PAST SCANDAL-PLAGUED
TIME IN BUSH ADMINISTRATION

David Bernhardt worked in the George W. Bush administration’s Department of the Interior, perhaps the most scandal-plagued Interior Department prior to the current one.

 

From 2001 to 2004 Bernhardt was Counselor to the Secretary and Director of the Office of Congressional and Legislative Affairs; 2004 to 2005 he was Counselor to the Secretary and Deputy Chief of Staff; 2005 to 2006 he was Deputy Solicitor; and 2006 to 2009 he was Solicitor.

 

During his time at George W. Bush’s Interior, Bernhardt replaced independent government analysis in congressional testimony with reports funded by oil companies, oversaw the forced resignation of a whistleblower, and served as Counselor to the Secretary when J. Steven Griles, the second-ranking official of Interior at the time, was involved in the Jack Abramoff corruption scandal.

David Bernhardt was one of the “political appointees brought into Interior during [Secretary Gale] Norton’s tenure” who was an advocate or lobbyist “for big oil, gas…and mining corporations that operate on public lands.”

David Bernhardt was one of the “political appointees brought into Interior during [Secretary Gale] Norton’s tenure who all shared the common experience of having been advocates or lobbyists for big oil, gas, coal and mining corporations that operate on public lands.”  [Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

David Bernhardt, when George W. Bush was president, “helped craft rules that exempted carbon emissions from regulatory authority.”

David Bernhardt, during the George W. Bush presidency, “helped craft rules that exempted carbon emissions from regulatory authority.” [Jimmy Tobias, “The Big Oil Allies and Beltway Insiders Leading Trump’s Department of the Interior – and How to Resist Them,” Pacific Standard, 11/28/16]

David Bernhardt was “one of the [Bush] administration’s point people in the push to promote oil drilling from the Arctic to Wyoming.”

David Bernhardt was “one of the [Bush] administration’s point people in the push to promote oil drilling from the Arctic to Wyoming.” [“The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03]

David Bernhardt was “a Bush administration point man for oil drilling in the Arctic National Wildlife Refuge. In 2001, he prepared congressional testimony on Arctic drilling that dismissed warnings from the government’s own scientists and relied on reports funded by BP.”

David Bernhardt was “a Bush administration point man for oil drilling in the Arctic National Wildlife Refuge. In 2001, he prepared congressional testimony on Arctic drilling that dismissed warnings from the government’s own scientists and relied on reports funded by BP.” [Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

More specifically, in 2001, David Bernhardt “helped prepare congressional testimony on Arctic drilling for Interior Secretary Gale Norton that dismissed warnings from the government’s own scientists. The Fish and Wildlife Service, the agency that runs the wildlife refuge, had reported that drilling could have a negative impact on the region’s caribou herds. According to published reports, Bernhardt rewrote the FWS findings, and Norton, in answering questions before a Senate panel, misrepresented the research, relying instead on information from a report funded by BP Exploration.” [“The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03]

When David Bernhardt was the Interior Department Solicitor he “issued guidance that recommended agencies” narrowly interpret the Endangered Species Act (ESA).

When David Bernhardt was the Interior Department Solicitor he “issued guidance that recommended agencies focus on plants and animals most at risk in their current locations, rather than throughout their historic range or in other locations where species may be healthy.” [Noelle Straub, “Endangered Species: Scientists Call For Ending Bush-Era Listing Policy,” Greenwire, 12/10/09]

He proposed a “new reading” of ESA which “would enable the U.S. Fish and Wildlife Service to protect animals and plants only where they are battling for survival.” As such, “the agency wouldn’t have to protect them where they’re in good shape.” A group of wildlife biologists said that the proposed changes would “‘have real and profoundly detrimental impacts on the conservation of many species and the habitat upon which they depend.’”  In fact, “more than three dozen scientists…signed a letter to protest…[this] interpretation of the Endangered Species Act, saying it jeopardizes animals such as wolves and grizzly bears.” [John Flesher, “38 scientists sign onto letter to protest new interpretation of Endangered Species Act,” Associated Press, 05/02/07, and “Digest,” St. Louis Post-Dispatch, 05/03/07]

Legal analysis by Interior Solicitor David Bernhardt concluded that ESA cannot be used to protect animals, including polar bears, from climate change.

