spreadsheet and where you stopped.
And I think that that is a reasonable thing.
And you said it was inappropriate.
So I'm just explaining that I'm entitled to see that while here representing the government.
Okay, this is document marked 9583.
has a copy of it.
If we could go to row...
and sorry just to clarify because we got interrupted there.
This is a spreadsheet that Mr. Fox put together, is that right?
Objection.
It appears to be a spreadsheet that he put together, yes.
You did not put the spreadsheet together.
Objection.
I don't do spreadsheets.
No, I did not put that together.
Okay.
If we can go to row, I'm sorry, row 223 now, and you'll see in bold, again, this is the same Modern Language Association grant that we've been talking about for which you previously disagreed with the DEI rationale.
Is that right?
Yes.
Objection.
And so the placement of this grant, Nina, if you could scroll over to the left.
The inclusion of this grant on this spreadsheet was something that Mr. Fox did, right?
Objection.
Yes.
Okay.
And if we could scroll to row 64, my apologies, this will be a little bit tedious, but I just want to make sure to highlight them.
You see here, this is the same grant that we've been talking about from UC Riverside, right?
The digitizing mid-20th century African American newspapers.
Yes.
Okay.
And this is the same grant that you said earlier, you disagreed with the DEI rationale.
That is correct.
And it was, as with the prior grant, it was Mr. Fox who included this grant on this spreadsheet.
Objection.
Yes.
Okay.
And one more, if we go row 85, and this is the grant involving the flat books with the University of Minnesota that we looked at before.
Yes.
And this is a grant also for which you disagreed with the DEI rationale.
Objection.
Yes.
And it was, again, Mr. Fox who included this grant on this spreadsheet.
Objection.
Yes.
Okay.
Do you know, sitting here today, was this grant included on the spreadsheet because it was DEI or because it was wasteful spent?
Objection.
Notice and Wayside Grants00:06:30
I don't know.
Okay.
Same question for the Modern Language Association grant.
Was it included because it was DEI or wasteful spend?
Objection.
I don't know.
And same question again for the UC Riverside grant.
You're asking me to speculate as to why Nate put them on the list.
I don't know.
Right.
And so to the extent the Modern Language Association grant was on this list because it was designated wasteful spend, that was not your designation, right?
Objection.
No.
Okay.
Same for the other two we've been talking about.
Objection.
Yes.
Okay.
I'd like to pull up now what's marked as US2796, and this will be...
I'm sorry, I lost track.
Exhibit 15.
Oh, that one's got violent.
There's two there.
Exhibit 15 March.
Yeah.
And you see at the bottom here is an email from you to Mr. Wolfson copying Ms. I'm sorry, I'm going to mispronounce it.
Is that right?
Yes.
And that's dated Sunday, March 30th, 3.32 p.m.
Yes.
And could you read that email into the record?
This is another agreement that will have to go by the wayside.
Maybe we should have Richard at least give AAAS and ACLS 30 days' notice.
And why did this agreement have to go by the wayside?
The Biden administration had created an Office of Data Evaluation and hired people to staff that office.
The person who was heading the office had negotiated this cooperative agreement with the AAAS and that office was going to be eliminated.
And I think that was the primary reason.
It simply was going to be discontinued as a result of the termination of staff.
Okay.
And you're testifying that the reason that this AAAS grant would have to go by the quote wayside was solely because that office was being eliminated?
Objection.
I'm not sure if there were not other contributing factors to the decision.
I think that was the main factor.
The subsidiary consideration, which has always been a debate at the agency, has to do with data collection and our ability to conduct data collection in any case.
Different administrations have gone back and forth on that issue.
There is a provision in our statute that talks about data collection, but there have been times for reason of personnel or for other reasons we've decided where we have done data collection with AAAS in the past, where we've discontinued it.
So given all the things that were going on at the agency, I think that also played into my decision.
And when you say, I'm sorry, it was the Office of Digital Evaluation.
Data evaluation.
Data evaluation.
Digital humanities data evaluation.
When you say that office was being eliminated, who decided that office would be eliminated?
I think, well, ultimately, I did.
Did Mr. Fox and Kavanaugh at one point recommend that it be eliminated?
No, I don't believe we had any discussions.
This was to revert to something that we discussed earlier.
As I said, the agency had grown, in my view, bloated under the Biden administration.
That was one of the new offices that was created.
My own personal view, before I became acting chairman, that it was a mistake to create it.
And certainly as acting chairman, I was going to discontinue it.
And so the word by the wayside here, sorry, not the word, the expression by the wayside.
Yeah.
That suggests to me something begrudging in the way you're describing it.
Is that fair to say?
Objection.
No, I don't think that's fair to say.
You were happy about this AAAS cooperative agreement going by the wayside?
Objection.
It wasn't a matter of being happy or unhappy about it.
I use the expression neutrally to say it's got to go by the wayside.
It's just we can't continue forward, period.
And when you say we should have Richard at least give them notice, why'd you use at least there?
But generally, I'm in favor of giving notice before an agreement like this that was negotiated over time.
I felt that they had a right to receive some type of notice.
It wasn't because you were upset about this going by the wayside and you were saying at least we should give them notice.
And I wasn't upset about it going by the wayside.
As I said, and I'm repeating myself, I didn't think that the creation of an Office of Data Evaluation was necessary, and I didn't believe that this agreement was necessary.
Okay.
And you see you wrote and ACLS in parentheses?
Yeah.
Why'd you write that in parentheses?
I don't recall, but I imagine I wrote it was because ACLS was involved in the cooperative agreement.
Did ACLS have its own separate cooperative agreement?
Not that I recall.
Urgent Email Communications00:02:10
Okay.
And you see Mr. I think it got cut off here, but you can see it signed by Adam, the email right above.
Yeah, I see.
You see, he says he recommends that Richard give AAAS 30 days notice.
Yes.
But he doesn't mention ACLS.
Well, that was my mistake.
I often confuse acronyms.
So I'm not a seasoned government bureaucrat in that respect.
No, I'm sorry.
So you said to Mr. Wolfson, we should at least give AC AAAS and ACLS notice.
But then Mr. Wolfson says just to give AAAS notice.
Well, Adam, Adam was more involved in that process than I was.
And that often happens where I will make a mistake because I'm not reading certain material as thoroughly as he's apt to do as the assistant chairman for programs.
Okay.
Let's move on to another email chain.
I'm going to hold on to 13 because I might use this again.
We'll mark this as exhibit 16.
And you see on the first page, there's an email from Justin Fox to you at 1135 a.m. on March 31st.
On the first page.
The second email from the bottom.
And he says, Mike, could you pass along your cell number?
Sorry, don't have it saved and need to catch up with you on something time-sensitive.
Do you see that on the first page there?
On the first page.
Yes, I see it.
Ready to Cancel Today00:14:34
Okay.
And then you could see about less than an hour later, he emails you, Mike, please call me as soon as you can.
Yes.
And you would agree he was expressing some urgency in these two emails.
Yes.
Okay.
And then you see just a mere 23 minutes, 24 minutes later, the first email on the top of the page, Mr. Fox writes you, Mike, call me when you get a chance.
We need a game plan for effectuating riffs, final grant terminations, and contract cancellations by tomorrow a.m.
We will carry out these plans before the end of the week.
You see that?
I do.
And then you see he writes, we're getting pressure from the top on this, and we'd prefer that you're mean on our side, but let us know if you're no longer interested.
Yes.
And who was he referring to when he said our side?
Objection.
I could only speculate.
I do not know.
Who do you think he was referring to?
I believe he was most likely referring to whoever he responded to above the chain of command at Doge.
So the Doge side, sort of broadly speaking?
Yes.
Okay.
And then when he says, but let us know if you're no longer interested, what do you think he meant by that?
Objection.
Again, I can only speculate.
And what would that speculation be?
Objection.
Speculation would be that.
You recall I mentioned patience earlier in an earlier response that he wanted to know if I was interested in continuing to work with Doge to implement the to help them with their work.
I think Justin always had a concern.
This is getting more speculation based upon his involvement in work at previous federal agencies that career federal bureaucrats such as myself might be slow walking the process to disadvantage them in the goals that they were attempting to achieve.
And did you think there was any basis for him to think that?
Factual basis?
No, I did not think that there was a factual basis for him to believe that.
I thought I was cooperating because I believe that I had a responsibility having accepted the position and directing the agency, which in my view is part of the executive branch of government.
We were given instructions by the president to cooperate with Doge in its work.
And no, I didn't feel that there were any reasons for obstruction, certainly on my part, but I know that I believe, again, speculation that Justin thought, given his previous work, or perhaps talking with Nate, that career federal bureaucrats such as myself could try and put sticks in wheels and slow walk things.
understand um this And where he says here, we're getting pressure from the top on this.
Who was he referring to there?
Objection.
I think I just answered that.
I don't know who he was referring to.
At some point during this day, March 31st, did you connect with him on the phone?
It's likely.
It's more than likely.
I'm sure I did.
Okay.
And when he called you, or when you called, when you connected on the phone, did he say anything about the urgency, the sudden urgency that was behind these three emails?
I have no specific recollection of what he said.
But on the basis of these emails, I'm sure that was something that he brought up.
Was he upset at you?
No, he wasn't upset with me.
Frustrated?
No, Justin was impatient, but he was always even keeled.
Okay.
And do you recall him saying anything about him getting pressure?
I think he may have just simply, but again, speculation, he may have simply repeated what he wrote in the email.
And he write, when he wrote to you, we're getting pressure from the top.
Yeah.
Were you curious who that was?
I wasn't curious enough to ask if that's the question.
No.
The question is, were you curious who it was?
No, I was not curious.
Somebody from associated with the White House emails you and says, I'm getting pressure from the top on something.
You're not curious who that is?
A collection.
They have answered that.
No, I was not curious.
You didn't ask him who's giving the pressure here?
I did not ask him.
No.
Okay.
Bear with me one moment.
Can we take a two-minute break?
Sure.
Stand by.
The time is 1:51.
We are off the record.
Time is 156, and we are on the record.
Okay.
Mr. McDonald, I'm going to ask you to pull up again exhibit 13, which is the one that started with 50704 on the bottom right.
5-0-7-0-4 on the first page, yeah.
Got it.
Thank you.
And you see, this is an email dated March 31st, 2025, at 4:29 p.m. from you to Mr. Fox, Mr. Kavanaugh, and Mr. Wolfson.
Yes.
And you see the email says, Hi, Justin.
Hi, Nate.
And then can I ask you to read the first paragraph there into the record?
Sure.
To recap, you have the first spreadsheet from Brett that Adam and I reviewed and sent to OMB, listing all the applications implicated by the EOs.
Pair ends minus the NAs, closed pair ends.
We were getting ready to cancel them today, but understand that you will do so.
And that you sent this email shortly after that series of three emails from Mr. Fox that we just looked at.
Yes.
And did you speak with Mr. Fox between the final of those three emails and when you sent this email?
I don't have any clear recollection.
I don't believe I did, though.
Well, were you right to recap?
You're not recapping any conversation you had with him?
objection?
Again, I don't have any clear recollection.
I believe in the recap, it's just trying to situate everybody where we were in the process.
I wasn't recapping any conversations.
Okay.
So when you say paragraph you just said, you're referring to the first spreadsheet from Brett.
So that refers to the, what I'll call the low, medium, high spreadsheet that NEH staff prepared and that you sent to OMB.
Yes.
And you say we were getting ready to cancel them today.
Yes.
Who's the we there?
I'm not sure.
I mean, I don't recall if at that point.
My recollection is not that we were getting, we being the NEH agency was getting ready to cancel the grants.
I might have been saying, referring to the fact that the discussion with Nate and Justin, that is the we that we were getting ready to cancel.
But well, if you look at the full sentence, it says, we were getting to ready to cancel today, but understand that you will do so now.
Yeah, no, that seems to suggest that we were, but I don't recall any conversations about us.
Although there may have been, I just don't recall that we were going to effectuate, we, that is, the NEH Office of Grant Management, would have affected the terminations.
But you agree that reading this email, it certainly seems that you were representing that we meeting NEH, not including the Doge folks, were getting ready to cancel today.
Yeah, I think it's likely that I was going under the supposition that once we had done, finished with Justin and Nate at that point, I didn't imagine that they would be excluded from the process, but they would be involved in helping us terminate the grants from the inside of NEH.
And then you say, but understand that you will do so.
So who's the you there?
That would be the Doge team.
Meaning Nate and Justin.
Correct.
And how did you get that understanding that they will do so?
It must have been on conversation that we had, more than likely a conversation, in-person conversation that we had here at NEH on March 28th, the one that I said, Nate was there and Justin was there.
And they told us about how they could terminate grants on their end.
So even though we have a series of three emails from Mr. Fox that are getting increasingly urgent, let's say, and say, you know, I need to talk to you about something time-sensitive, stuff like that.
Then a couple hours later you send this email, you're saying this had been the plan all along before that series of three phone calls?
Objection.
I'm sorry, which council is objecting here?
Because I'm hearing multiple objections and it's hard to understand who's objecting.
I don't think you are having a hard time.
I am just making a very quiet comment to my colleague.
I clearly was not objecting on the record to that question.
Okay, I think it's confusing because if I could hear it, that means the reporter can hear it.
And so you could see that.
I'd ask that just one council object.
Thank you.
She is objecting.
I will try to be quieter, but I think that was quite quiet and clearly not an objection on the record.
So for the record, your objections are not on the record, but Ms. Brandon's objections are on the record.
I haven't made any objections on the record.
Okay.
Mr. McDonald's, is it possible that you had a phone call with Mr. Fox after that series of three emails where he said something to you that then led you to write this email saying, we were planning on canceling them today, but understand that you will do so.
Yes, it certainly is possible.
Okay.
And when you said that you will do so, what did that mean?
What would they do?
That Nate and Justin, having canceled grants, other agencies had a process that the Doge team used to effectuate grant terminations.
I believe that by that point, they had canceled grants at USAID and at IMLS.
And so they had, if you will, they had a process that they had used and that would be says something similar would be used in this instance.
Okay.
Meaning they would send out the grant termination.
Correct.
And that's the first paragraph we established is talking about the NEH staff generated spreadsheet.
And then could you read into the record the next paragraph?
The attached is the second list.
Excuse me.
Attached is the second list.
Parents, DNA, close parents that you prepared and that we reviewed today.
As you instructed, we have only excluded the ones that seem not to conflict with the administration's priorities, such as the papers of George Washington.
We understand that you cancel this list of projects as well.
Okay.
So where you write as you instructed, who's the you there?
That's the Doge team.
Okay.
You mentioned earlier your definition of a consultant.
Do consultants typically instruct you on what to do?
Objection.
There's a typical, I don't have any experience with consultants.
Well, you provided a definition before consultants.
You have an idea, right?
Consultants typically advise.
And if it's a depending on the situation, one is more inclined than not to take their advice.
I used instruction.
That's the word I wrote.
Perhaps it was inappropriate.
Okay.
But you agree that in general, a consultant does not instruct the person they're consulting on what to do.
Objection.
Again, I have no experience with consultants getting advice from them, but no, normally they give advice.
And depending on their level of expertise.
Individualized Consideration Issues00:16:07
Okay.
And then you wrote at the end of that paragraph, we understand that you will cancel this list of projects as well.
And so when it says this list of projects, that's referring to what we've been describing as the NA list.
Is that right?
Correct.
Okay.
You mentioned here that they instructed you, um, Withdraw that.
I'll ask you later.
I'd like to hand you now what's US 32877, which we'll mark as exhibit 17.
Is that right?
Exhibit 17 marked.
Thank you.
This appears, or this is an email from March 31st, 2025 at 11.52 p.m. from Justin Fox to Brett and Beth copying you and Nate Kavanaugh, is that right?
Yes.
And in this email, Mr. Fox asked them, could you please send us an EGMS poll containing the below columns tomorrow on active grants, right?
Correct.
And so his ask was as to all active grants, is that right?
Yes.
And do you know why he was asking them for this list?
My understanding is that he wanted to do a cross-check on the spreadsheets that we were using to see if they caught all the active awards.
