Interior Chief’s Lobbying Past Has Challenged the Agency’s Ethics Referees
WASHINGTON — On the morning of Aug. 21, 2018, David Bernhardt, then the deputy interior secretary, wanted to attend a White House meeting on the future of a threatened California fish, the delta smelt — an issue upon which Mr. Bernhardt had been paid to lobby until he joined the Trump administration a year before.
It was a sticky ethical issue, seemingly exemplifying the revolving door that has separated lobbying from policymaking in the nation’s capital for decades. So Mr. Bernhardt, who had, as a lobbyist, pressed to loosen delta smelt protections for a California water district, personally approached the Interior Department’s ethics referee.
“I see nothing here that would preclude my involvement,” he wrote ahead of the meeting in an email to Edward McDonnell, a career ethics lawyer at the department, effectively clearing himself of wrongdoing hours before the event in question. Mr. McDonnell agreed.
More than 900 pages of Interior Department emails, obtained by the environmental group Friends of the Earth through a Freedom of Information Act request, show the ethical tangle that has come from elevating a lobbyist to head a cabinet department that oversees the issues upon which he once lobbied. The oil and gas extraction, water allocation and wildlife protection issues that are central to the Interior Department’s mission were also central to Mr. Bernhardt’s lobbying portfolio. Because of that, he has repeatedly reached out to an Interior ethics lawyer to seek guidance on his work.
Ethics at the Interior Department, steward of 500 million acres of public land and vast coastal waters, have been under scrutiny since the early days of the Trump administration. President Trump’s first interior secretary, Ryan Zinke, resigned this year amid a swirl of misconduct charges. His replacement, Mr. Bernhardt, is being investigated for policy interventions that have greatly assisted his largest former client, the Westlands Water District in California’s Central Valley. The department’s inspector general is also examining whether he continued lobbying for Westlands after he formally de-registered as a lobbyist before joining the administration.
The emails between Mr. Bernhardt and Mr. McDonnell suggest the secretary was personally attuned to those ethics issues.
In May of 2018, Mr. Bernhardt sought clearance from Mr. McDonnell to meet with a group of California water agencies, including Westlands. To help Mr. McDonnell reach his decision, Mr. Bernhardt proposed that they both telephone the lawyer representing the water agencies.
In August 2018, Mr. Bernhardt emailed Mr. McDonnell while the ethics lawyer was on vacation, asking him to join a telephone call on water policy, the chief issue on which he had once lobbied. Mr. McDonnell agreed.
In August 2017, Mr. Bernhardt and Mr. McDonnell exchanged emails about Mr. Bernhardt’s involvement in shaping new regulations on oil and gas drilling. Another former lobbying client of Mr. Bernhardt’s, the Independent Petroleum Association of America, had joined a lawsuit to help shape those regulations.
“I am aware of the litigation but that is on the flaws of the existing rule,” Mr. Bernhardt reasoned.
An Interior Department spokesman, Nicholas Goodwin, said complying with ethics rules was a top priority for Mr. Bernhardt and his engagement with Mr. McDonnell was proof of that.
“The secretary is resolute in upholding his ethical responsibilities and in doing so directly engages with career ethics officials on a regularly basis,” Mr. Goodwin said. “The secretary, not a staffer, is accountable for his conduct,” he added.
In a statement, Mr. McDonnell wrote, “I have never felt intimidated by Mr. Bernhardt or compelled to reach a given conclusion that I did not agree with.” He continued, “All of my ethics advice to Mr. Bernhardt or otherwise is based solely on the law as it applies to the facts presented.”
At the center of many ethics issues is Westlands, a state entity created at the behest of, and largely controlled by, some of California’s wealthiest and most politically influential farmers. It is also the state’s largest agricultural water user, and for years it has lobbied lawmakers to weaken environmental rules to in an effort to get more irrigation water.
Last month, the Interior Department granted Westlands the policy victory it had long sought, with the release of a new plan that would lift protections on the smelt and divert water to California’s Central Valley. Interior Department officials said the decision had nothing to do with Mr. Bernhardt’s past position.