A 2008 memo by Interior Solicitor David Bernhardt “concluded that emissions of greenhouse gases from any proposed project can’t be proved to have an impact on species or habitat, so it isn’t necessary for federal agencies to consult with government wildlife experts about the impact of such gases on species as stipulated under the Endangered Species Act.” His memo “concluded that indirect effects on wildlife can’t be traced to emissions from any specific source and that cumulative effects ‘are of no relevance’ under the Endangered Species Act.” [Renee Schoof, “Memos tell wildlife officials to ignore global-warming impact,” McClatchy News Service, 10/14/08]

A “2008 legal analysis of planet-warming emissions and effects on polar bears done by Bush-administration Interior Department Solicitor David Longly Bernhardt…concluded there was insufficient data to draw a connection between U.S. emissions and effects on the species in its habitat.” [“Endangered Species: Obama Admin Disputes Republican Calls For ESA Assessment,” Greenwire, 08/04/15]

David Bernhardt, in 2008, wrote a memorandum defending the decision by the U.S. Fish and Wildlife Service (FWS) that “wolves within the western region of the Great Lakes…were not an endangered or threatened species.”

David Bernhardt, in 2008, wrote a memorandum defending the 2007 decision by FWS revising “the listing of the gray wolf under” ESA after determining that “the wolves within the western region of the Great Lakes were a ‘distinct population segment’ (DPS) of gray wolves generally and that they were not an endangered or threatened species.” Bernhardt wrote that FWS “had clear authority to make these determinations.” [“Memorandum on U.S. Fish and Wildlife Service Authority under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered and Threatened Species to ‘Reflect Recent Determinations,’” Department of the Interior, 12/12/08]

The Office of Solicitor at the Department of the Interior oversees the Interior Department’s Ethics Office. During Interior Solicitor David Bernhardt’s tenure the Interior Department was beset by ethical issues. In one example, Deputy Assistant Secretary Julie MacDonald was forced to resign “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing [nonpublic] sensitive information to industry lawyers and lobbyists.” David Bernhardt, as solicitor, could have stopped her doctoring of scientific reports, but he did not do so. Instead he was “part of Interior’s Executive Resources Board, which gave Julie MacDonald…a cash award of $9,628,” even though “the award lacked the required documentation of what MacDonald did to deserve it.”

The Office of Solicitor at the Department of the Interior “performs the legal work for the United States Department of the Interior,” which includes overseeing “the Ethics Office.” [http://www.doi.gov/solicitor-dev/about]

As Solicitor at the Department of the Interior, David Bernhardt “handle(d) legal work and manage(d) its ethics office.” [Mark Matthews, “Colorado Lobbying Firm Brings Clout to DC,” Denver Post, 04/21/16]

David Bernhardt said, “I view the role of the Solicitor as being the chief legal officer of the Department. In that capacity, the Solicitor serves as the principal legal advisor to the Secretary and is responsible for all legal work in the Department, except that delegated to the Office of Hearings and Appeals, the Inspector General, the Legislative Counsel, and the Justices of the American Samoa.” [Orbach, Karsner, Spurgeon, and Bernhardt Nominations, Hearing before the Senate Committee on Energy and Natural Resources, 03/09/06]

Deputy Assistant Secretary Julie MacDonald resigned “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing sensitive information to industry lawyers and lobbyists.” [Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

More specifically, in May 2007 she resigned from the department after being “criticized” in an inspector general’s investigative report that found she “repeatedly” asked Fish and Wildlife scientists to change their research recommendations on endangered species and criticized “her conduct severely.” The report noted that MacDonald operated under the principle “does the science fit the policy?” rather than taking the research at face value.

 

She was accused of, and admitted to, sending “nonpublic” information to “public sources” on several occasions during her tenure at the department.  She sent at least two emails to addresses ending in chevrontexaco.com, including one “large EPA file,” and one about a proposed EPA watershed rule that she admitted “probably wasn’t releasable.” She also sent a document about the Delta smelt to an “on-line game friend” she was acquainted with through “internet role-playing games.”

 

As solicitor, David Bernhardt had the final legal say on MacDonald’s work classifying endangered species through a review process that escalated up through the various solicitors’ offices. Her work often reached the deputy solicitor’s desk, and if they disagreed on an issue, the decision would have been escalated to Bernhardt. Bernhardt told the inspector general that he viewed MacDonald as a “legal client” to whom he gave advice. [Department of Interior Office of the Inspector General “Report of Investigation – Julie MacDonald,” 12/01/06, Elizabeth Williamson, “Interior Dept. Official Facing Scrutiny Resigns,” Washington Post, 05/02/07, and Charlie Savage, “Report Finds Meddling in Interior Dept. Actions,” New York Times, 12/15/08]

David Bernhardt was “part of Interior’s Executive Resources Board, which gave Julie MacDonald, the ‘disgraced… Deputy Secretary of Interior,’ a cash award of $9,628 in 2005 for her work in 2004.” She resigned “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing sensitive information to industry lawyers and lobbyists. The award lacked the required documentation of what MacDonald did to deserve it.” [Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

In another example, according to “a report by the Interior Department’s inspector general,” employees in the Department of the Interior’s Minerals Management Service (MMS) “‘frequently consumed alcohol at industry functions, had used cocaine and marijuana, and had sexual relations with oil and gas company representatives,’” while allowing oil companies to “avoid paying royalties for offshore-drilling rights,” at a cost to taxpayers of “as much as $10.5 billion over about 25 years.”