Okay, there you go.
Sorry.
Okay.
I am now going to hand you an email chain that begins with US 9564 and exhibit 19?
18.
Exhibit 18 March.
Okay.
And I'll ask if we can go to the final page here.
I'm sorry, to the bottom of the second to the last page, which is the final email, or the first email on this chain.
Yes.
Are you familiar with this email?
Yes.
This is an email you sent Justin Fox.
So it's just the two of you on the email at 10.07 a.m. on April 1st, 2025.
Yes.
Okay.
And the subject line of this email is, quote, the NA spreadsheet?
Yes.
Okay.
And what were you referring to when you said the NA spreadsheet?
No, this was the presumably the spreadsheet that we looked at earlier today that Justin had prepared.
The 440 so on grants.
I believe so.
Okay.
And why'd you make that the subject line of this email?
Well, because the Doge team was waiting for our evaluation of the grants listed on the NA sheet for potential termination.
Okay.
And what emotions were you feeling when you sent this email?
Objection.
Mainly frustration at my own technological ignorance.
Adam and I had looked at the NA spreadsheet the previous day or afternoon or evening, I forget the time frame.
And we went through it and we annotated certain grants and lacking the technological noose to understand how to save the grants that we had marked to not to terminate, I ended up sending him a spreadsheet that he had sent us.
So this morning, my main emotion was one of frustration with myself at having to duplicate the work.
So you weren't frustrated with Justin Fox when you sent this email?
I don't think I was personally frustrated with Justin Fox, no.
Were you frustrated with him in some way that wasn't personally frustrating?
I think the well, you know, of course, again, I go back to the situation with the RIFs, the contract cancellations, the council meeting.
It was a rather stressful period, and we were all under a lot of pressure.
And there was this time pressure component, which we just saw in the previous email that Mr. Fox had sent me about.
So, yeah, there was frustration over the overall process, the time constraints that were placed upon us.
Or me in particular.
Let's just start going through the emails.
So could you read into the record the last sentence of the first paragraph, starting with and even?
Yeah, and even though I'm getting it to you late, I'm glad we have the opportunity to go over it, cover it again, if only to clarify our thoughts about the process.
And is what then follows in the remainder of the email fair to say that those are your thoughts about the process?
Yes.
Okay.
And in the second paragraph that starts with, as you know, in that paragraph, are you describing the list of awards we've discussed that NEH staff identified as involving DEI?
That's correct.
The one that was sent to OMB.
Yes.
Okay.
And can I ask you to read into the record the third paragraph?
The attached list concerns, as you know, applications that staff rated NA, that is involving projects that seemed to have no applicability to promoting DEI, and we feel much less confident about it.
Okay.
And this is the attached list that's referring to the NA list in which you were attaching your annotations.
Correct.
Okay.
And when you say we felt much less confident about that, you felt much less confident about the DEI rationales that were being provided?
Certainly about, yes, about the DEI rationales.
And you also felt much less confident about the bases overall for terminating them.
As I was saying, the question of a wasteful grant is, again, highly subjective.
So yes, having worked at the agency for over 20 years and seen the types of grants in my perspective is different from somebody that is just encountering the grants for the first time.
Having studied Latin and ancient Greek, I could see a value in the fourth century obscure Greek poet.
That's not to say that everybody would.
But when you say confident about it, it being the placement on this list is what that means, right?
It being the list, the notifications, the DEI rationales, principally, yeah.
Okay, understood.
And then you say, just skipping ahead a paragraph, although you're welcome to read the paragraph in between, you say we think these projects are harmless when it comes to promoting DEI.
Yes.
And when you say we, who are you referring to?
I was reviewing at that time with Adam Wolfson.
We had just, again, gone over the spreadsheet a second time.
So I was saying we was referring to myself and to Adam Wolfson.
Okay.
And these projects, for the record, that's referring to the projects in the NA spreadsheet you were sending back to him.
Is that right?
Correct.
Okay.
And then you wrote, but in the interest of time, because we know you want to move quickly, we didn't give these applications the individualized consideration that we did to those in the first spreadsheet.
Do you see that?
I do.
And when you say, because we know you want to, I think you meant to say move and maybe wrote more quickly.
That's correct.
Typo.
Okay.
And when did he tell you he wanted to move quickly?
Well, we just saw the email exchanges.
Okay.
And so when you say we didn't give these applications the individualized consideration, the we there is you and Mr. Wolfson.
That's correct.
And when you said individualized consideration, I take that to mean you didn't go one by one individually through those grants and do an assessment of each one of those.
Objection.
What I meant there was that in contradistinction to what we did with the DEI list that the staff generated, whereas I mentioned earlier, Adam Wolfson and I spent a significant amount of time over two days drilling down into the actual applications to see what was at stake.
Given time constraints, we only had time to review the spreadsheet, the information that was on the spreadsheet, and make judgments on that basis.
And is your testimony you gave individualized consideration to every grant on that spreadsheet one by one?
My testimony is we certainly looked at the information on the spreadsheets.
We went through each one, but we were circumscribed by the spreadsheets.
We didn't take the time, as we had done in the earlier process of going into our grant management base, pulling up the application, or doing other types of searches to understand precisely what was at work in the grant.
And if you had had your drothers, you would have taken the time to do that before terminating these grants.
That's correct.
Okay.
But Doge said you couldn't have the time.
Objection.
Again, forgive me for repeating myself.
My understanding was that we were to cooperate with Doge.
NEH is part of the executive branch.
The president instructed me as the acting to cooperate with Doge.
Doge had its own timetable for this process.
I felt that it was my duty to work with them on their timetable, their process, not mine.
Got it.
But is your testimony still that they were consultants?
Objection.
Testimony is they, yes, they were consultants.
And you think because the ultimate decisions were mine, not theirs.
Sure.
And you think consultants typically tell the person they're consulting how much time they have to make a decision?
Objection.
Again, this was a collaborative process.
Under the direction of an executive order signed by the President, I wouldn't have taken the job of acting chairman if I was going to disobey and not cooperate or seek to prolong the process that the president had entrusted to Doge.
And you just weren't there, you used the word disobey.
Did I get that right?
I wasn't going to disobey the directive of the president to cooperate with Doge.
And then that would mean if you were not following the advice that Justin and Nate were giving, you'd be disobeying with the president because they were acting sort of on his behalf.
Is that your testimony?
My testimony is that NEH, Doge, we're all part of the executive branch, and we answer ultimately to the president.
The president had just won an election in which he campaigned specifically on issues like Doge and the elimination of waste spending.
My job was not to impede that process.
Okay.
And so what you say here, we only, accordingly, we only explicitly initialed a few important projects, such as the papers of George Washington, whose cancellation would not reflect well on any of us.
And the same could be said for many other listed projects.
So canceling the papers of George Washington, that would not reflect well on anyone involved in this process, right?
That was my view at the time, yes.
And when you say the same could be said for many other listed projects, you're referring to other projects that still were slated for termination.
Correct.
Objection.
That the cancellation of those would not reflect well on any of us.
Objection.
I saw you man these values in a number of projects that were slated for termination that I thought, yes, would not reflect well.
Okay.
But your testimony is you decided to terminate grants for which the termination would not reflect well on any of us?
Objection.
There was a larger, yes, because there was a larger matter at stake, and that was the question of the reordering of NEH priorities.
And sort of, in a sense, well, I'll leave it at that.
And then you're right, it would take too long at this point to review the NA list appropriately.
So that gets back to what we were talking about before, that if you had your drothers, you would have dug into each grant application.
Is that so you didn't feel the review you did was an appropriate amount of review of this list?
Objection.
I felt the review process was inadequate.
Rationale Spreadsheet Confusion00:15:28
Okay.
And then you say, therefore, our recommendation is that wherever the quote, DEI rationale, end quote, on the spreadsheet makes clear that there is no DEI component to the project, there is no justification for canceling the project's funding, and you should allow it to continue.
Do you see that?
I do.
And when you say our recommendation, who are you referring to?
Adam Wolfson and myself.
And you were making a recommendation to whom?
To the Doge team.
Okay.
And where you say you should allow it continue, who is the you there?
That would be the Doge people.
Okay.
So you were, if I'm understanding this right, you went through the NA list.
There's about 404 in the list.
We'll go through it.
You marked a couple for saving.
But the rest, your recommendation is that wherever the DEI rationale on the spreadsheet makes clear that there is no DI component to the project, you are recommending that Mr. Fox and Mr. Kavanaugh should allow that grant to continue.
Where there was no DEI rationale on the spreadsheet, yes, they should allow it to continue.
Sorry, your email, it's not that when there was no DI rationale on the spreadsheet, it was that whenever the DI rationale on the spreadsheet makes clear that there is no DEI component to the project.
Correct, yes.
Right.
So if that was the case, then your recommendation was, Mr. Fox, Mr. Kavanaugh, you should allow this grant to continue.
It should not be terminated.
Correct.
Right.
And did they take your recommendation?
Objection.
I don't believe they did, no.
Okay.
And then you write final paragraph, but you have also told us that in addition to canceling projects, because they may promote DEI ideology, the Doge team also wishes to cancel funding to assist in deficit reduction.
Yes.
Either way, as you've made clear, it's your decision on whether to discontinue funding on any of the projects on this list.
Do you see that?
I do.
And when you sent this email, you meant what you wrote?
Yes.
Okay.
Everything you wrote in here was accurate at the time you wrote it?
It accurately expressed my state of mind at the time, yes.
Okay.
And when you say, as you've made clear, the you is referring again to Nate and Justin.
In that paragraph?
Yeah.
Yes.
And not asking for the substance of what they said, but do you remember when they made that clear?
Made what clear?
Well, you say, as you've made clear, it's your decision on whether to discontinue funding on any of the projects on this list.
So do you recall when they made that clear?
Objection.
It may have been at the March 28th in-person meeting that we had here.
And do you recall what words they used that made it clear?
No, I did not.
I'm going to now go up to the next email on that chain, which is an email from Mr. Fox responding to you about two hours later at 1157 a.m.
Do you see that?
I'm sorry, I'm on the wrong.
There's two different chains that have this, and so bear with me while I pull up the right one.
I've heard it that about time.
Oh, I'm sorry.
It is on this one.
I am all out of sorts.
Okay, you see that email from Mr. Fox at 1157 a.m.
Yes.
And he said, received, thanks, Mike.
We need to execute on these today, but need Brett/slash Beth to send us the information I requested last night.
Do you see that?
Yes.
And when he said we need to execute on these today, is these referring to the grants on the NEA spreadsheet?
I believe so.
So this reflects that he was not taking your recommendation to allow the funding to continue.
Objection.
It's unclear from just this email.
He's talking about executing, but he doesn't add any information to say how he specifically is going to proceed.
At no point either in this email or subsequent did he say, Mike, we're accepting your recommendation to that.
That's correct.
He did not say that.
Okay.
Between the email you sent at 10.07 and this email from 1157 a.m., did you speak with Mr. Fox?
I have no recollection.
Mr. Kavanaugh, did you speak with him?
Again, I have no recollection.
At any point after you sent that 10.07 a.m. email, did somebody from either Mr. Fox, Mr. Kavanaugh, or someone else affiliated with Joe's call you to talk to you about that email?
No, no one called me to discuss the email.
Email you to discuss it?
I have no recollection of anybody telephoning me after 10.07 to talk about the substance of the email that I had sent.
No recollection of anyone reaching out in any way about it to any medium?
No.
Okay.
I'm going to now pull up again the spreadsheet, which we were looking at before, which, as I mentioned, is marked 9583.
So we've already, US 9583, so we've already marked this as an exhibit.
And this is the, I'll represent to you that this is the spreadsheet that was attached to your 10.07 a.m. email.
It's the same spreadsheet we were looking at before that has the, what we've been calling the NA list of 400 or 40 or 440 or so grants.
Do you accept that representation?
I do, yes.
Okay.
And so column L here, the one MM slash AW, can you tell me what that column was for?
That was when we conducted our review of the NAs, that column existed for us to mark grants on the list to not determinate.
can we go to row 235?
I'm sorry, before we do this, can we go to row 223?
This is again the same Modern Language Association grant we've been talking about.
Yes.
And you can correct me.
I believe your testimony earlier was that you did not think the DEI rationale here showed an actual connection between DEI and this grant.
Is that right?
I believe, as I said before, just on the basis of the information provided there, no, I did not.
Okay.
So going back then to the email we just read from April 1st, the email you sent, where you said, for those where the rationale, I can't remember the exact wording, you said our recommendation is that those should be allowed to continue.
This would be among those grants that you were recommending be allowed to continue.
If it says on the spreadsheet that there was, sorry, I'm a bit confused.
Sure.
So if we go back to your April 1st email, right?
Right, right, right.
You said our recommendation, I'm in the second to last paragraph.
Yeah, yeah.
Our recommendation is that wherever the quote DEI rationale in the spreadsheet makes clear that there is no DEI component to the project, there's no justification for canceling the project's funding and you should allow it to continue.
So we said before this was one where you did the DEI, is it fair to say that this is an example where the DEI rationale on the spreadsheet makes clear that there is no actual DEI component to the project?
Correct.
That's right.
So this would be covered by that sentence I just read into this presentation.
And would the same be true of the University of Minnesota Flatbook grant and the UC Riverside grant that we talked about before?
Do you want to pull them up individually?
No need to pull it up.
Yeah.
Okay.
Let's go to, sorry, I'm going to hand you an email chain.
Another email chain that starts with U.S. 50604.
Sorry, there's two copies.
And we'll mark this as exhibit 19.
Thank you.
Exhibit 19 mark.
Okay.
if we go to the second page here Yes.
And you see Mr. Fox emailed you at around 3.50 p.m. on April 1st.
Yes.
And he wrote, Mike, as we discussed, we've collected the grants you flag to keep and a few of those pertaining to America 250th or within priorities of the administration.
Yes.
And where he said that you flagged to keep and a few of those pertaining to America 250th or within the priorities, does that mean those were two separate groups of grants?
Um, I'm not sure.
Two separate grants.
I think there were, I think at that point, I don't recall clearly.
If you want to restate the question.
Yeah, let me ask the question in a better way.
Thank you.
It says we've collected the grants you keep, you flag to keep.
So there's one set of grants that we just in those initials that you flag to keep.
And am I right that that was just a couple in that spreadsheet that you provide?
And then he says, when he's talking about what they've collected and a few of those pertaining to America 250, you're within the priorities of the administration.
Correct.
So when you say we've collected the grants, Mr. Fox is referring to him and Mr. Kavanaugh?
Yes.
So to the extent there were grants collected to put on what we'll look at was called a to keep list I think there are some that you flagged to keep and then there's ones that they identified to keep based on that criteria that we described.
That is correct.
and when he says we need your final approval and then skipping ahead he says I'll call you in about an hour to check on progress What progress was he referring to?
Objection.
It's difficult for me to recall.
I could speculate again that he was asking us to confirm the 250 grants that they had identified to keep because he wanted my sign-off on those as well.
Okay.
All right.
I'm going to, um, um, pardon me.
Um.
We're going to pull up another spreadsheet now that's US 41206, which we'll mark as exhibit 20.
And I'll represent to you, Mr. McDonald, that this is the spreadsheet that Mr. Fox attached to that email we just read, where he said we've collected the ones you flagged and ones pertaining to America 250th and the administration.
Do you accept that representation?
Yes.
Okay.
And you see here there's two tabs.
One is titled To Keep and the other is titled To Cancel.
I see to cancel and I see to keep, yes.
And do you recall seeing this spreadsheet, this Excel file, I should say?
I have no recollection.
Do you recall seeing an Excel file that had tabs for to keep and to cancel?
I have no definite recollection, but I'm sure I probably did.
That makes sense.
So I can tell you when we look through the Discovery Produced, this was the first iteration that we found of this spreadsheet with those two tabs being sent.
You have no basis to say, no, it was an earlier time.
No, I did not.
Okay.
And what did to keep mean here, do you think?
To keep, I understood to mean not to terminate.
And to cancel?
To terminate.
And from the fact that you just said you don't have a specific recollection, I take it that you didn't personally put together these spreadsheets.
