This Is Still Happening is a feature in which Slate will attempt to offer an update on senior-level administration corruption, what could be done to bring the officials to account, and what Democrats are doing in response (generally, nothing). The eighth installment is about a figure who, despite his virtual anonymity, is one of the administration’s swampiest, David Bernhardt.
The Official: David Bernhardt, secretary of the interior
What Is Still Happening: Unless you’re paying really close attention, you probably haven’t even heard of David Bernhardt. The former oil lobbyist who took over from scandal-plagued Ryan Zinke as head of the Department of the Interior has done much better than his predecessor at staying out of the news. Still, without riding around on a horse or insisting on flying his personal flag, he’s done an impressive amount of damage just by running a standard Republican secretive pay-to-play office.
The one way that Bernhardt has attracted negative attention for going above and beyond in corrupting the workings of government for partisan interests was his decision earlier this month to skirt federal law to allow President Donald Trump to use the heavily restricted interior of the Lincoln Memorial as a backdrop for a Fox News town hall.
“Speechmaking” and “special events” that might draw a crowd to the memorial are strictly prohibited. So to allow Trump—who during his town hall said he’s been “treated worse” than the assassinated 16th president—his perfect venue, Bernhardt had to bend the rules in the middle of a pandemic. He was more than happy to do that, issuing an order stating:
Given the extraordinary crisis that the American people have endured, and the need for the President to exercise a core governmental function to address the Nation about an ongoing public-health crisis, I am exercising my authority to facilitate the opportunity for the President to conduct this address within the Lincoln Memorial, by directing a partial security-based closure of portions of the Lincoln Memorial.
Given that Trump’s Cabinet officials seem to feel they can pretty much get away with anything while the nation is preoccupied with COVID-19, the news story was a relative blip. It once again, though, shows the extent to which the federal government has been transformed into Trump’s personal and political concierge service.
Aside from this co-opting of federal landmarks to promote the president’s reelection campaign, Bernhardt’s abuses of office have been colorless but effective. They include:
• Manipulating previously unexploited loopholes in federal law to renew temporary appointments over and over and over again so that they avoid constitutionally and legally mandated Senate approval. This includes the particularly controversial appointment of acting Director of Bureau of Land Management William Perry Pendley. Pendley, a former industry lobbyist, has written that “the Founding Fathers intended all lands owned by the federal government to be sold”—arguing, for good measure, that such sales would honor the “power, dignity and authority” of the states as cited in the Supreme Court’s decision to gut the Voting Rights Act in Shelby County v. Holder. The Washington Post reported that his record of work as an advocate for the fossil fuel and ranching industries led to him submitting “a 17-page recusal list of 56 clients and one stock holding.”
• Upon entering office, Bernhardt himself was placed under an inspector general investigation for seven different complaints tied largely to his own former work as a lobbyist. (Bernhardt was cleared of wrongdoing in one of those investigations, which found that his meddling with the results of a scientific assessment by Fish and Wildlife Service scientists was “unusual” but didn’t technically violate “his ethics pledge or Federal ethics regulations.”)
• During last year’s federal shutdown, Bernhardt kept 800 staff on the job to process new oil and gas permits, at least 73 percent of which went to companies with whom he had personal ties. He also ignored precedent and may have violated the law to keep the national parks open in a transparent ploy to boost the president’s shutdown standing, with disastrous consequences for said national parks.
How Long It Has Been Going On: Bernhardt has been dancing around ethical boundaries as a federal employee for the benefit of energy corporations and the GOP for the better part of two decades. In the early 2000s, Bernhardt was a top official in President George W. Bush’s Interior Department. One of those jobs was as the department’s top lawyer and ethics officer. During that time, Bush’s Interior Department was infamous for its criminal and ethics debacles, including the Jack Abramoff pay-to-play scandal and, as described by the New York Times, “allegations of financial self-dealing, accepting gifts from energy companies, cocaine use and sexual misconduct.” Bernhardt was also personally involved in efforts to replace scientific findings in department congressional testimony with industry-funded reports and to give an unexplained cash award payment to an official who had resigned in disgrace for doctoring scientific reports and bullying scientists.
After leaving the Bush administration, Bernhardt became a top lobbyist for the energy industry with the firm Brownstein Hyatt Farber Schreck. In 2017, he reentered government as Trump’s appointment to be deputy secretary of the interior and immediately started violating ethics obligations again. Last year, the New York Times reported that newly revealed invoices showed that Bernhardt continued to work as a lobbyist for several months after he “filed legal notice with the federal government formally ending his status as a lobbyist.” (Bernhardt and his firm claimed that the forms that showed this were in error.) Also, during his confirmation hearings, Bernhardt apparently falsely denied having done lobbying work for a Russian energy giant that was eventually tied to Russia’s efforts to interfere in the 2016 election and put under U.S. sanctions. (Bernhardt and his firm claimed that the forms that showed this were in error.)
Once in the deputy secretary job, Bernhardt shirked Freedom of Information Act requests by deleting meetings from his calendar, helped Zinke keep details of deliberations over controversial reassignments of career officials completely secret, blocked the release of scientific assessments about the dangers of certain chemicals to hundreds of endangered species after intense lobbying from chemical corporations, and rolled back protections for the threatened delta smelt, allowing agribusiness to intercept water sustaining the ecosystem of the San Francisco Bay Delta and helping earn his former lobbying clients millions of dollars. (His former lobbying firm quadrupled its business through his first few years in the administration.)
What Would Normally Happen: As noted, this guy’s been running this particular Washington grift for nearly two decades. So, nothing would normally happen, except maybe a few slaps on the wrist from an inspector general or two.
What Democrats Have Done: Eight Senate Democrats pushed for the inspector general probe that was launched last year, and a number of House Democrats pushed for an explanation of Bernhardt’s calendar deletions. Nobody, as far as I could find, has pushed for him to resign. Last year, Sen. Ron Wyden of Oregon called on the U.S. attorney for the District of Columbia to investigate potential lobbying crimes by Bernhardt, but no investigation happened. (That U.S. attorney has since been replaced by one who is quite busy reversing DOJ convictions and sentencing recommendations of top Trump allies who had already been successfully prosecuted.)
What Is Likely to Be Done: The inspector general’s office may gently rebuke Bernhardt upon completion of its investigations, or it might not. The House Energy and Commerce Committee might investigate the inspector general’s findings, or it might not. Whatever happens, Bernhardt is pretty safe in his job to keep doing his swamp thing. (The swamp here is figurative; the real swamps are having their water supply diverted to his old clients.)
How Removable This Stuff Is: This is baseline 21st century Republican administrative corruption, in which regulators are appointed specifically for their willingness to destroy the things they’re officially supposed to protect. It’s the cost of having a two-party political system in which one party is completely and utterly in the thrall of corporate and lobbying interests and the other party is slightly less so. 3 out of 10.