From 2002 to 2006, according to “a report by the Interior Department’s inspector general,” MMS employees “‘frequently consumed alcohol at industry functions, had used cocaine and marijuana, and had sexual relations with oil and gas company representatives.’” Inspector General Earl Devaney said MMS made “mistakes” allowing oil companies to “avoid paying royalties for offshore-drilling rights,” which would “cost taxpayers as much as $10.5 billion over about 25 years.” [Stephen Power, “Federal Oil Officials Accused In Sex and Drugs Scandal,” Wall Street Journal, 09/11/08]

David Bernhardt was a Counselor to Interior Secretary Gale Norton, when J. Steven Griles, who was the “second-ranking official of the Interior Department” was involved in the Jack Abramoff corruption scandal.

David Bernhardt, from 2001 to 2004 was Counselor to the Secretary and Director of the Office of Congressional and Legislative Affairs, and from 2004 to 2005 was Counselor to the Secretary and Deputy Chief of Staff. [LinkedIn profile for David Bernhardt, accessed 01/18/17]

J. Steven Griles, who was the “second-ranking official of the Interior Department,” was the eleventh person who pled guilty or was convicted for “aiding Mr. [Jack] Abramoff in his lobbying on behalf of Indian tribes and others.” When Griles was sentenced Abramoff was “serving a six-year prison term after pleading guilty to fraud charges in Florida. He…also pleaded guilty in Washington to charges of fraud, tax evasion and conspiracy to bribe public officials. Among those officials is former Representative Bob Ney, Republican of Ohio, who pleaded guilty…to taking bribes from Mr. Abramoff” and was “serving a 30-month prison sentence.” [John Broder, “Ex-Interior Aide Is Sentenced in Lobbying Case,” The New York Times, 06/27/07]

“The government said that Griles had asked for $100,000 for” the Council of Republicans for Environmental Advocacy (CREA) and “Abramoff solicited the funds from his tribal clients. Griles said that while he helped raise money earlier, he was unaware of…contributions [in 2001] to CREA on [the] eve of his joining the Interior Department.”

 

A judge “sentenced him to 10 months in prison for a felony conviction of obstructing a Senate investigation into corrupt lobbyist Jack Abramoff.” [James V. Grimaldi, “Judge Orders Prison Time for Ex-Interior Deputy,” The Washington Post, 06/27/07]

Solicitor David Bernhardt oversaw the forced resignation of whistleblower Robert McCarthy, who helped expose the mismanagement of Indian Trust funds. McCarthy’s whistleblowing led to a “major victory” for the plaintiff tribal members in a case in which David Bernhardt was the “lead attorney” for the Department of the Interior.

The Office of the Solicitor, led by David Bernhardt, played “‘hot potato with Robert McCacthy’s career for…two years.’” [Kristen Stade, “Agency Audit Verifies Whistleblower Mismanagement Charges,” Public Employees for Environmental Responsibility, 09/24/07]

Robert McCarthy, a “former Department of Interior attorney who spoke out about mismanagement of Indian trust funds was allowed to resign, ending a controversy in which the government threatened to fire him for leaking ‘trade secrets.’” A federal judge had previously “ratified McCarthy’s assessment about the trust system, giving the Indian plaintiffs a major victory.” [Chris Casteel, “Whistle-blower Allowed to Resign,” The Oklahoman, 02/27/08]

“McCarthy has since 2005 been trying to bring to light problems in the management of thousands of leases and contracts related to the Aqua Caliente Band of Cahuilla Indians’ lands and resources in Palm Springs and vicinity.” McCarthy had also been “named as a witness for plaintiffs in the continuing class-action lawsuit, Cobell v. Kempthorne, in which tribal members” claimed the Bureau of Indian Affairs and Department of the Interior “failed in their trust duties.”

 

After Robert McCarthy’s dismissal was proposed on August 9, 2007, responsibility for the decision was “elevated” to Solicitor David Bernhardt, who “also served as lead attorney” in the case McCarthy’s evidence impacted. Bernhardt “transferred” the decision to the Regional Solicitor in Alaska. [Kristen Stade, “Agency Audit Verifies Whistleblower Mismanagement Charges,” Public Employees for Environmental Responsibility, 9/24/07, and Arthur O’Donnell, “Agency Attorney Faces Dismissal over Indian Trust Disclosures,” Energy and Environment, 09/27/07]