No, as I mentioned earlier, I don't deal with spreadsheets.
Okay.
And is it your understanding that Mr. Fox compiled these spreadsheets?
More than likely, yes.
Or Mr. Kavanaugh?
More likely, Justin, yes.
Okay.
And so could we go to the to cancel list and then go to row 1355?
And you'll see a grant here highlighted in bold.
Do you see that, Mr. McDonald?
Yes.
And do you see that this is a grant in column I, it says this is a grant to advancing the National Catholic Center for Holocaust Education at Satan Hill?
Yes.
And do you know, is that a typo?
Should that be Satan Hall?
Should that be what?
Seton Hall University?
Yeah, probably.
Seton Hall.
Okay.
And if we go over, Nina, to column J, can you read into the record the description of that project?
Oh, I'm sorry.
Development of a strategic plan for delivering interpretive programming about the Holocaust to the local community.
Okay.
Holocaust Labor Grants00:06:46
And in your view, does this grant relate to DEI?
No.
Would you consider this to be wasteful spend?
I would not know.
Okay.
So you didn't consider it to be a DEI and you didn't consider it to be wasteful spend.
So why was the grant terminated?
The grant was terminated on the basis of a resetting of priorities.
Basically, we're looking at the last four years of open grants from the Biden administration.
My understanding was we wanted to start afresh, clean with clean slate as much as possible, not canceling grants that we deemed to be in accordance with the chief administration, Trump administration priorities, and that therefore this grant was canceled on that basis, that there were higher priorities involved.
We talked before about grants that you thought the cancellation did not reflect well on any of us you wrote.
Would this be one of those grants?
Yes.
But just to clarify, notwithstanding your answer a moment ago, it was Justin Fox who placed this grant on this list to terminate, right?
Objection.
I was to say, it's likely that Justin developed the list, so yes.
Okay.
You don't recall ever saying, I'd like to terminate the grant about delivering interpretive programming about the Holocaust to local communities.
No, that was probably on the NA list, right?
It was carried over.
So, no.
Okay.
Can we go to row 116 and maybe expand the row?
Yeah.
Do you see this is a grant, this is again on the to cancel list titled My Underground Mother, a feature-length documentary that explores the lives and legacies of survivors of Jewish women's slave labor during the Holocaust?
Yes.
And then could you read into the record the project description?
Production of a feature-length documentary about Jewish female slave labor during the Holocaust, using as a lens one daughter's journey to uncover her mother's past.
And do you believe, scratch that, do you believe this grant involves DEI?
No.
So the fact that it's specific to Jewish people doesn't make it involved DEI?
That's not how I understand DEI.
Okay.
And the fact that it's specific to women doesn't make it involve DEI?
No.
What would you think if somebody said, yes, that did involve DEI?
Objection.
Yes, hypothetically, if somebody were to say that they thought it involved DEI, I would think that they didn't, their understanding of DEI was not the same as mine.
Okay.
And it was Justin Fox who, again, he was the one who placed this grant on this list for termination.
Objection.
Justin prepared the list, yes.
Michael MacDonald never said, I'd really like to terminate the grant about Jewish female slave labor during the Holocaust.
That's correct.
Okay.
And so it's Justin Fox who's responsible for this grant being terminated?
Objection.
No.
It's not, he placed it on the list.
I was the final decider.
I made that.
Objection.
You were the final decider for this specific grant being terminated.
In the end, yes.
So do you recall reviewing this grant and thinking to yourself, I, Michael McDonald, decide to terminate the grant about Jewish female slave labor during the Holocaust?
Objection.
Do I recall?
Yeah.
No.
So then how do you know you were the decider?
The grant was terminated.
I approved all the grant terminations.
But you don't recall approving this one specifically?
There are over 1,400 grants.
I don't recall the vast majority of them.
You don't, just to make sure I understand, you don't recall approving the vast majority of them.
Objection.
I'm not sure I understand the question.
So on this one, on an individualized basis, you don't recall approving the termination of this grant about Jewish female slave labor during the Holocaust.
I do not recall approving the termination of this specific grant.
And if we went through a lot of other grants on this list, is it fair to say the same would be true?
Yes.
And just because you know I have to do it, I'll go through my three favorite grants again.
Can we pull up 1144?
And this was, again, the grant.
Is this the one to the Modern Language Association?
Yeah.
Again, you did not, it was Justin Fox who put this grant on the list for termination.
Objection.
Yes.
Okay.
And is it the same answer that I just gave that you just gave before that you don't recall specifically approving this grant for termination?
No, that's correct.
I do not recall specifically approving this grant for termination.
And would the same be true of the University of Minnesota Flatbook grant and the University of Riverside, California Riverside Grant that we've talked about today?
Yes.
Objection.
Okay.
Now I'm going to hand you I'm now going to go back.
Can we also take a break at some point whenever you get to a good spot?
Specific Approval Recalls00:08:33
Yeah, what time was it?
243, and just figure out if we're at a good spot now.
Give me another like five, ten minutes.
We'll take a break.
Sure.
Okay, thank you.
So going back to Exhibit 19, this is the email chain that started with 5064.
5064 Got it.
Okay.
And you see, and then if you go to the next page, 50605.
Yes.
You see Mr. Fox emailed you at 4.17 p.m. saying, Mike, an update attached.
Call me once you receive.
Yes.
And do you remember calling Mr. Fox then?
No, I don't remember, but I most likely did call.
Okay.
But you don't have any recollection of the conversation?
No.
Okay.
And then you see going up the chain that you emailed him back at 5.05 p.m. saying, hi, Justin, we've completed our review.
Our initial version is attached.
Right.
Yes.
And so that was about, if I'm getting my math right, 48 minutes later?
I'll take your word for that, yeah.
Okay.
So is it fair to say then that you had that length of time to go through the list to do your review?
Objection.
Yes.
I'd like to pull up now.
And you say here you sent back, quote, our initial version.
Ours referring to you and Mr. Wolfson, is that right?
That's correct.
Okay.
I'd like to pull up now, and this will be the last one before we break.
The spreadsheet that's US 61429.
And this is very confusing because there's one that has identical, but has one digit different.
This is 429.
Excellent.
Okay.
And do you recall again this is this exhibit?
What exhibit?
Is this a new exhibit?
This is an exhibit.
I'm sorry.
What are we up to now?
it?
21.
I'm sorry, let's actually take a break right now before we start going into this.
How long do you guys want?
Do you want to, maybe 10 minutes?
Okay.
Stand by.
Time is 2.46 and we are off the record.
Time is 2.56 and we are on the record.
Okay.
Sorry.
Mr. McDonald, do you see a spreadsheet on the screen?
I'll represent to you that at the top of the spreadsheet, it's marked US 61492.
It's in the Excel file.
Oh, yes.
Yes, now I see it.
Yes.
Okay.
And I think I previously said 61429 because this is very confusing.
They're off by one exhibit.
So this is the exhibit I intended to.
Sorry, this is this Excel workbook I intended to make an exhibit.
So which exhibit number is this?
21.
21.
Thank you.
And can we go over to the to cancel?
Okay.
And you'll see here, this looks like the prior to keep and to cancel spreadsheets we looked at.
It appears now it's simply broken out by one is to cancel orgs and the other is to cancel individuals.
Do you see that?
Yes.
Okay.
And then column J again, that's the column where you and Mr. Wolfson would have annotated ones you wish to keep or you think should be kept.
Okay.
And who annotated it?
Was it you or was it Mr. Wolfson?
I don't recall.
One of us.
Do you recall personally going through this and annotating some of these?
Yes.
So it would have been you then?
I think that we were working on my computer, so yes, I was the one annotating.
Okay.
I think Adam may have brought his laptop to the office too, so I can't be sure.
Okay.
Can we go down to row 1386?
And is there no row 1386?
You know what?
I can't believe I did this.
I mixed them up.
I've got that right, then I mixed them up, then I got it right.
Okay.
I apologize.
Let's go back to the other one, Nina.
This is what I meant to do.
Okay.
We are going to make exhibit 21.
We're going to revert it to being US 61429.
Okay.
And Mr. McDonald, I'll represent to you that this Excel work is the workbook that you attached to your email back to Mr. Fox that we looked at a moment ago, where you said, you know, attaches our initial, I can't remember the exact words, but do you recall the email I'm talking about?
Okay.
Is that a yes, just for the record?
Yes.
Okay.
And you'll see again here there was just one to keep and one to cancel call.
Right.
And we have in column J again, that's where you would have, you or Mr. Wolfson would have put your initials.
And I looked through this and I saw that I think there were seven grants for which you put your initials.
Does that sound about right?
Yes.
Objection.
And five of the seven seem to relate in some way to the American Revolution.
Does that sound about right?
Objection.
Yes.
Okay.
So here on 1386, you marked to save one.
And if you could just go over, Nita, to the description, where it's described as materials and equipment, including exhibition cases, benches, and chairs for the new U.S. Constitution Museum in Boston, Massachusetts, for $333,000.
Is that right?
Yes.
Do you recall why you marked to keep that one?
Because of its connection to the revolution.
So you marked to keep that one because of its connection to the revolution, to building a museum, to the USS Constitution?
Sorry, I'm mistaken.
I'm not sure why.
No, at this point, I can't recall.
Okay.
Can we go down to row 1465?
Okay.
And here's another one that you marked to keep that also related to the U.S. Constitution.
Nina, if you could go over planning of a permanent exhibition about the USS Constitution's 1844 to 46 international cruise to expand United States diplomatic and trade relations.
Do you see that?
I do.
Do you recall why you marked that one to keep?
I do not.
Okay.
So nothing jumped out at you about these ones as somehow uniquely within the administration's priorities.
objection?
I can't say what I was thinking in my discussions with Adam at that time.
Sure.
I'd like to now go back to Exhibit 19, and this was the one with 50604.
Delegated Termination Drafts00:05:16
Yes.
And do you see at the bottom of the first page, there's an email from Justin Fox to you at 7.55 p.m. to you and Mr. Wilson?
Yes.
Okay.
And he writes, thank you, Mike.
As discussed, please see attached for your review.
Do you see that?
Yes.
Do you remember discussing this with him at all?
I do not remember, recall discussing this with Mr. Fox.
Okay.
And then he says, in accordance with the President's February 19th, 2025 EO to eliminate all non-statutorily required activities and functions, then parentheses, citation, we will begin to execute the attach with your permission.
Yes.
Do you know why he was referencing an executive order about eliminating all non-statutorily required activities and functions?
No.
There was no executive order to eliminate all of NEH's non-statutorily required activities and functions, right?
That's correct.
Do you know that there was for other agencies, small agencies?
I believe there were, yes.
Including agencies that Mr. Fox and Mr. Kavanaugh had been deployed to?
Yes.
Okay.
And then he says, we will begin to execute the attach with your permission.
And who's the we there?
I don't know.
Well, it's coming from Mr. Fox, so it's fair to say that he's part of the Doge team, yes.
Yeah.
And what did he mean by execute, to your understanding?
Well, in this context, begin the termination process.
Okay.
So they were going to carry out the termination process.
Objection.
They were doing, yes, they were doing what I would consider to be a ministerial act in carrying out the terminations.
And the ministerial act encompasses what exactly?
The actual mechanics of sending out the termination notices.
What about drafting the termination letters?
Is that ministerial?
In certain instances, it can be.
Was it here?
Objection. I believe so.
Okay.
And they say we'll begin to execute.
Can you think of any other context where you've had, at your entire time at NEH, where officials from the federal government who are not part of NEH have executed on NEH functions?
Objection.
No. Okay.
And then Mr. Fox says, I'll follow up with the documents and language for the termination notices.
Do you see that?
Yes.
And when he says, I'll follow up, that means he's going to be drafting and sending you the documents and language for the termination notices.
objection.
Yeah, I believe that's what he's saying, yes.
Okay.
And did you ask him to do that?
I don't recall asking him to do it.
As I said earlier, I know they had a process for doing this, so I delegated that to him.
When you say you delegated, can you clarify what you mean by that?
Did you actively say I would like you to draft up the termination notices?
They offered their services, so to speak, to do that, and I agreed.
Okay.
And let's now pull up the other spreadsheet that they get confusingly numbered almost the same, which is the one that is 61492.
And I'll represent to you that this is the spreadsheet that Mr. Fox sent back to you with the email we just read, where he said, you know, with your permission, we'll execute.
Do you accept that representation?
I tend to get blurry-eyed over all these spreadsheets.
But sure, I will accept your representation.
Okay.
Let's mark this as a new exhibit.
So this will be 22.
It's an Excel sheet.
Okay.
And so this is the one where I had a false start earlier, where it seems to be the same as the prior one in terms of the tabs, at least at the bottom, but now the to cancel has been broken out into orgs and individ.
Keep List Reasons00:09:50
You see that?
In div.
Broken out into what?
It says in organizations and individuals, it seems to be the breakdown.
Does that seem accurate in the two tabs there at the bottom?
Two tabs at the bottom.
Do you see where the cursor is?
Yes.
And do you see it says to cancel parentheses orgs?
Orgs.
Yes.
And then you see to cancel.
Okay.
And again, the to keep tab here represents the grants that were going to be kept, right?
Yes.
Okay, so can we click on that?
And let's go to, or just look at the first one there.
These are the papers of George Washington.
I'm sorry, of Albert Einstein.
That grant was not terminated, is that correct?
I don't recall.
Okay.
Sitting here today, you're not sure whether or not that grant was terminated?
No, I'm not sure.
Okay, and do you then recall who put that grant on this list of ones to keep?
Well, then we must have put it on.
Adam and I must have put it on the list to keep.
I just don't recall.
Okay.
And then the next one with the Adams papers, is that the same answer?
The Adams paper.
Yeah, that I would, I'm pretty sure we both put that on this to save list, to keep list.
Okay.
Nina, can we go to the one that's The Letters of Ernest Hemingway?
I do recall that one being on the to keep to list.
I have no clear recollection, but classic American author, that was probably the rationale, so yes.
When you say classic American author, that's the first time that you've mentioned that as a rationale.
I thought you had mentioned the revolution we talked about, right?
250th.
Are you saying that classic American authors was another category of ones to keep?
Objection.
The NEH had been funding these letters of Ernest Hemingway for a significant period of time.
That was more than likely another consideration.
But overall, as I understood the administration's priorities, it also had to do with American civilization and culture.
And again, these were decisions that I was making as the acting chairman.
So can you tell me specifically why was this one put on the to-keep list as the acting chairman?
Why it was specifically put on the keep to keep list?
Because.
Because I thought it was in the interest and accorded with the administration's priorities.
Of focusing on American civilization, is that what you said?
And culture.
Correct.
And can we go down?
There's one titled Connection and Community.
Do you see that, Nina?
And this is a grant for, quotes, the arrangement and description of 475 linear feet of Council of Jewish Federation records dating from 1916 to 1999.
Do you recall who put this on the to-keep list?
No, I don't.
Do you know why this was put on the to-keep list?
No, sitting here today, I don't recall the reasons for putting it on the to-keep list.
Do you have any speculation as to why this was put on the to-keep list?
It would only be speculation, and I would prefer not to speculate.
But is your testimony that it was your decision to put this on the to-keep list?
If it ended up on the keep list, ultimately, yes, it was my decision.
So it was your decision, but you don't know why you made that decision.
I can't go back in time and review my discussions with Adam as we were going through them and come up with the exact reason why.
Okay.
Can we go down to The Edinburgh Critical Edition of the Complete Works of Alfred North Whitehead.
Do you see that one, Mr. McDonald?
It's described as preparation for publication of two volumes of the Harvard Lectures and one volume of collected monographs of English philosopher and mathematician Alfred North Whitehead, who lived from 1861 to 1947.
Yes.
Do you recall who put that on the tekeep list?
Presumably I did in consultation with Ann Wilson.
When you say presumably, do you have a specific recollection?
I don't have a specific recollection, no.
Okay, do you know why that was put on the tech list?
Again, as with my previous answer, it would be speculation.
Okay.
And, well, you previously talked about American civilization, American history.
Would this grant fit within that paradigm?