Ethics experts have questioned why Mr. Bernhardt was given approval to take part in the Endangered Species Act decisions on the delta smelt, since Westlands would be among the largest beneficiaries of the policy change. They have also pointed to the appearance of an ethical breach raised by Mr. Bernhardt’s involvement in the Interior Department’s push to expand the Shasta dam in Northern California, a project that would also directly benefit Westlands. The agency’s own scientists had advised against the expansion.
The emails may point to a reason Mr. Bernhardt has received permission to be involved: his close personal contact with an ethics officer. In 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.
“In any professional organization, if your boss comes to you and says, here’s the reason I should do this, it becomes very difficult to say no,” said Francis Iacobucci, who served as director of scheduling to Sally Jewell, an interior secretary in the Obama administration.
“That’s intimidating,” he said, adding, “there are layers for a reason.”
Lynn Scarlett, who served as deputy interior secretary in the George W. Bush administration, said that when ethics questions arose during her tenure, “certainly I would never signal what I want the answer to be.”
When Mr. Iacobucci was at Interior, he said he met with the ethics lawyers, including Mr. McDonnell, who would then vet the Ms. Jewell’s proposed meetings well in advance and reject any that violated ethics rules or created the appearance of ethical conflicts. Only then were meetings put on the secretary’s calendar.
“That is not a new process,” Mr. Iacobucci said. “It was learned from doing it this way in the agency for years.”
Four other former Interior Department officials described the exchanges between Mr. Bernhardt and the ethics lawyer who reports to him as “extraordinary,” “atypical” and “intimidation.”
Mr. Bernhardt’s focus on Mr. McDonnell, who is not the Interior Department’s senior ethics official, might also have a personal component: In the George W. Bush administration, Mr. Bernhardt served as the Interior Department’s top lawyer, and, for about two years, Mr. McDonnell reported directly to him.
“These emails suggest that Interior ethics officials faced significant pressure from Trump political appointees to greenlight ethically questionable activities,” said Brendan Fischer, the director of the federal reform program at the Campaign Legal Center, a nonprofit watchdog group.
Former Interior Department officials expressed concern about another aspect of the email exchanges, the appearance of rewarding the desired decision. After Mr. McDonnell cleared Mr. Bernhardt to attend the August 2018 White House meeting on the delta smelt, Daniel Jorjani, the Interior Department’s acting top lawyer, thanked the ethics lawyer.
“Ed — Superb value creation. Much appreciated,” wrote Mr. Jorjani, a Trump appointee like Mr. Bernhardt, who was confirmed as chief counsel in September.
Value creation is not usually an ethics lawyer’s job.
“It is not the job of career ethics employees to ensure the political agenda pushes forward,” Mr. Iacobucci said. “It’s his job to ensure that it stays within ethical guidelines.”
In another exchange, on August 22, 2017, Mr. Bernhardt asked Mr. McDonnell if he could be included in a matter that would likely affect another former client, the U.S. Oil and Gas Association, which he had recused himself from overseeing.
“What I’m requesting is clearance to evaluate, participate and determine the contents of the final record of decision,” Mr. Bernhardt wrote.
Mr. McDonnell gave Mr. Bernhardt what he sought.
The emails do show occasions when Mr. McDonnell pushed back against Mr. Bernhardt. In October 2017, Mr. Bernhardt was invited to give a presentation at a conference sponsored by his former lobbying firm, Brownstein Hyatt Farber Schreck. Mr. McDonnell emailed Mr. Bernhardt that ethics rules forbade the engagement. “Roger that,” Mr. Bernhardt wrote back.
But Mr. Bernhardt was undeterred by the occasional rejection. The emails show repeated queries from Mr. Bernhardt about matters of California water policy.
And Westlands officials expressed their enthusiasm for the new post in Washington that their former lobbyist was taking.
In June 2017, after Mr. Trump had nominated Mr. Bernhardt to be deputy interior secretary, Mr. Bernhardt forwarded the White House news release to a Westlands official, Johnny Amaral, according to emails obtained by the advocacy group Western Values project under California public records laws and viewed by The New York Times.
Mr. Amaral replied, “Dream Team … with Bernhardt as the QB.”