Ethical concerns have plagued the Interior Department since former lobbyist David Bernhardt took a top spot at the agency, and they do not seem to be going away anytime soon.
A trove of recently-published emails between Bernhardt, while he was still Deputy Secretary, and the agency’s ethics staff offer an inside look into the flaws in Interior’s ethics review process.
The emails, released via the New York Times, show Bernhardt’s apparently coercive tactics for procuring ethics advice on a variety of matters relating to his former lobbying clients and their interests. CLC has flagged these concerns in a letter to Interior’s Inspector General.
Bernhardt previously worked as a registered lobbyist, and he lobbied on matters that he now oversees at Interior. His former clients also regularly lobby and otherwise interact with Interior. That makes regular solicitation of ethics advice necessary to avoid actual or apparent conflicts of interest.
But the emails show that Bernhardt often put his thumb on the scales.
According to the Times, “[i]n other administrations, Republican and Democratic, aides to senior officials such as schedulers or assistants, sought the opinion of ethics lawyers, not the senior officials themselves.”
But Bernhardt bypassed those practices, which were established to minimize the potential for coercion, by making the requests for ethics advice personally.
He also regularly primed ethics officials—in particular, one ethics official named Ed McDonnell—with the determinations Bernhardt himself wanted.
Lynn Scarlett, who had Bernhardt’s old role in the George W. Bush administration, told the Times that when ethics questions arose during her tenure, “certainly I would never signal what I want the answer to be.”
“If your boss comes to you and says, here’s the reason I should do this, it becomes very difficult to say no,” Francis Iacobucci, who served as director of scheduling to an interior secretary in the Obama administration, told the Times. “That’s intimidating,” he said, adding, “there are layers for a reason.”
For example, in August 2018, Bernhardt wanted to attend a meeting to discuss California water policy hosted by the National Economic Council. He sought approval by reaching out directly to McDonnell, the Interior ethics official, and declared, “I see nothing here that would preclude my involvement given my existing recusals.”
He follows with his own ethics analysis, emphasizing that he is no longer recused from matters relating to his most prominent former client, Westlands Water District, the nation’s largest agricultural water district. (His legal recusal obligation regarding Westlands expired just three weeks prior to this email—but ethics officials are also supposed to consider the appearance of a conflict of interest, which Westlands likely posed.) He finishes the email with, “Please review and advise.”
McDonnell gave Bernhardt the ethics conclusion he wanted, and he received positive affirmation for doing so: then-Principal Deputy Solicitor Daniel H. Jorjani, a political appointee, replied to McDonnell’s email giving Bernhardt clearance, writing, “Ed – Superb value creation. Much appreciated. Dan.” As noted by the New York Times, “Value creation is not usually an ethics lawyer’s job.”
In another example from August 2017, Bernhardt asked McDonnell for ethics clearance to help shape potential changes to regulations that one of Bernhardt’s former lobbying clients, the Independent Petroleum Association of America (IPAA), had sued over.
Despite his former lobbying client’s significant interest in these regulations—IPAA was part of a lawsuit about them—Bernhardt told McDonnell that the ethics rules shouldn’t apply, because although he was “aware of the litigation,” the litigation was focused “on the flaws of the existing rule.”
Just two months earlier, IPAA’s political director had bragged that the group had “unprecedented,” “direct access” to Bernhardt, and that he was going to “move the pieces” at Interior in their favor.
The interactions in these emails raise questions about Bernhardt’s use of his authority and influence to interfere with ethics advice that would allow him to participate in matters relating to his former clients’ interests.
This is important because Bernhardt’s decisions at Interior have the power to determine whether our nation’s natural resources will be protected for the public, or whether wealthy special interests, like those that used to pay Bernhardt’s salary, will get privileged access.
Ethics officials are supposed to ensure that those decisions are impartial and based on the interests of the public.
This is only the most recent example of Interior officials muddying the ethics waters with regard to their former employers and clients.
Bernhardt seems to have violated his ethics pledge when he participated in the same efforts to weaken environmental protections that he lobbied on for Westlands prior to joining government. And six other Interior officials seem to have violated revolving door ethics prohibitions by regularly attending meetings with former employers or lobbying clients.
The Interior Inspector General has opened investigations into these matters.