Possibly.
About an English mathematician?
I'm not a philosopher and I don't know his influence in the United States.
It's possible.
So you don't know anything about Alfred North Whitehead?
Objection.
I suppose I know what the average educated person knows about Alfred North Whitehead, which is not a lot.
Okay, but it's your testimony that was your decision to keep this one.
Yes.
Okay.
Can we go down to the works of George Santayana?
I might be mispronouncing it.
Do you know who that Spanish-American philosopher is?
Yes, I'm familiar with Santayana.
Okay, so why was this one on the tekep list?
Again, to go with my previous answer, I can't recall specifically what were the reasons that we talked about to put it on the keep list as I sit here today.
Okay.
Was it you who specifically put this on the tekep list?
I don't recall if it was me specifically put it on the keep list.
And did this fit within American Revolution, American civilization, and that's why it was put on that list?
Objection.
Again, I can't go back in time.
Okay.
Let's go down to Carl Bath's lectures and shorter works.
Do you know who Carl Bath is?
Sorry, Barth.
Yes.
And who is Karl Barth?
Well, he's an important religious philosopher and thinker.
Okay, and he was a German philosopher, is that right?
That's correct.
And a German philosopher's work related to the American Revolution?
Objection.
No, I don't think Karl Barth's work had an effect on revolution or related to it.
Okay, what about American civilization?
Again, that's in general, if you're asking me, I know Barth had a tremendous influence on religious thinkers and theologians in the United States.
Okay.
But he was German.
Yes.
Never lived in America.
Objection.
I have no idea if he did or didn't.
Okay, so can you tell me why this was put on the tech list?
Objection.
Revert to my previous answer.
I cannot recall at this date the reason why he was put on the tekeep list.
Okay.
And you don't recall whether you are the one who put this on the tekeep list.
I was having discussions at the simultaneous discussions with Mr. Wolfson.
I'm not sure what were the reasons that ultimately ended up having this placed on the keep to keep list.
Okay.
Nina, can we scroll or search for one called By the People, the Inclusive Story of Revolution in Virginia?
Do you see this great Mr. McDonald titled By the People, the Inclusive Story of Revolution in Virginia, 1763 through 1800?
Yes.
And do you see the description is the addition of 200 entries to Encyclopedia of Virginia to make more inclusive its coverage of the revolutionary era and the addition of primary sources, artifacts, lesson plans, and digital public history experiences, all in preparation for the 250th anniversary?
Yes.
Okay.
Would you consider this grant to be DEI?
Possibly.
Is that a yes?
Yes.
Possibly.
It says inclusive.
One has to know more about the applicant and what the applicant means by inclusive.
Sitting here today, do you know about the applicant and what the applicant meant?
Applicant.
I think it's over to the right, Nina, if you scroll.
Miss someone at the University of Virginia, Emily Wall, something that we can't see right now.
Renewed Direction Emails00:13:46
No, as I sit here today, I don't know anything about that person.
So sitting here today, you have no idea why this grant was kept while others that related to inclusiveness were terminated?
No.
I'd like to pull up now, sorry, the top of the email chain we've been looking at, which is an email.
This is exhibit 19 again.
This is an email from Mr. Fox to you and Mr. Wolfson on April 1st at 1125 p.m.
Do you see that?
Sorry, which came in?
What's the number?
It's 50604.
The first email at the top.
Yes.
Okay.
Do you see this email?
Yes, I do.
Okay.
And can you see where Mr. Fox says, Mike, we please see attached grant termination letter, which we plan to use for organizations and state and jurisdictional humanities councils.
Do you see that?
I do.
Okay.
And when he says we plan to use, who's he referring to?
The Doge team.
Okay.
And when he says, please see attached grant termination letter, that means he drafted the letter, right?
I don't know that he drafted the letter.
Somebody at Doge.
Okay.
Let's pull up that letter itself, which is, we'll mark this as a new exhibit.
And it's 50608.
This will be exhibit 23.
I'm going to keep this one too.
Okay.
Okay.
Do you recall seeing something of this nature that Mr. Fox sent you that evening, a draft termination letter?
Yes.
Okay.
And, well, let me ask you, did you draft this?
No.
Did anyone else who works at NEH draft this?
No.
Okay.
Mr. Fox drafted it to the best of your knowledge?
I have no knowledge who drafted it at Doge.
Somebody at Joe's drafted this.
That's my understanding, yes.
Okay.
And if you look in the middle of the second paragraph, it says the president's February 19th executive order mandates that the NEH eliminate all non-statutorily required activities and functions.
Yes, I see that.
And is that accurate?
Is what accurate?
That there was an executive order that mandates that the NEH eliminate all non-statutorily required activities and functions?
No, that was not accurate.
So the person who drafted this wasn't that intimately familiar with what was going on at NEH at the time?
Objection.
I have no knowledge how intimately enough the person was.
The person who drafted this thought there was an executive order to basically eliminate most of the agency.
Objection.
I have no way of knowing that.
That's what it would mean to eliminate all non-statutorily required activities and functions.
Objection.
It's just speculation on my part.
Okay.
It would be a pretty big deal to you as the acting chair if there was an executive order to eliminate all of your non-statutorily required activities and functions.
Objection.
If there were such an executive order.
Big deal, yes.
And did you review this letter when Mr. Fox sent it to you?
Yes.
Did you review it closely?
In retrospect, not as closely as perhaps it should have.
Because certainly if you had noticed this, you would have said, hey, there's no executive order eliminating our agency.
Objection.
If I had reviewed it more carefully, yes, that is correct.
Okay.
And in the last sentence, it says, please contact, and then it lists your email address with urgent questions only.
Or sorry, with only urgent questions.
Do you see that?
I do.
Okay.
And did your email address stay in the final version of this letter that went out?
I'm not sure what was in the final letter.
I'll hand you now what is US03375.
And I'll represent to you that this is a final version of the letter, one of the letters that went out.
This will be exhibit 24.
Exhibit 24 mark.
Looking at this letter, do you see whether it was your email address listed in that last line?
In the exhibit you just handed us.
Correct.
Correct.
I do not see my email on this document.
You see, it says please contact grant underscore notifications at NEH email.onmicrosoft.com.
Yes.
And is that an email address you've ever seen before?
Yes.
Before this, before April 1st, 2025, had you ever seen that email address before?
No.
Okay.
Is that a typical email address for a government email address at Microsoft.com?
Objection.
Okay.
And your email addresses all end with at NEH.gov, is that right?
That's correct.
Okay.
So at some point between the draft letter that Mr. Fox sent you that we looked at and this final version, your email address was swapped out for this email address.
Is that right?
Yes.
Do you recall why?
I don't recall, no.
Other than the fact that the email address on the previous document was incorrect.
The one for you, Dennis?
Yes.
Okay.
Do you recall ever asking that your email address not be listed on these termination letters?
No, I don't recall asking, but normally terminations would be handled through the Office of Grant Management.
And that would, so in that instance, emails on grant terminations wouldn't be sent to the chairman.
Okay.
Through the chairman's office.
So that's a no, you don't recall saying, please take out my email address.
I don't recall.
Okay.
And the signature that's typed at the bottom, slash S slash Michael to McDonald.
Do you see that?
Yes.
Did you write that there?
I approved the use of it.
Did you write that there?
Did I write S, the slash S slash McDonald?
I don't understand the question.
Yeah, did you type in slash S slash Michael McDonald?
No.
Okay, who typed that in?
Presumably the people at Doge.
Justin Fox.
I don't know.
Can you think of a single government document in your entire government career where you've ever signed an official document that way?
No.
Okay.
Because you normally, you have a specific way you like to sign your signature on documents?
Well, we have electronic signatures now.
I don't know that there's a specific, I have a favorite or specific way.
Okay.
But this is not something that this is an anomaly fair to say?
It would be an anomaly, yes.
Okay.
Do you think it's appropriate for a document notifying someone that they're going to, their grant is being terminated to write, you know, slash Michael McDonald as a signature?
I don't see why it would be considered inappropriate.
Okay. Thank you. Thank you.
I'm now gonna hand you a document produced as US 9562.
There you go.
This will be exhibit 25.
Exhibit 25.
More interesting.
And do you see at the bottom there there's an email from Justin Fox to you dated April 2nd, 2025, 1223 a.m.
Yes.
And you see in the first sentence he's asking for an email in a meeting with you or confirming a meeting with you the next day?
Yes.
And you say he writes, please be prepared with your view of the core capable and mission-aligned folks needed to execute on your renewed direction prioritizing America First Grants.
Do you see that?
I do.
Okay.
And when he says your renewed direction, that's referring to you as the acting chair?
Yes.
Okay.
And who gave you that direction?
I'm not sure he's suggesting that anybody gave me any direction.
And I'm not following the question.
Sure.
So somebody writes, you know, they reference your renewed direction in prioritizing a certain type of grant, right?
Did you know what he was referring to when he said that?
Well, just that, I'm not sure what, I don't have a clear recollection.
I could speculate that please be prepared with your view on the core capable and mission-aligned folks needed to execute on your renewed direction, prioritizing America First grants.
We're canceling, given we're canceling many of the small wasteful grants, our sense is that this would be a tight group which we can walk through.
Again, I think it was, again, I can recall something clearly from April 2nd of 2025 as I sit here on January 30th, 2026.
My sense, though, is that, again, given their prior experience at other agencies, they wanted a group of people at NEH that they could trust to execute without slow walking.
And what does America First mean to you?
How would you define that?
As you probably know, there's a good debate on the right about what America First is.
You're asking for my definition in this sense, at this point in President Trump's second mandate, in terms of what it meant for the humanities was, again, a concentration on American civilization, Western civilization, Judeo-Christian civilization, things of that nature.
And also, of course, as I'm sure you saw, we put out a statement on our website that talked about what the agency's priorities were going to be under the Trump administration.
And I think we laid them out there.
Sure.
So when you say Judeo-Christian civilization, is that what you said?
Yes.
That's part of America First?
You're asking my opinion.
In the context of that you said in this context, you were giving your definition.
Well, no, there are two things on the table.
One is my definition of America First.
What did this term mean back on April 2nd?
What was my understanding?
Probably my elementary, but again, I'm speculating.
An elementary understanding would just be to rejoin what we were discussing a moment ago about projects dealing with the founding, projects dealing with American civilization, American exceptionalism.
Okay.
So Judeo-Krishna is not part of that in the context of NEH grants.
So I didn't catch that.
I'm just trying to understand when it says America First Grants, and we're talking about NEH grants.
Is Judeo-Christian civilization part of America First Grants in that context?
This was Justin's term.
I don't know what Justin meant by America 250.
You're asking me, A, what I thought America First meant in general, and B, what it meant in this specific context.
Appeal Procedure Disputes00:11:37
And I think Justin was most likely in a speculation conflating A250 America, semi-quincentennial stuff with America First.
I understand.
Thank you.
Okay.
I'd like to now go to an email chain that begins with US 2744, number 26, exhibit 26.
And if we could look at the email on the very bottom of the first page from Richard Brundage sent on April 1st, 2025 at 537 p.m.
You see that?
Yes.
And this is an email from him to Adam Wolfson and Pranita Raghavan, is that right?
Pranita Raghavan, yes.
And its subject line is termination procedures?
Yes.
And you see he writes, attach the termination procedures for your review, before we can proceed with executing the terminations, the office of the chairs needs to make several key decisions.
Do you see that?
Yes.
And so when he says, before we can proceed with executing the terminations, that means we, as in Richard and his team at NEH?
Yes, so in conjunction with Doge, I would believe at this point.
You think when Mr. Brunt visits Brundage?
Yes, it's Brundage.
When he wrote this, we said, attach to the termination procedures before we can proceed with executing the terminations.
Do you think he's referring to Doge there?
It's unclear to me.
Okay.
And then if we go up the chain, you see an email from Ms. Voyatsis to Richard Brundage the next day, April 2nd.
Do you see that?
Yes.
And she says, hi, Richard, Michael Ford me your outline of NEH termination procedures and asked me to follow up.
The main point of which you may already be aware is that agency leadership has agreed to allow Doge to handle the termination notifications to grantees.
Do you see that?
Yes.
So is she informing him there, hey, I know you emailed me these things, but actually Joe is just going to be the ones executing on this.
From what she said.
I'm sorry.
I'm sorry.
Did you repeat the question?
In the context of the email that's below, is Ms. Voyatsis telling Richard, you emailed me yesterday about grant termination procedures.
You said we're going to begin executing.
And now she's saying, actually, no, it's Doge who's going to do it.
And agency leadership has agreed to that.
Is that a fair characterization?
From her sentence, she says he may have already been aware of the fact.
She's just reiterating it to him.
So you think when Richard sent that email on April 1st, he was already aware that Doge was executing the terminations?
Well, there is a bit of a time lag between the two.
So her email is on Tuesday, 5.37.
She writes him on Wednesday, April the 2nd of 2025.
He may have been informed by then that Doge would be handling the terminations, is all I'm saying.
Okay.
And do you see in the paragraph that has redactions, it says OGC has not seen the wording of the termination notice.
Yes.
So does that mean what it says that Ms. Voratzas and the Office of General Counsel had not seen the termination notices at that point?
It says what it says.
And is that correct to your understanding?
Yes.
And did they see the termination notices before they were sent out to the grantees?
Yes.
Can you agree that the termination, when you terminate a grant, there's legal aspects to that and potential legal liability?
Yes.
And it is unusual in your experience for the Office of General Counsel, the general counsel to not review a legal document like that before it goes out at your agency.
Objection.
I think I just said they did review it before it went out.
I thought you said they didn't.
You said they did review it?
Yes.
When did Ms. Voratsis review this document before it went out?
Not, sorry.
Let me rephrase the question.
When did she review the termination notice before it went out?
Objection.
Again, I can't say with any precision whenever the draft terminations notices came in.
I recall going over them with her.
Okay, so we went over previously that they came into you on April 1st, right?
Objection.
The email chain we were just looking at was on April 1st, you recall?
Yes.
Okay.
And then we just looked at the sample termination notices, right, that listed your incorrect email address at the bottom?
Yes.
Okay.
So this email from Ms. Waratsis is sent on April 2nd, and it says 1344.
I think there's actually a weird time difference issue.
I don't know if you guys have noticed this, where it says 000.
That's Greenwich Weeds time.
So I think it's actually, it took me a while to figure this out.
I think it's actually four hours earlier.
So let's call it 9.30 a.m.
So at that point on April 2nd, OGC had not seen the wording of the termination notice.
Objection.
I have no way of knowing if what time zone we were operating under when she got it based on this.
At the time this email was sent, she had not seen the terminate, the wording of the termination notice.
Objection.
She says as much, yes.
Okay.
But your testimony is that when you received it the day before, you went over it with her.
I can't reconstruct the events.
I can't reconstruct when we received them and when we reviewed them.
Okay.
And do you see here in the final paragraph, it says after the redaction, it says accordingly, NEH won't follow the timeline you provided or allow for appeals.
Yes.
And that meant that NEH was not allowing the terminated grantees to appeal the termination decision, is that right?
That's correct.
And I assume you're familiar with NEH's general terms and conditions of awards?
Yes.
And are you familiar that those general terms and conditions provide grantees a right to appeal any grant termination?
Yes.
And so in contravention of those, NEH was not providing terminated grantees a right to appeal here.
Objection.
Yes.
And why was that?
In the discussions with the Doge team, we did discuss the appeals process, and I pointed out to them that we had provisions on appeals.
And they advised me not to follow those procedures.
Did you recommend to them that those procedures should be followed?
I don't recall specifically.
I'm sure I said I imagine that I said that these are the process, this process that we would normally follow.
And Doge, as we discussed previously, was on a timeline.
I also pointed out the possibility that there would be litigation if there would likely be litigation.
And Doge was unpersuaded.
And so if you were doing this on your own without the involvement of Mr. Fox and Mr. Kavanaugh, you would have allowed, you would have followed those appeal procedures set forth in the general terms and conditions.
If the hypothetical again, it's assuming many things.
If the president hadn't directed the Doge to come to NEH and to be involved in this process, it's difficult to say how I would have approached it without all of that.
