In what some legal experts view as an unusual move, the Environmental Protection Agency (EPA) has started referring reporters to Administrator Scott Pruitt’s outside legal counsel when inquiring about his numerous scandals. Recent revelations have raised questions about whether Pruitt broke federal law by using public office for personal gain.
On Friday, CNN and E&E News were both referred by the EPA to Pruitt’s outside counsel regarding news that House Democrats are calling on the Department of Justice (DOJ) to open up a criminal probe into the administrator over accusations of corruption.
On Wednesday, after the Washington Post revealed that Pruitt asked an EPA aide and a top Republican donor to help his wife find a job, EPA spokesperson Jahan Wilcox told the Post: “I would refer you to outside counsel.”
The most recent series of scandals involving Pruitt include reports that he asked top aides to help with personal tasks, such as house hunting, purchasing a used mattress from Trump Hotel in Washington, D.C., and finding moisturizer from the Ritz Carlton. These revelations were cited by House Democrats in their call for the FBI and DOJ to investigate Pruitt.
According to federal rules, public officials cannot use their office for private gain, and federal employees are prohibited from making “a donation or a gift to an official superior.” Federal officials are also barred from accepting “a gift from an employee receiving less pay than himself.” This includes carrying out tasks they were not paid to do.
Pruitt is facing over a dozen investigations into his spending and management decisions, including expensive first-class travel and a sweetheart condo deal linked to an energy lobbyist.
“It strikes me that this move of referring reporters to Pruitt’s outside legal counsel may be a way for the agency to distance itself from Pruitt’s alleged misdeeds,” Kathleen Clark, a law professor at Washington University in St. Louis who focuses on government ethics law, told ThinkProgress.
As Clark explained, the job of the EPA spokesperson is to speak on behalf of the agency, not on behalf of Pruitt in his personal capacity. It can be a bit of a “tightrope” to walk, she said, in determining where a government official’s interests diverge from the interests of the agency.
For example, “if Pruitt knowingly provided inaccurate testimony or inaccurate financial disclosures, he faces potential criminal liability, the agency doesn’t face criminal liability,” Clark said. “And so this may simply reflect this fact that Pruitt’s interests are not absolutely congruent with the agency’s interest.”
The timing, however, cannot be ignored. It’s a “red neon sign,” said Charles Tiefer, a law professor at the University of Baltimore. Tiefer, who previously served as solicitor and deputy general counsel in the House for over a decade, described the EPA press office’s shift as “very unusual.”
“There was a moment of change in the nature of the allegations,” he said, “and that was when the congressmen specifically requested about criminal charges.”
The news of this shift in handling press requests also comes after an escalation in hostility by the EPA towards the press. On June 6, in response to a press inquiry about top EPA aides resigning, Wilcox reportedly told Elaina Plott of The Atlantic, “You have a great day, you’re a piece of trash.”
The EPA also recently barred reporters, including those from CNN and the Associated Press, from attending a summit on chemicals.
“Some of the most serious allegations against Pruitt are that he failed to recognize that the agency has its own interest… He has tried to commandeer the agency for his own personal purposes,” Clark said. “It may be that the agency spokesperson recognizes that the EPA is not Pruitt’s personal public relations firm.”
Press officers are also not necessarily prepared to handle difficult legal questions, said Tiefer. Questions regarding whether something is a violation of criminal law are better addressed by lawyers.
According to the Washington Post, Pruitt’s outside counsel is Cleta Mitchell, a political law attorney at Foley & Lardner LLP who helped Pruitt establish his legal defense fund in May. To advise him, Pruitt has also reportedly hired white-collar defense lawyer Paul Rauser, co-founder of the firm Aegis Law Group.
In April, Mitchell tweeted: “Scott Pruitt is an American hero, dedicated to draining the Swamp. This brave man dares to wrangle the EPA to its proper role. Hang in there, Scott Pruitt!!”
Scott Pruitt is an American hero, dedicated to draining the Swamp. This brave man dares to wrangle the EPA to its proper role. Hang in there, Scott Pruitt!! #supportScottPruitt
— Cleta Mitchell (@CletaMitchell) April 6, 2018
Pruitt and Mitchell are both from Oklahoma and are reportedly a longtime friends. She has previously represented Sen. Jim Inhofe (R-OK), Sen. Marco Rubio (R-FL), and former Sen. Jim DeMint (R-SC). Mitchell was also a longtime lawyer for the National Rifle Association (NRA), and served on its board.
Recently, Mitchell has found herself on the sidelines of the Mueller investigation. In March, House Democrats included her on a list of individuals they want to interview after Mitchell reportedly raised concerns about the NRA’s ties to Russia and whether it channeled funds to help Donald Trump win the presidency.
Mitchell has since strongly denied having such concerns, telling McClatchy, “I have no knowledge of anything like this and zero concerns whatsoever about anyone — Russians or otherwise.”
A 2013 profile by The Atlantic examining her anti-gay rights stance described Mitchell as “part of the behind-the-scenes power-players that run the show in the Beltway.”
Both Mitchell and the EPA did not respond to ThinkProgress’ requests for comment about why the agency’s press team was now referring some questions to Pruitt’s outside counsel, or whether they had received any specific instructions to do so.
“Given the many probes into Scott Pruitt’s misconduct, he obviously needs outside counsel and it is appropriate to separate his legal issues from the EPA’s public responsibilities. Such separation will be even more important if Pruitt becomes the subject of a criminal probe by the Justice Department, as I requested,” Rep. Don Beyer (D-VA) told ThinkProgress in a statement.
However, Tiefer — who believes Pruitt is “in total control” of the agency — added there could be secondary reason why the EPA has started referring press requests to outside counsel: paranoia.
“If you’re Pruitt, you may worry you don’t have loyal people,” Tiefer said, explaining that public relations officers are also subject to the Freedom of Information Act (FOIA). Outside counsel, on the other hand, is not.
“If someone with subpoena power rather than merely FOIA starts demanding the communications,” he went on to say, “the ones with outside counsel carry attorney client privileges. Pruitt is paranoid, he would figure these kinds of things.”