Let's, you know, again.
I'll withdraw the question.
You testified that you tried to persuade them and they were unpersuaded about following the appeal procedures.
Yes.
Okay.
And your testimony remains that they were your consultants.
Objection.
My testimony remains that we are all part of the executive branch and instructed by the president to cooperate with Doge.
Doge team was giving us help in eliminating grants that were in line with the new administration's objectives.
And they asked me to be the final decider and to ratify those decisions, which I did.
So when Doge was not persuaded to follow the approal procedures, did you have discretion to overrule them and say, no, we're following them?
Did I have discretion to overrule them?
Objection.
I believe, yes, I would have had discretion to overrule them, yes.
Even though they were emissaries of the president and the testimony you gave a moment ago.
We're going down a hypothetical road about what would have ensued if I had done that, which we'll never know.
I saw value in what they were doing and the way that they were doing it, even though I had disagreements with different aspects of it.
So I wasn't prepared.
this is different for example from the for example the reduction force at the agency they wanted to reduce the initial plan was to reduce the workforce beyond what it ended up being because in the exercise of my discretion i had discussions with them over a period of time
telling them why we needed certain positions, and they were amenable to not reducing the number below an amount that I thought necessary for the operational maintenance of the agency.
Sure, but I'd like to just keep us focused on the grant terminations.
Division Office Messages00:15:04
Yeah.
And specifically the use of appeal procedures.
You tried to persuade them we should use these appeal procedures.
It's in our general terms and conditions, which are incorporated into every award.
They were unpersuaded.
And you're saying you felt you were at liberty to say, sorry, guys, this is my call.
We're doing appeal procedures.
Objection.
I would not say that I made an effort to persuade them.
What I told them was that these are the procedures in place that we normally follow.
They said that there was no need to follow the procedures, and if there was litigation, which has since occurred, this would be addressed in the litigation.
That it was a question of it involves a lot of legal questions, which we need not get into.
Okay.
I'd like to now pull up what's Bates stamped as US 5067 and this is Exhibit 27.
Exhibit 27, Mark.
Okay.
And do you see at the bottom of this chain there's an email from someone named Joanna Capps to other individuals, including Adam Wolfson.
And Joanna Capps writes, this is on April 3rd.
We're writing to request an emergency meeting of the LMC at your earliest convenience.
Staff are unable to fulfill their duties without more information about the status of terminated awards.
Do you see that?
Yes.
And so is what Ms. Capps is saying here is that the NEH staff did not have information about the status of terminated awards.
Objection.
So the question is, please.
As the time that Ms. Capps wrote this, is what she's indicating is that staff at NEH did not have information about the status of terminated awards.
Objection.
What she says is that staff are unable to fulfill their duties without more information about the status of terminated awards.
They felt they had inadequate information, is that her they felt they needed more information is what she's saying.
Okay.
And then there's an email from you in response.
I guess this must have been forwarded to you where you wrote, Hi, Adam.
I believe it would be useful to send a message to the division office heads on the program side to tell them to tell the program officers, quote, in the event you receive inquiries from grantees about the termination of their awards, they should respond that the reasons for the terminations are set out in the communications that the grantees received and that they, brackets, the NEH program officers and brackets, can provide no additional information.
Do you see that?
Yes.
So you were advising Mr. Wolfson here to tell program staff to give no information beyond what's set forth in the termination letter to terminated grantees.
Is that right?
Objection.
Well, the next sentence is ask him if he agrees or has concerns.
So I was setting out my initial thoughts, which yes, were as you stated when you read that paragraph.
Okay.
And if you were a terminated grantee, you would want more information, right?
Objection.
I can't put my place in the.
Okay.
Why didn't you want to give them more information?
objection.
The determination notice was sufficient to the information that contained.
Okay.
Let's go to What's marked as starts with US 4764 and this will be exhibit 28?
And if I could ask you just to read down to the very end of the chain or the second to last page, I should say.
I'm sorry, the very end of the chain, the last page.
The last page.
Yes.
You see that this is a grant termination notification that went out to someone named Dr. Alice Weinreb.
Yes.
And do you know who Dr. Alice Weinreb is?
I do not.
Okay.
And you see the next email up the chain is an email from someone named Angelica Vaca at Loyal University of Chicago that's essentially, well, it's emailing you.
Do you see that?
She, yes.
And she's essentially pleading the case for Dr. Weinreb's grant.
Oh, yes.
When you say, oh, yes, is that because you just remembered this one?
I have a vague recollection of this one.
No, this one, yes.
And then you see you email Ms. Voratis and you wrote, do you see Alice Weinreb's name on Justin's spreadsheet?
I couldn't find it.
Do you see that?
Yes.
And Justin is presumably Justin Fox?
Correct.
Okay.
And why'd you call it Justin's spreadsheet?
This is a spreadsheet that he had prepared.
Okay.
And so, am I understanding this email right, that you were looking through Justin's spreadsheet to see if this particular grantee's grant was terminated, and you were saying, I don't see it on there?
That appears to be the case, yes.
Okay.
So as of April 4th, you had no idea whether Dr. Alice Weinrib's grant had been terminated.
Objection.
Well, I didn't know who Alice Weinreb was.
I wasn't familiar with the grant or if it had been terminated, correct?
Okay.
But you terminated the grant.
Yes.
If it was terminated.
Because again, there were 14 over 1,400.
I can't recall all the names of the individuals involved.
Okay.
And then you say in the next line, also, shouldn't someone at NEH be checking the grant.notification at NEH email dot on Microsoft.com email box to see if people have tried to contact us with quote urgent questions.
Do you see that?
Yes.
So this is now about two full days after the grant terminations first went out.
Is that right?
Yes.
And so over those two days, to your knowledge, nobody was checking that inbox that you had directed folks to contact.
I didn't know if they were checking or not.
I think that's the import of what I wrote then.
Okay.
Do you have any knowledge that anyone was checking it over those two days?
Checking.
I have no recollection.
Okay.
And then you wrote, should I have someone in OGM respond?
Do you see that?
Yes.
And what does OGM stand for?
The Office of Grant Management.
And why did you want them to respond rather than you, even though the email was directed to you?
As I mentioned earlier, grant terminations are handled through Office of Grant Management rather than through the chairman's office.
It's the appropriate office to handle inquiries of this kind.
Okay.
Then if we go up another email, I'm sorry, go up a few more emails.
So on the first page now, the second, the third email is an email from you to Ms. Boratsis on April 4th, 1.50 p.m.
Do you see that?
Yes.
And you say, well, let's kill two or three birds with one email.
One, the reply letter to the inquiries from the State Humanities Councils.
Two, the letter, parentheses attached from Professor Alice Alice, I think you meant Alice Weinreb.
And then three, someone in OGM checking the urgent questions mailbox on the termination letters.
Do you see that?
Uh, yes.
Okay.
And you see, Ms. Moratz has responded, yes, I will write to Richard ASAP saying those three things.
Yes.
And ASAP means as soon as possible?
Yes.
Okay.
And then you responded, and this is at 5.52 p.m. on Friday, April 4th, whenever you can, it's not that urgent.
Thanks.
Yep.
Okay.
Why was it not urgent?
Because there were a lot of other things going on at the same time.
Okay.
So it's sent out this large-scale termination of grants.
Grantees had no notice this was coming, right?
Correct.
So you can understand it was a shock to many of them to get this grant termination email from a Microsoft email address.
Yes.
Okay.
And we talked before about how meaningful NEH grants can be to someone's life and career.
Yes, we did.
Okay.
And you set up this email address specifically to receive their questions in response.
And it's now two days later, and you're saying it's not that urgent to see if anyone's reaching out.
Objection.
Well, again, at the same time, we were dealing with placing people on administrative leave, reduction in force, cancellation of open contracts.
We were dealing, it was a lot of things were urgent at that time.
Okay.
Let's pull up.
I'm going to hand you an email that starts email chain that starts with US57302. You can see my scribbles.
It's just what I'm going to ask.
Thanks.
Okay.
I'm sorry, yes, new exhibit.
Okay, exhibit 29 March.
Okay.
You see, if we go down, the first email on this chain is an email from Justin Fox to you at April 5th, 441 p.m.
Yes, I see it.
And he writes, Mike was reviewing grants today, and these appeared related to American Heroes slash veterans slash America 250 and were canceled last week.
Do you approve these cancellations to be rescinded?
I will follow up from the grant underscore notification email with UCC pending your permission.
Let me know.
So, and then you see he lists four grants, I believe, right?
Yes, that's correct.
And the first of those grants is to an organization called National History Day.
Yes.
And it's for a grant titled A More Perfect Union, America 250, or is that the name of the NEH initiative?
That would be the NEH initiative.
Okay.
So their grant was awarded for that purpose of that initiative, it seems.
Yes.
Okay.
And then you respond to Mr. Fox the next day.
I'm sorry, the same day stating.
Hi, Justin.
I recall discussing each of those grants with Adam as we went over the spreadsheet.
Based in our experience, we did not believe National History Day would necessarily be a reliable partner in implementing the types of activities that would align with the administration's vision for the 250th, even though since it's a cooperative agreement, we would be involved.
And then you discuss the other three grants, and in your last paragraph, you say, but if there is leeway to save those grants and take a chance that we could work with National History Day to make its vision accord with the administrations, then I'd say yes.
Please have grant management rescind the terminations.
Do you see that?
Yes.
You recall sending this email?
Yes.
Okay.
And why did you say you did not believe National History Day would be a reliable partner to the administration?
As I said, it was based on the experience I had observing previous the agency's previous involvement with National History Day.
National History Day is the name of an organization.
There is an organization that runs it.
I'm not sure I can call it a specifically made you think they would not be a reliable partner in my personal view.
The organization and the activities that it engaged in tilted left.
Progressive in nature?
Yes.
Okay.
But then you say, but if there is leeway to save those grants and take a chance that we could work with National History Day, then I'd say yes, please have them rescind the terminations.
So when you say leeway, you mean leeway from Doge?
Is that right?
Yes.
Okay.
And you're saying here, yes, you would like that leeway to take a chance to work with them and make their vision accord with the administration.
So please rescind that have grant management rescind that termination.
Am I reading that correctly?
Yes.
Okay.
And so then Mr. Fox responds, thanks, Mike.
Copy on National History Day will not rescind that termination.
Do you see that?
Yes.
And he writes, when he says will, it's WILL, not W-E apostrophe L-L.
So he's saying, I will not rescind that termination.
Objection.
Let's put, I'll rephrase the question.
Is he saying that that termination will not be rescinded?
Yes, that appears to be what he's saying.
Okay, so even though you expressed that you wanted to rescind the termination, he's saying no, it will not be rescinded.
Objection.
He's saying he's saying that the follow-up sentence, which is always the case when we decide not to fund the project, the applicant is always free to come back and apply for funding in the future.
Unfortunate Recording Moments00:15:46
As he says, if they make a strong case or realignment, then we can work with them.
So his position was with, again, with which I accord or record it, was let's not take a chance now.
Let's see if they're willing to work with the incoming administration in the future, not terminate the grant.
My thing about leeway, I wasn't, I was never been a particular fan of National History Day, but we were in the early months of the new administration.
It might be possible that we could have done something with them that would not have been contrary to the administration's properties.
Right.
So you testified a few minutes ago that you were asking Mr. Fox for leeway because, yes, you wanted to rescind the termination, right?
That's your testimony?
Objection.
Saying if there were I wrote what I said is coming from what I wrote, if there's leeway to say those, forgive the typo, that grant and take a chance that we could work with, so there's a lot of hypotheticals building to make its vision accord with the administration, then I'd say yes.
It's like there would be work involved to do that.
And he's saying my reaction in seeing what he wrote is that, why put in the effort?
Let's just kill the grant.
And I was perfectly fine with that.
Okay, so Mr. McDonald, about five minutes ago, you testified very clearly the record will show that you were saying you were asking if Mr. Fox would give you leeway because if there was leeway, you wanted to rescind the termination.
It seems now that we've gone up and you realize sort of where this is going, you're changing that testimony.
Objection.
I would disagree.
You think the testimony you just gave is the same as the one you gave about five minutes ago?
Objection.
The testimony that I gave is my view of this as I look at it as a whole again.
Okay.
Mr. McDonald, you understand that the judge might be reading or viewing this one day, this deposition?
Objection.
Okay.
Who was responsible for the National History Day grant not being rescinded?
Objection.
I made all of the decisions about termination of grants.
Can you answer my question?
Who was responsible for the National History Day grants not being rescinded?
Not the termination not being rescinded.
I was responsible in the end.
Okay, so and that's your sworn testimony based on this email chain?
Objection.
That's my testimony.
Okay, I'd like to now turn away from the emails.
Sorry, if we're going to go on a new subject, take a break.
Yeah, sure.
Can we?
How much time have we been running so far?
We're at five hours, 20 minutes.
Okay.
Yeah.
Want to say a five-minute break?
Five minutes.
Sure.
Thank you.
Stand by.
The time is 401, and we are off the record.
Time is 409, and we are on the record.
Okay, Mr. McDonald, do you recall on April 3rd, which is the day, one to two days, depending on how you count after the grant terminations that you met with NEH staff?
Yes.
And do you recall where you met?
I believe it was a virtual meeting.
Okay.
And your call around how many staff attended?
No, I don't.
Okay.
Do you recall speaking to staff about the grant terminations that had just happened?
That was one of the topics that came up.
Are you aware, Mr. McDonald, that there is a recording of that meeting that's posted on a public website that's referenced in the power complaint in this matter?
Yes.
Objection.
Okay.
And have you listened to that recording?
Yes.
And when you were listening to that recording, and we're going to do it again now in a moment, parts of it, not the whole thing.
Did you recall it anything inaccurate in the recording, doctor?
Objection.
Go ahead.
I have no way of knowing whether the recording was doctored or not.
Okay.
We'll go through it and just talk about specific pieces then.
I am going to hand you printed out transcripts of the recording, and we're also going to play the audio so we can hear the actual words.
Yes, this will be an exhibit.
Exhibit 30 March.
And for the record, this is posted on a website called rev.com.
Does that sound right?
It means nothing to me.
Okay.
And I'll represent to you that this is the same recording that's linked to in our complaint.
Will you accept that representation?
Yes.
Okay.
Let's, Nina, if we could pull it up on the screen.
On the screen, with it?
Yep.
This was Exhibit 30.
And I'll ask the court reporter as we're playing the recording if you can transcribe what's being spoken on the recording.
Thank you, and Mr. McDonald, for this first one, I'm just going to ask if you track what's said on the recording with what you have in front of you, just to confirm that it appears to be accurate transcription.
Nina, can you play the first 30 seconds, please?
Not very conservatively.
But it's still on its very tentative phase.
Things are moving.
The administration wants to go very quickly on these instructions.
It's not giving us that much notice ourselves.
And we've been in the constant state of communications, beginning early in the morning and going into late in the evening to scarcely as we're directed to do.
And so it's close to this.
Okay, we can stop it there.
Then appear to the transcription appear to be accurate of what's being said in the recording.
Yes.
And I'm going to skip around to different points in the recording and play the audio.
And we can use the transcript to follow.
But if at any point what is said on the transcript appears to you to be different from what's on the recording, please just point that out.
Yeah, I will.
Thank you.
Okay.
We're going to start with the clip at the 354 mark, Nina.
And you can see that at the very bottom of the first page of the transcript.
Yes.
Okay, this is starting at 339.
Trying to get it to be an exact spot, but I think that's where it's going to have to start.
Oh, if you go to the transcript in the folder, Nina, do you have it there?
In the Word document?
So you can just click on 354 and it'll take you to the exact spot.
I got it.
Okay, perfect.
Thanks.
And I also thanks.
And I also really appreciate the chance to meet and to hear that.
Even final information really is very, very helpful.
So it's very appreciated.
Regarding the expectation of hearing some administrative leave is as well as, as you said, going forward with the RIP, is the practice that those who are on a RIP list receive administratively first and some fact remain.
Just wondering what that might look like as we get notice here.
And then my second question is about the grant terminations that we have been fielding questions about and seeing today.
And I wondered if it was possible to list knowing sort of what the extent of the terminations were, because we don't know.
Were they all grants?
Were they from the last four years, were they those grants that we had identified as contrary to the executive order?
I think that the order points additional and certainly look broader to what reports, but you don't have a sense of what the extents of the terminations are.
Well, so questions that we're a smaller.
Can we pause it there now?
The person who just started talking, is that can you authenticate that's your voice?
We just started talking.
Yes.
It appears to be my voice, yes.
Okay.
If at any point, you don't think it's your voice, will you let me know?
I will.
Okay.
Nina, can you hit point?
It was broader than the executive orders.
The initial case that we were asked to adopt were to be conducted, and you know, because you all participated in the process, have to do with funding that doing this being contrary to the directives of the executive orders.
But that's another perfect example.
That is that by the end of that process, the ground has shifted from one meeting that we have with another.
And it's a bit clear that they were looking at the tale of the board spending with the previous administration, not necessarily contributing to what else would be money that it spent full or trivial or just plain cylinder.
And Adam and I spent a lot of time, a couple of days, filling over lists and talking with them and making choices left and right.
Final termination notices happen.
We did have some effect, saving a number of grants that had otherwise been targeted.
But it's from the interest of a large, the overwhelming majority of what's been the use of the administration and not in accord with the direction that the president wanted to be able to take, and therefore the termination went out and they also developed great urgency there.
So as they said in the notification letter, that was exceptional circumstances and not immediately adhering to traditional notification processes, even though I certainly pointed out what our official notification processes were, but as they said, the termination notice they didn't have to deal with the applied in this instance.
So that obviously had a triple part of the question.
Okay, we can pause it there.
So that was you speaking that we just heard again.
Okay.
And if you look at the transcript, right under where it says 625, you say the final termination note is just we did have some effect in saving the number of grants that had otherwise been targeted.
And does the we there refer to you and Mr. Wolfson?
Yes.
And when it says targeted, does that mean targeted by Doge?
Yes.
And when you say saving the number of grants, that means Doge had put some grants on a list to terminate, and you and Mr. Wilson were able to save them, meaning pull them off that list.
Is that fair?
That's fair.
Okay.
And then the next sentence, you say, unfortunately, sorry, the determinations of the overwhelming majority, unfortunately, in the views of the administration, did not accord with the direction the president wanted this agency to take.
And therefore, the termination went out.
So you used the word unfortunately there?
Yes.
And when you say unfortunately, that means you thought it was unfortunate?
What I meant in that instance, and I believe I've addressed this earlier, is that having worked at the agency for over 20 years, I'm familiar with a lot of humanities projects that I think may have value, but that people on the outside, whether they be on Capitol Hill or in the White House, think do not and think that should be eliminated.
Right, but when you say I'm focusing on the word unfortunately, that just means that you thought it was unfortunate, right?
I thought it was unfortunate that certain grants that were in the traditional realm of grants that NEH makes were eliminated, yes.
And so you thought you decided to terminate grants that you thought it was unfortunate to terminate?
There was a larger interest at stake, which was a larger interest at stake, which was the administration's wish to eliminate waste.
There was a competing interest.
The Doge was representing on its behalf the administration as I viewed it.
And as between the competing priorities and the fact that I had agreed to serve as acting chairman, the question was, I'll take that as an answer.
And then you say, and they also felt there was a great urgency here.
Provided Input Changes00:05:27
And for the record, they is referring to Mr. Kavanaugh and Mr. Fox.
That's correct.
Okay.
And then you wrote, as they said in the notification letter.
Again, they as Mr. Fox and Kavanaugh.
Yes, as I had pointed out earlier, we reviewed the notice and made some corrections to it.
This is a what would I say?
This was not a what's the word I'm looking for?
It was Not the most appropriate word to have used in that instance since we did have input on it and I certainly ratified the sending of the termination notice.
Sure, but just when you said they said in the notification letter, you meant what Mr. Fox and what Mr. Kavanaugh said in the notification letter.
Yeah, with the input that we provided.
Okay.
What input was that in the termination letter?
I don't recall offhand, but I do recall that we made some suggestions for changing the wording of the termination letter, but there are obviously still mistakes in the termination that we would have done well to have caught before it went out.
Okay, let's can we pull back up the two exhibits that were termination letters?
I'm sorry to pull those back out.
These were exhibits 23 and 24.
So is this 3375?
3375 is 24, exhibit 24, and 50608 is the prior one.
Yes.
Okay.
And 50608 to recall is that the draft letter that Mr. Fox sent you on the evening of April 1st, that's why it has brackets at the top.
Yes.
And the one on 3375 is a final letter that was sent out.
Does that seem correct?
Yes.
Okay.
And you just testified that we, meaning I think you meant you and Mr. Wolfson, provided input on the termination letter and that they made some changes were made as a result.
Is that right?
Objection.
I don't believe I mentioned Mr. Wolfson being involved.
Sorry, so you provided input and that input was reflected in the final termination letter.
Yes, yes.
Okay.
Can you tell me what changes between the draft letter and the final letter reflect your input?
Well, if you look at the first sentence of the second paragraph, you notice that there was the insertion of this provision to CFR 200.340.
And that was something that we suggest they include in the termination letter.
Okay.
Anything else?
Well, as I said, I got my email wrong, so that was not included.
And then there was the discussion about contacting the Office of Grant Management rather than me.
I think that was the changes.
Okay.
The only other change I think I see is in the final sentence.
The draft said, we wish you well.
Oh, yes.
Sorry.
So is that your input to take it out?
It didn't seem appropriate, no.
Okay.
So when you say you provided input, what you're referring to is the solely the addition of, as outlined in 2 CFR 200.340.
Objection.
Well, it wasn't, there were these other changes as well.
So it wasn't simply that.
Okay, so it was that addition plus changing the email address and not wishing people well.
Objection.
Yeah, those appear to be the changes.
Okay, thank you.
You're welcome.
And then just going back to that same portion of the transcript, you're right.
So as they said in the notification letter, that it was exceptional circumstances and they would not be adhering to a traditional notification processes, even though I certainly pointed out to them what our traditional notification processes were.
Do you see that?
Yes.
And again, the they there is Mr. Fox and Mr. Kavanaugh?
Doge.
Doge.
And so that meant they would not be adhering, meaning Mr. Fox and Mr. Kavanaugh would not be adhering to additional notification processes, even though I, meaning you, Mr. McDonald, pointed out to them what they were.
That's correct.
Okay.
So it was their decision not to adhere to the traditional notification processes.
Conjecture on Scope00:04:35
Objection.
They recommended that we not adhere to the traditional notification processes in the interest of time, and I accepted their recommendation.
Okay, did you say that here to your staff?
that they recommended it and you accepted that recommendation in this no i did Okay.
All right, Nina, can we play the clip starting with 737, please?
Well, if your delight is going to be the same, sure.
Actually, if I could just follow up on that first, what you just responded to, I have been surprised just about what awards I've received reports that have been terminated, some from, say, our National Digital Newspaper program that were digitizing newspapers for, you know, Revolutionary War period.
Newspapers seem very too picky.
So I do understand.
So what you're saying is there are some grants, we just don't know which were able to be seen by the administration as appropriate.
Probably thinking of, you know, do you have a sense of what percent of our awards might have been able to beat that high bar?
And I certainly appreciate making the case for many awards as you did.
Did you judge from my book, but I would say that upwards of 80 to 90% of these awards went by the wayside.
Okay, we can pause it there.
So the speaker we just heard who said under the 836 mark, it'd be conjecture on my part, but I would say the upwards of 80 to 90% of approved awards went by the wayside.
That was you speaking?
Correct.
Okay.
And when you said it would be conjecture on my part, you were referring to the scope of the grant terminations?
Yes.
Objection.
Okay.
So as of April 3rd, you had no idea what the scope of the grant terminations were.
Objection.
No, I did have an idea of what the scope was.
I just didn't have an idea of prize percentage or number.
I knew that it was a significant cull of open awards.
Okay, but you just testified a moment ago that you didn't know what the scope was, that that's what conjecture was.
objection?
I was aware that a significant portion of grants had been terminated.
I was not aware of the exact number.
Okay.
At least at this time.
Since then, I think the number was 1478 or something like that.
Sure.
But this was April 3rd, so this was the day after the termination.
Right.
And also on April 3rd, we were dealing with staff on administrative notice, the riffs, And all of the agitation that goes along with that.
So there were a number of considerations.
And of course, I don't know about you.
I'm an early riser.
I normally get up at 4 o'clock in the morning.
When it's late in the day, I'm not functioning at my best.
But as of April 3rd, the day after the termination, you didn't know how many awards you had decided to terminate.
Objection.
It didn't occur to me to inquire about the exact number of awards.
Okay.
You'd have to engage in conjecture to know how many awards you terminated.
Objection.
To arrive at the final number, yes.
Okay. If we can go to the 10.01 mark.
Non-Government Email Accounts00:04:19
but doge And they applied the same methodology here.
So if you could pause it there, again, that was your voice who was speaking just now?
Yes.
Okay, after the 1031 mark?
Yes.
Okay.
And so you're saying when the staff member asked you what was the rationale behind that, referring to, I believe referring to not using the EMS system, you say the rationale was because Doge just said that's the way it was going to be.
Objection.
That's not what I said.
Okay.
What did I get wrong?
Rationale was because what I said at the meeting was that was the way that Doge had operated at other agencies, and they wanted to apply the same methodology, is perhaps not the exact word, but the same process in this instance.
And so your testimony is that other agencies Doge sent out grant termination notices themselves?
I'm not or didn't do at other agencies.
I was speculating that they had operated that way on the basis of what they had told me in meetings about they knew what they were doing.
They had done this at other agencies.
Sure.
Did they tell you we've sent out grant termination notices ourselves and other agencies?
I'm pretty sure that they did.
Do you know which agencies those were?
No, I think it might have been IMLS.
Any others?
I'm just speculating.
Yeah.
And they said that at those other agencies, they had created a Microsoft email account and sent out the grant terminations from there.
I don't recall it being that detailed.
It was just the overall process about sending out grant terminations.
But whatever their methodology was, you weren't going to question it, right?
Objection. I did not question.
Right.
You didn't question whether it was appropriate to send out official grant termination notices from a Microsoft non-government email account.
That's correct.
Objection.
But it was your decision to send out some from that Microsoft email account?
Objection.
As I've repeatedly said, yes, ultimately it was.
Okay.
I'm just trying to okay.
Objection.
I'd appreciate if you don't do things like roll your eyes at the witness and things like that.
It's really disrespectful.
So just to make sure I understand then, your testimony is you didn't question why grant termination notices would be sent out from a Microsoft non-government email address, but it was your decision to send out grant termination notices from a Microsoft non-government email account.
Objection.
I think this may have come up previously in my testimony that the Doge team was concerned about the degree of cooperation that they would get from the NEH staff, witnessed the fact that we had a surreptitious recording of my remarks.
Therefore, they preferred to do it, to use their own process for doing it, to avoid the possibility that staff that was opposed to what we were doing would seek in some way to impede it.
Okay.
Can we go ahead to the 2106 mark?
This is on the bottom of page 5.
Saving Grant Terminations00:03:05
Yes.
Nina, can you believe that?
Well, as when we were going through the list, Adam and I recognized that there was a lot of work that was created by the advocates for the staff.
Again, we did our utmost to save applications, but we thought we'd gotta look for your credits to the lead minister to the working people and staff.
And that were really excellent projects.
And just say we did what we could.
Okay.
So again, that was Ognina, can you pause it?
That was your, you were speaking just now in the reporting?
Yes.
Okay.
And when you say, again, we did our utmost to save applications that we thought would not only be a credit to the administration, but to the work of the people and the staff.
When you say we, that means you and Mr. Wolfson.
Correct.
And save application means not terminate grants.
Yes.
And when you're saying, you know, sorry.
When you're saying they were really excellent projects, and as I said, we did what we could.
Reading that in context at the beginning of the sentence I just read is what you're saying there.
We did our utmost to save things.
We did what we could.
We saved some, but we weren't able to save all the ones we wanted to save.
That's fair.
And when you say save, who are you saving it from?
Save it from, save it.
Saving it from grant cancellation.
Which you did.
Yes.
Objection.
So you were trying to save grant terminations from your own grant terminations.
Objection.
As I said, there were larger matters that it wasn't simply the fact of grant cancellations.
There were other considerations concerning the administration's priorities.
Okay.
Can we go to, actually that is, sorry.
I have one last question on that.
Is there any particular grant that comes to mind that you wanted to save from termination but you weren't able to at the time?
No, although afterwards there were.
There were individual grants that came to my attention.
For example, one involved, if I'm remembering correctly, the TREE OF LIFE synagogue in Pittsburgh, and I certainly felt strongly that that cancellation was an error.
Confidential Information Articles00:05:25
And did you?
Was that cancellation rescinded?
Yes, I rescinded that.
Okay, when was that?
I don't recall the exact time.
Was it April or was it much later?
I can't say.
I don't remember.
I don't think it was long afterwards.
But once it was brought to my attention, I instructed grant management to rescind the termination.
Okay, I'm gonna hand you now a text message exchange between yourself and Mr. Wolfson.
We'll mark this as exhibit 31.
Exhibit 31, this was produced as US 62916 and it was designated by the defendants as subject to a protective order.
Do you see?
At the top it says Mike M.
Yes.
Well, yes.
That's you?
That's evidently yes.
Were you aware that Mr. Wolfson produced this text message in response to discovery in this case?
Yes.
Okay, when did you become aware of that?
I think it was in the last several weeks when requests were made for text messages and Adam discovered this text message.
And he came to you and he said, I'm going to have to produce this.
No, he didn't come to me.
Okay.
How were you made aware of this?
I'm just withdrawing the question.
Okay.
And so just to make sure I'm understanding and not mixing up who is which color text, that's you on the top left that texted Mr. Wolfson an article in 4A.com.
Is that right?
That appears to be the case.
And it was titled, Jews Thought Trump Wanted to Fight Anti-Semitism, Period.
Why did he cut all their grants?
Yes.
Okay.
And why did you text that to Mr. Wolfson?
From time to time, I text articles to people that bear on NEH's activities.
When you say to people, do you mean co-workers at any age?
Co-workers.
Occasional friends.
Okay.
And were you endorsing what was said in the article by texting this to Mr. Wolfson?
At this point, all I have to go on is the title.
I don't recall the substance of the article.
Sure.
More generally, were you upset that grants about termination had been cut in early April?
Objection.
Sorry, I think I misspoke.
Were you upset that grants about anti-Semitism were cut in early April?
Objection?
No, I don't think that I was upset about grants dealing with anti-Semitism that had been cut in early April.
And so Mr. Wolfson responded: Thanks for sending.
Well, it is the case that Doge cut grants having nothing to do with DEI.
You see where Mr. Wilson wrote?
Yes, I see that.
And then he writes, as they said, it was a government-wide effort to claw back money.
But note the tendentious accusation that the administration is acting like an authoritarian parentheses or even totalitarian exclamation of our governments to destroy the humanities.
Their ultimate goal supposedly being to destroy independent thought.
But the progressive version of the humanities accomplished that some time ago.
Today goes by the term wokeness and intersectionality.
So that was Mr. Wolfson's text to you, right?
Yes.
And you responded with a thumbs up.
Yes.
And a thumbs up meant that you agreed with his text?
Yes.
Okay.
And so you agreed that the ultimate, well, let me take a step back.
When he references the progressive version of the humanities, do you know what he's referring to there?
I'm just going to note that the questions themselves contain confidential information and may call for responses containing confidential information.
So we'll be contacting the reporter pursuant to the protective order to designate the deposition.
Okay, and what specifically is the confidential information here?
Uh, the, we would, uh, the confidential information, um, starts with but note and goes to the end.
So just to understand for the record, you're saying all three sentences, sorry, four sentences starting with butt note is confidential?
Yes.
And can you state the basis on which that's confidential?
Politicization and Wokeness00:06:49
We've already discussed this, but it's that it's a personal text message on someone's personal phone about their personal views that, and so that is the basis for designating them confidential.
The person would have had a reasonable expectation of privacy that his personal views that about that his personal views would remain confidential and wouldn't be part of the public record.
Okay.
So do you know what he's referring to when he says the progressive version of the humanities?
I believe you'll be talking about the politicization of the humanities on American college and university campuses.
In the politicization, you mean politicization towards a left-leaning view of the humanities?
Is that fair?
Objection.
Not merely that.
I mean, it's a whole series of things.
Can you give me a couple of the things in the series?
Sure.
The suppression of conservative speech on campuses, for example.
The fact that when a conservative speaker wants to show up to give a talk to a student organization, the university will cancel it because of the protests.
They don't allow, there's a uniformity of a progressive ideology that courses throughout the veins of the humanities these days in that direction.
anything else you said it was a series of things well we're still living in uh where the humanities have become a rejection they're they're not they're
They're still largely theory driven in a progressive sense and not dealing with basic text, substituting theory for text and deconstructing the Western canon when not ignoring the Western canon and things of that nature.
But as I say, it's a topic that could exhaust one to go into in detail.
So when he said this, to again get back to your question, having worked with Adam for a number of years, I have a general understanding of what he meant.
But you agreed with it by virtue of doing a thumbs up, you said, right?
Oh, yes.
Okay.
And when you said he goes by the term wokeness and intersectionality, that's referring to the progressive version of the humanities, is that right?
Objection.
Or is that referring to something else here?
Objection.
I think he's referring to wokeness and intersectionality having an authoritarian or even totalitarian mindset.
Okay.
Can you explain how wokeness has an authoritarian or totalitarian mindset?
Objection.
No, I don't think I can at this time.
It's a vast subject.
But wokeness is, you don't like wokeness, that's fair to say.
Objection.
Yeah, I think that's fair to say.
And intersectionality, could you define that term?
Objection.
Well, there's a hierarchy of, as I understand it, and I'm certainly no expert in the field.
Just there's individuals are perceived as being members of certain victimized and oppressed groups.
And they intersect.
And in the ways that their purported victimization or oppression, in the ways in which their victimization or oppression works in the progressive hierarchy,
one is on a ladder of people who are more in need of protection, it could be Protection, I should say, by speech,
you know, the idea that speech is violence and therefore you need to suppress people, for example, who don't agree with one or another of the number of alleged victims in this intersectional hierarchy.
Okay, and so basic question, though, do you agree that being pro-wokeness is a point of view?
Objection. Yes. Yes.
And the same for pro-intersectionality?
Objection.
I'm not sure that it would apply.
Intersectionality is.
I mean, I don't know if you want, if you're saying, which I take, if we construe wokeness and intersectionality as an ideology, which I tend to believe that they are, yeah, I would say that's a view.
Just like having a Marxist viewpoint.
You've said you're anti-wokeness, anti-intersectionality, so that's your view, right?
Objection. Yes.
Gender Neutrality Cases00:08:02
Okay, I'd like to now go full circle and take you back to a case that you litigated in private practice.
And we'll mark this as exhibit 32.
Sorry.
Is it a 32 mark?
Okay.
Do you recognize this case, Mr. McDonald?
Yes.
And is this a case, a Fourth Circuit decision titled, I'm going to pronounce this wrong, Iota Chi Chapter of Sigma Chi fraternity, the George Mason University?
Yes.
Okay.
And you represented the plaintiffs in this case, is that right?
If I'm not mistaken, this was a case that Center for Individual Rights litigated.
Let me see.
I see they have the attorneys here.
I believe you're listed a couple of rows up in the last paragraph before it names them.
Yes, I see.
We were doing it in connection with the American Civil Liberties Union of Virginia.
So where it says four plaintiffs, appallees, that means you were representing the plaintiffs in this case, being the fraternities, and it looks like two individual members of the fraternity.
That's correct.
Okay.
And do you recall what were the facts of this case?
Well, how about we do it this way?
I'm going to read into the record the first paragraph of the facts in Roman numeral one.
Yes.
It says, and this is in the opinion in the reporter page 387 to 388, Sigma Chi has for two years held an annual, quote, Derby Days event planned and conducted both as entertainment and as a source of funds for donations to charity.
The quote ugly woman contest, close quote, held on April 4th, 1991, was one of the quote Derby Days, close quote, events.
The fraternity staged the contest in the cafeteria of the student union.
As part of the contest, 18 fraternity members were assigned to one of six sorority teams cooperating in the events.
The involved fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman.
He was painted black and wore stringy black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman's breasts and buttocks.
He spoke in slang to paragony African Americans.
Did I read that accurately?
Yes.
Okay.
And were the facts in this case that the university meted out some sanctions on the fraternity and its members as a result of what I just read?
Yes.
Okay.
And then you were part of a legal team that brought a lawsuit challenging the imposition of those sanctions on First Amendment grounds?
That's correct.
Okay.
And if I understand it right, you allege that the skit that I just described was a form of First Amendment protected activity?
Yes.
And you allege that punishing or preventing that type of activity was a form of viewpoint discrimination?
I don't recall the case, but that seems as if yes.
Okay.
And in your, from your perspective, what was the viewpoint expressed in that skit that was being punished?
Objection.
Again, without reviewing the facts in detail, I can't say.
Okay, let's look how the court characterized it.
If we go to page seven of this printout, which is reporter page 393.
If you look in the paragraph that starts with as evidenced by their affidavits, and then in the middle of that paragraph, do you see a section highlighted there?
Yes.
And do you see that it says, quote, the mischief was the university's punishment of those who scoffed at its goals of racial integration and gender neutrality while permitting, even encouraging, conduct that would further the viewpoint expressed in the university goals and probably embraced by a majority of society as well.
Did I read that correctly?
Yes.
And so is what the court here is saying that the viewpoints expressed was scoffing at the goals of racial integration and gender neutrality?
Objection.
Is that correct?
Objection.
The question was...
Is the court here, to your understanding, saying that the viewpoint expressed in the skit was scoffing at the goals, the university's goals of racial integration and gender neutrality?
Objection.
That appears to be the case.
Okay.
And the court then says the First Amendment generally prohibits government from prescribing expressive conduct because of disapproval of the ideas expressed.
Yes.
And do you agree with that statement?
Objection. Yes.
And if you look just one paragraph above, the very last sentence, it says, Justice Scalia stated, quote, the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects, close quote.
Do you see that?
Yes.
And do you agree with that statement?
Yes.
Objection.
So as applied in this case, the university and its members were expressing a view on or a disfavored view against racial integration and gender neutrality, and they were exposed to a prohibition or penalty on that, and that's what constituted viewpoint discrimination.
Is that a fair synopsis?
Objection.
I'm not sure that it is without reading the opinion, but It's possible.
Okay.
Punishing somebody because they express views contrary to racial integration and gender neutrality, that would be punishing them based on their views.
Yes.
Objection.
And so if disagreeing with the goals of racial integration and gender neutrality are First Amendment protected activity and viewpoints, is agreeing with the goals of racial integration and gender neutrality also First Amendment protected viewpoints?
Objection.
That would be protected by the First Amendment.
Yes.
Okay.
And going back to the sentence from Justice Scalia we just read, where he says the First Amendment does not prohibit imposing special prohibitions on those who express views on disfavored subjects.
That would mean the First Amendment does not permit for government to punish those who express views agreeing with the goals of racial integration and gender neutrality.
Is that right?
Objection.
That was a long question.
It was a long question.
So I mean, are you questioning him about the legal issues in this case and whether he agrees or disagrees with anyway?
Viewpoint Discrimination Law00:13:04
So if we go back to one last time to the NA list we've seen so much today, and that's US 9583.
And I'm sorry, I didn't get the exhibit number.
Okay.
I'll represent to you.
This is the same NA list spreadsheet that we've looked at several times today.
If you were to roll 156 there and scroll over, do you see that this is a grant relating to the organizing activities of the Student Nonviolent Coordinating Committee, also known as SNCC SNCC?
there's a bit of a glare on the screen from where i am but we zoom in you know the movement history initiative that snick yes i see that And you're familiar with the organization, SNCC?
Not really.
Are you familiar that former Congressman John Lewis was a member of the organization?
Oh, right, now that you've mentioned his name, that does ring a bell.
So are you generally familiar that SNCC, one of their main causes, if not the cause, was fighting racial segregation in the South in the 1960s?
Yes, I believe that is the case.
It was the case.
And so, but just based on this grant description, this grant would have been a grant or was a grant about SNCC's grassroots organization for that cause and any other causes that supported, right?
Objection.
Okay.
And so it's fair to say that SNCC advocated for the goals of racial integration, right?
Objection.
I don't know what SNCC is advocated for in the context of this grant that they're talking about.
Talks also about black power, other things, freedom, what is that?
Freedom training, women and gender freedom training.
So it seems to be advocating for a bit more than just that.
Do you have a basis to question that former Congressman John Lewis, his organization advocated for stopping racial segregation in the South?
Objection.
I've never really studied SNCC.
Okay.
Can we go to the DEI rationale?
You see it says, in terms of the DEI rationale that Mr. Fox provided, the SNCC discussion series engages historically marginalized communities and highlights black history and activism.
Do you see that?
Yes.
And so this grant this indicates was put on this list for termination because it highlights black history and activism in marginalized communities?
Objection.
Is that right?
But it's saying that that sentence is offered as the DEI rationale.
Right.
And so that was the reason it was placed on this list.
Yes.
Objection.
Okay.
And in fact, hypothetically, I'll do this as a hypothetical.
If SNCC's award was terminated because of the DEI rationale provided there, do you consider that discriminating on the basis of their viewpoints?
Objection.
In the context of NEH grants, since you did bring up Justice Scalia, I might want to take a look at his opinion in the Finley versus NEA case, where if I'm not mistaken, he said that the grant-making, federal grant-making organization such as NEH is entitled to engage in viewpoint discrimination.
I may have that wrong, but I don't think I do.
Okay.
So applying that here, your testimony is that the NEH is entitled to engage in viewpoint discrimination.
Objection.
I don't believe that they don't accept the premise of your question that the actions would constitute viewpoint discrimination.
But that wasn't my question, sir.
You said Justice Scalia held, in your recollection, that the NEA is entitled to engage in viewpoint discrimination, right?
Objection.
The NEA.
The NEA, I'm sorry.
Yes.
Okay.
And you provided me that answer in the context of me asking whether the NEH engaged in viewpoint discrimination, right?
Objection.
Correct.
Is it your view that the NEH is entitled to engage in viewpoint discrimination?
I don't The NEH is entitled to set priorities for funding, and by not funding certain projects I don't believe that that constitutes viewpoint discrimination.
Okay.
So if the NEA is allowed to engage in viewpoint discrimination, is there any basis why the NEH's awards would be different from the NEA's awards?
Objection.
I'm not sure I follow.
Let me put it this way.
If the previous administration could come in and disfavor applications that don't have anything to do with climate change or DEI or environmental justice, it doesn't seem to me to be illegal for the NEH to favor projects that oppose DEI and oppose environmental justice.
And is that in fact what the NEH did?
Objection.
Here in this administration?
Partly.
There are other considerations, including that we've talked about about waste, about the administration's priorities in the area of the semi-quincentennial and so on.
Do you believe it would be appropriate if the NEH terminated an award because the word black appeared in the award?
Objection.
No, I did not believe that would be appropriate.
Do you believe it would be appropriate to search for awards as part of a termination process based on whether the word black appeared in the award?
Objection.
Depends on the circumstances.
It could be appropriate.
Can you give me a circumstance where it would be appropriate?
Objection.
Yes, we're talking about a hypothetical process.
So conceivably at the start of the process, depending on the resources one had available in order to review applications, it might be an initial way to get at applications that were involved in the promotion of DEI by using a search word of that nature.
Okay, so if I'm understanding your testimony correctly, it would be appropriate as part of a process to terminate DEI awards to, at the beginning of that process, identify possible termination by using the word black to search for them.
I was saying it could be appropriate.
What about LGBTQ?
Objection.
The president's executive order talks about LGBTQ plus in the context, as I recall, of indoctrination, the idea that sex is not something biological, that there are only two sexes, but that there are many, that it's a spectrum and it goes across.
So again, hypothetically speaking, it could be appropriate since do you think it would be appropriate to search for grants that contain the word black, but not grants that contain the word white?
Objection.
To what end are we conducting this hypothetical search?
So what we mentioned before, let's say one was embarking on a process to terminate awards for whatever reason, DEI, other, and to identify grants for potential termination, one's creating a list of search terms to use.
Could it be appropriate to use the word black, but not the word white?
objection. Yes, it could be appropriate to use the word why.
It just depends on what you're looking for in the search.
Okay.
What about the word homosexual, but not the word heterosexual?
Objection.
The same.
Do you think it's appropriate for the NEH to only to terminate awards specifically because they relate to homosexuality but not because they relate to heterosexuality?
objection.
I need further context to answer that question.
Okay.
Okay.
Just a few final questions, and I thank you for bearing with me today.
You mentioned earlier that you use Signal to text with members of the Humanities Council at various times, is that right?
Yes.
Did you use Signal to text with anyone else in the federal government?
anyone else in the federal government let me let me make it simpler narrow down Did you signal to text with anyone else at NEH?
Yes, and who would that be?
Lizette Voyatsis and Adam Wilson.
And did you use signal to text with them during the time period we've discussed here?
You know 2024, election through, you know, end of April 2020 25, I don't recall.
Could have been.
Could have been yes okay, did you use signal to text with them about NEH related work things?
Objection, I can only speculate.
It's, it's likely that I did.
As I said, I also have a predilection for sending long articles that I see that relate to our activities.
I see, but it's possible you or sorry, you did text with them about work related things.
I think you said.
I think it's it's it's likely that I did.
Yes, did you text with them about the grant terminations at issue in this case?
I have no specific recollection that I did.
It's possible, you did.
It's possible.
Yeah, do you know?
To your knowledge, were any of those signal messages produced in discovery?
Any of the signal messages that I sent produced the communications, regardless of the who produced them?
Are they produced?
Well, at least I'm not sure.
Okay, do you know if Ms. Waratsis searched her signal messages to for potential production.
Objection, I'm not sure.
I believe she did.
I'm not sure.
Did she tell you she did?
I don't recall that she did.
You're just assuming she did.
I'm saying I don't know.
Okay, anyone else at NEH?
you single message with no um how about Did you text message with those same two individuals outside of signal?
Deposition Preparation Talks00:14:59
Yes, about work-related things?
Yes, and do you know if any of those messages have been produced in discovery?
As I said earlier, my protocol is to delete text messages immediately.
Okay, if you're talking about text messages that I sent, there are none to produce.
So even if it's related to your official work at the NEH, your protocol is to delete those messages immediately.
That's correct.
Are you aware of a law called the Federal Records Act?
Yes, and does that act say that any text messages sent on a non-government account have to be forwarded to official account, I believe, within 20 days?
Objection, not aware of that?
Okay, if you were aware of that, was your practice consistent with that objection?
Yeah, it's hypothetical.
These were.
These were personal emails about a variety of subjects.
Well, you just said a second ago it was about official work.
But we'll move on.
Um, That is all I had.
I will, unless, let me give me one moment.
I will pass the witness.
Let me go off the record for a moment.
The time is 5.13.
We are off the record.
Time is 5.18.
We are on the record.
All right, Mr. McDonald, we have not had the chance to talk yet today.
I'm Amanda Vaughan.
I represent the Authors Guild plaintiffs in this case.
Nice to meet you.
And you understand that you're still under oath when you're answering my questions, just as you are when you're answering Mr. J.
Yes, I understand.
Thank you.
Okay.
And during any of the breaks today, did you talk to government counsel about your testimony today?
Yes.
Which counsel did you speak with?
Both the government counsel, Ms. Stowe and Ms. Brennan.
And when you talked to them, did they ever suggest to you how you should answer any questions?
They gave me general advice, yes.
Did they ever suggest you how you should answer questions about who was responsible for terminating grants?
No.
During any breaks today, did you review any documents relating to the termination of the grants at issue in this case?
Sorry, could you repeat it, please?
During any of the breaks today, did you review any documents relating to the termination of the grants at issue in this case?
No.
Did you, during any of the breaks today, did you speak with Adam Wolfson at all?
Yes.
Did you speak to him about anything relating to your testimony today?
Yes.
What did you speak to him about?
Just about how it was going and questions that were asked about my previous career at the Center for Individual Rights.
What did you tell Mr. Wolfson about how it was going?
Said it was going fine.
Did you talk to Mr. Wolfson at all about the questions you had been asked and the answers you had given relating to whether you or Doge were responsible for terminating the grants?
No.
Did you speak with any other NEH staff during any of the breaks today about your testimony here?
It was the two attorneys in the Office of General Counsel.
And when you talked to them, did they ever suggest to you how you should answer any questions during your testimony today?
No.
Did Adam Wolfson ever suggest to you how you should answer any questions today?
No.
Early in your testimony, you said that you talked to Steve Davis.
Yes.
And you testified that he told you that Doge people were coming to NEH and would tell you, you said the game plan.
Did he tell you what the game plan was on that first call?
Objection.
And he didn't tell you anything about what the Doge people would be doing at NEH in that call that you had with him in the morning.
I don't recall any of that.
No.
Did it seem to you like Steve Davis knew what the Doge folks would be doing at NEH?
Objection.
Yeah, it's difficult because you're asking me what I thought Steve Davis knew.
I don't know what Steve Davis knew about what the Doge team was going to be doing at any age.
My question was, did it seem like to you that he knew what they would be doing at any age?
Casting my mind back, I really can't say.
So you agreed to let the Doge team come to NEH without a clear understanding of what they were going to do at NEH?
Well, again, there was a context.
The Doge had already begun its work at other federal agencies.
My expectation was that the Doge team would carry out similar activities at NEH.
You told Mr. Jacobson earlier that you believed the president had directed you to cooperate with Doge in achieving Doge's objectives.
Is that right?
Yes.
So I take it then you did not think that you could say no to Doge coming to NEH?
Objection.
I was in favor of the creation of Doge.
I supported the President.
There would be no reason for me in my acting position to oppose Doge coming to NEH.
I appreciate that you didn't see a reason, but my question was, given that you believed you had been directed by the president to cooperate with Doge, I take it that you did not think you could say no, even if you wanted to.
Objection.
Again, it's really hypothetical.
I wasn't thinking of resisting in any way.
So the question, in a sense, does not make sense to me.
What was Richard Brundage's position at NEH during the time of these terminations that we've been discussing?
Richard Brundage was the director of the Office of Grant Management.
And I understand that there have been only a few terminations prior to 2025 that you recalled.
In one of those kinds of terminations, would someone in Mr. Brundage's position typically be involved in that process of terminating a grant?
Was it your sense that Mr. Brundage had concerns about the process that Doge was using to identify grants for cancellation here?
objection?
Well, Richard was, it's difficult to answer the question because you're asking me to get inside Richard's head.
Richard was aware of the termination procedures that normally applicable in these situations.
I have no recollection of Richard bringing any concerns to me as the process was unfolding.
But I don't recall at what point Richard was involved in the process.
You don't have any recollection sitting here today that Mr. Brundage raised concerns to you about the process that Doge was using to identify grants for termination?
No, because Richard wasn't involved in that process.
He would be involved at the other end if he were to be involved.
It wouldn't have been the selection of grants for terminations.
It would have been in the execution of the termination of the grants.
Was he involved in the execution of the termination of the grants?
Oh, he was involved.
The grants were carried out by the Doge team.
Richard's involvement, I don't believe that he had much, if any, involvement in the termination of those grants.
His involvement, a lot of involvement, came after the termination of the grants.
You testified earlier that you reviewed the filings in this case.
Is that right?
Objection.
Yes.
Of course, when asked to specify what review means, again, the case occurred after I was already acting chairman, so my responsibility shifted.
I was relying on the attorneys in the Office of Grant Management.
I couldn't necessarily read the pleadings the way I would if I were fully in the position of general counsel.
There's a lot of other things going on.
So, yes, I have a general awareness of the pleadings.
And it's your understanding based on your review of at least some of the filings in this case that plaintiffs have raised an ultravirus claim.
Yes, I'm aware of that.
And it's your understanding based on your review that the ultravirus claim in this case is based on an allegation that Doge and not you terminated the grants it issued.
Yes, I'm aware of that.
And you testified earlier that you were you discussed with Mr. Wolfson previously, you had discussions with him after this litigation was pending about who was making the termination, the terminations.
Yes.
About how many conversations did you have with Mr. Wolfson about who was making the terminations after you became aware of this litigation?
It really wasn't, it wasn't how many conversations if I had a guesstimate, I would say maybe two.
First, when the complaint was filed and the complaint surfaced, and then most likely after Judge McMahon issued her opinion and we both read the opinion and popped up again as one of the principal arguments.
Did you have any conversations about who was making the terminations with Mr. Wolfson after you learned that you were both going to be deposed in this case?
Conversations.
It's possible that there were conversations about what potential lines of questioning could be.
Yes, and that it's possible that that came up.
I don't have any firm recollection of that.
You testified earlier that part of your conversations with Mr. Wolfson were reviewing the sequence of events that took place.
Do you recall that testimony?
Yes.
And by that, you mean you and Mr. Wolfson sort of went through who did what when with respect to terminating the grants?
Objection.
Yeah.
I mean, Yes, it was, as I said more than once during the deposition, there were a lot of things going on in addition to the grant termination, and memory is not necessarily the clearest.
And so we're trying to get an idea of the sequence of events, yes.
And so I take it you and Mr. Wolfson also discussed whether it was you or Doge that was taking actions with respect to terminating the grants.
Objection.
It wasn't that he and I were discussing whether or not, you know, who was the ultimate authority for making the grants.
It was that to the extent it was discussed, it would have been that to the extent it was discussed, it would have been that the plaintiffs were arguing that it was Doge and not me and not I who had made the grants.
So there was no discussion that Adam and I that I can recall having other than other than talking about the argument that was being made on the ultraviolet claim.
And you understand that Mr. Wolfson is a witness in this case.
I do.
And you understood that he was a witness in the case at the time you were having these conversations with him about who was making the terminations.
Objection.
I understood you would have been deposed, yes.
So knowing that you were both witnesses and knowing that a claim in this case turned on who made the terminations, you and Mr. Wolfson discussed whether, you and Mr. Wolfson still discussed the sequence of events leading to terminations in this case.
Objection.
While this case was pending.
It wasn't as though we scheduled a meeting to sit down to talk about that.
Nomination Subject Discussions00:04:06
We would have general conversations about the claims that were being raised and about the avenues of questions one could expect to receive.
Mr. McDonald, has a new chair been nominated for NEH?
No.
Are you under consideration to be nominated for the role?
Yes.
Is that something that you want?
Yes.
Where are you in the process for being considered for that?
Where am I in the process?
I'm waiting to hear whether or not presidential personnel or whether the president will make the nomination to the Senate.
Do you know how many other candidates there are?
I don't believe there are any other candidates at this point.
Have you had to have any interviews with anyone at the White House as part of the nomination process?
No, I have not.
Have you had to have any interviews with anyone elsewhere in the executive branch as part of the nomination process?
No, I have not.
Who told you that you were being considered for nomination for the role of chair?
James Shurick on the Domestic Policy Council.
Sorry, say the name again.
James Schirk, S-H-E-R-K.
And how do you know that person or how were you connected with them?
I met James first in connection with the task force that the president had put together on the America 250 semi-quincentennial.
So I forget when I met him.
It would have been within a couple months after I became acting chairman.
Did he approach you about becoming chair permanently or did you approach him?
I didn't approach him.
I think it was a reflection on the well, I'll just leave it at that.
I don't recall approaching him about it.
So it must have been that he brought up the subject with me.
And how do you know that it's at the point in the process where you're just waiting for a final decision?
Because I was aware that my acting chairmanship expired on January 4th, 2026.
And the administration would necessarily be looking to nominate someone to the position.
So it was.
Again, I don't recall exactly when the conversation took place, but the conversation that I had with mr Shirk was on the order of that, that I had done a good job in the acting position and that the White House was pleased with the grants that I had made since becoming acting chairman and uh, they would be happy to continue to see me in that position for the four years.
term, nominated for a four-year term.
And President Trump has the final say on whether you're nominated.
That's correct.
Signal App Usage Start00:05:25
So if you were to give testimony in this case that made President Trump or the White House unhappy, that could impact your ability to be nominated to be the chair of NEH objection.
I can't imagine giving testimony.
In the way that you suggest, it's hypothetical.
But I suppose that if I were to say something that was displeasing, it could have an effect on the nomination, yes.
When did you start using Signal?
You guys are really testing my memory, which is not so good.
I think it was probably around the time that the president was inaugurated, President Trump.
How did you learn about Signal?
Signal, I learned about Signal, I believe.
I may be mistaken through the Hillary Clinton case.
I know she was using some encrypted app, I believe.
I may have that wrong.
But certainly there are articles that appear in the paper about using the Signal app, that government officials in the previous administration had used it.
And so it was also something that I discussed with Council Member Keegan Kallanan.
So you had known about Signal for several years before you started using it?
Generally, generally speaking, yes.
So why all of a sudden when President Trump was inaugurated, did you decide that was the time to start using it?
Objection?
I think there was a need to have a private communications where we could discuss our opinions in a protected way.
You say our opinions, who's our training opinions with the people that I was on Signal with.
And some of those people worked at NEH?
At least one person, and the others were council members.
And remind me, who was that one person at NEH again?
It was the acting general counsel at that time, Ms. Voyazas.
Did you set your signal messages to delete after a certain period?
Yes.
What was that time period?
I don't recall offhand, but it was a relatively short period.
Matter of days, if a day, something like that.
And you also text over regular text message with Ms. Voyatzas?
Yes.
How do you decide what to send over Signal versus what to send over regular text?
Well, I don't recall sending Ms. Voyazis after the account had been set up.
I think we did one text just to test it.
I don't recall at most I may have sent her one other text, but it wasn't something that I used frequently with her because those types of communications were not of a kind that I thought needed to be protected.
Did you, and did you message with Adam Wolfson over Signal?
Occasionally.
And also over regular text?
Occasionally, yes.
What kind of messages do you send over Signal to Mr. Wolfson versus overregular text?
I would, well, we had one example here of articles.
I see.
I might be expressing my opinions on certain individuals or certain activities that had taken place, or it could just be about something that was in the news.
How long have you had the practice of deleting every text message on your phone?
For a long time.
When you say a long time, is that more than a year, more than five years?
I regularly allowed any text messages to remain on my phone beyond normally, they're normally be deleted within 30 days.
My practice has been to delete them sooner than that.
At a limit would be 30 days.
The reason for leaving them on there would simply be that they had some type of, for example, sentimental reason for me, or that they contained dates about meetings where I'd be meeting a friend or family member or something of that kind.
So I would remember, I would keep them to put them on my calendar.
Did someone tell you to start using Signal or did you decide that on your own?
Biden Grant Resets00:02:43
Objection.
So I was saying, I believe I had a conversation with Council Member Keegan Helenan, and he recommended to using Signal.
At the time that you were at the time that grants were being reviewed for termination in spring of 2025, there were still active grants from the first Trump administration.
Is that right?
I don't, I couldn't say offhand.
My speculation would be that most of those had terminated.
The grants don't typically, individual grants don't extend beyond a year or two.
Depending on the type of arrangement with an institution, it's possible there may have been still outstanding Trump awards, but I can't say.
Did you ever review outstanding Trump awards for potential termination?
I don't recall ever inquiring into outstanding Trump awards for termination.
Did you tell Mr. Fox and Mr. Kavanaugh that they should only focus on reviewing Biden grants for termination because there was a lot of DEI, gender ideology, and environmental justice material in those projects?
No.
You did not tell them that.
No.
You're aware that we've deposed Nate Kavanaugh.
Yes.
So if he told us that you said they should focus on Biden grants because they had a lot of DEI in them, that was not true.
Objection.
I'd have to know the context.
My understanding was that there was going to be a reset, that the presumption was that open grants that were made under the Biden administration needed to be reviewed.
I don't recall that that idea originated with me.
So I might have to disagree with Mr. Kavanaugh if that was his testimony.
It was certainly the case that I'm not even sure when I how that first came up, but there was going to be a general reset.
And I believe that that occurred at the time that the Doge people arrived here.
And it could have been the case that I also added, yes, it's good that we looked at all the DEI grants that were made under the previous administration.
Colleague Break Discussions00:06:38
Without knowing the context of what you're saying, he said, I can't say.
Now, we've been talking about grants that were canceled approximately 10 months ago.
Is that right?
In your experience, would your perception of events be more accurate at the time those events were happening or today, 10 months later?
Objection.
It's difficult to say.
It depends on the events.
And in my recollection today, certain things one has a better recollection of.
I would probably say in general, at the time, you know, at the time they were more accurate.
When you talked with DOJ counsel during the breaks today, what did they tell you to say in response to our questions?
our conversations with him about his employment I'm sorry, are you making the objection?
She objected, and I'm explaining to you that as a problem if she talks.
No, I'm just not sure who I should like rely on.
You can look at both of us when the person is talking.
I think that will be clear who's talking.
As I was saying, our conversations with him are privileged and we have only discussed with him his employment at any age.
And so those conversations are privileged and he cannot be asked questions about them.
All right.
Are you directing him not to answer?
If it would reveal the substance of discussions that we had with him, yes.
All right.
And are you following that direction, Mr. McDonald?
I am.
Okay.
That's all I have.
Thank you, Mr. McDonald.
Well, thank you.
Let's just go off the record for a little bit.
Yeah.
And by the time it's 5.46 and we are off the record.
The time is 5.51 and we are on the record.
Mr. McDonald, you testified earlier that you talked to me and my colleagues during some breaks today.
Is that right?
Yes, that's correct.
In our discussions today, did me or any of my colleagues say anything about whether you should provide truthful responses to the other attorneys' questions?
I was always instructed to respond truthfully to all the questions.
Okay.
And in our discussions today, did we ever instruct you what answers you should give to the other attorneys' questions?
No.
Okay.
That's anything else?
I have a recross in that case.
Mr. McDonald, what did the Department of Justice Attorney say to you during the breaks in that case?
Objection.
We already said that the discussions about his work are privileged.
Right, but you just waived the privilege by asking him specifically about the content and the communications.
So are you still standing on the channel?
I didn't ask him about the content of the communications.
I mean, I asked, I didn't ask specifically what was said.
I didn't ask him to reveal what we said to him.
Can we read back the record on Ms. Brennan's questions?
Thanks.
Bye.
The last one.
Or.
If you could just read her full question and answer with Mr. McDonald.
You testified earlier that you talked to me and my colleagues during some breaks today.
Is that right?
Yes, that's correct.
In our discussions today, did me or any of my colleagues say anything about whether you should provide truthful responses to the other attorneys' questions?
I was always instructed to respond to questions.
Okay.
And in our discussions today, did we ever instruct you what answers you should give to the other attorney's question?
No.
Okay.
I still don't see how I asked him to reveal privileged information through those questions.
I understand you're still going to object, so I'll just ask the question.
And if you want to instruct him, we come in.
And then that just happened.
Not quite.
Mr. McDonald, what did the DOJ attorneys tell you during the break today?
I would I'm going to object and advise you not to answer.
And are you going to listen to that instruction?
Yes.
Okay.
Thank you very much.
You're welcome.
Okay, everybody hold on just a second.
Orders on the this is the end of the deposition of Michael McDonald.
The court report will now take orders for the transcript and then I'll take orders for the video.
Okay.
Mr. Jacobson, will you be ordering the original transcript?
Original interrupt.
Original interrupt.
Okay.
Let's see.
All right.
We have a proposal.
And Attorney Brennan.
We already see.
Yeah.
And then Attorney Powell, would you like a copy or?
Oh, no.
No.
All right.
Okay.
Ms. Brennan, Mr. Jacobson will be receiving a video.