Executive Calendar

Floor Speech

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Mr. WYDEN. Madam President, the Senate is just hours away from voting on whether to confirm David Bernhardt to head the Interior Department. He would replace Ryan Zinke, who was forced from office in the eye of an ethical hurricane. I am here tonight to put the Senate on notice that I believe, if David Bernhardt is confirmed as Interior Secretary, another ethical storm will be on us in the very near future. The Zinke ethics hurricane was bad enough. America should not be harmed again if it is followed by a Bernhardt ethical typhoon.

I believe the Bernhardt nomination ought to be stopped in its tracks right here, right now. At a minimum, the Senate ought to put on hold this whole matter until we can gather more information so an informed decision can be based on all the facts.

At this moment, with the debate hurtling possibly toward an end, there are four pending requests by a dozen Senators, including myself, for inspector general investigations of the issues involving Mr. Bernhardt. In the other body, there are a host of requests for investigations as well. There has been a lot of speculation about how all of these issues have been aired.

This is old news, say some. The fact is, that is not right. This doesn't go back months. My concerns aren't information that has been sitting out in public view for years. The prospect of an investigation is developing in real time right now. I am going to run through some of the basic facts before getting into deeper details.

First, according to the Office of Government Ethics, Mr. Bernhardt has 27 different former clients who are posing a potential of unlimited numbers of conflicts of interests--oil clients, coal clients, water clients, major ag and resources clients. All of them have business before the Department that the Interior Secretary is supposed to be running for the benefit of the public, not for special interests.

My sense is, with all of these conflicts, Mr. Bernhardt would have basically two choices; one, he could comply with the ethics pledge and pretty much recuse himself from everything. Lord knows what he would be doing all day because he would have to recuse himself; or two, he would basically do business and just violate the ethical principles.

Lately, he seems to have been on what seems like a victory parade on Capitol Hill, touting what he says is a record of being a champion of ethics, but if you take a look at that record and take a look at what was said during his confirmation hearing, as my son William Peter Wyden, age 11--pictures available on my iPhone after my presentation-- would say, that Bernhardt statement was one big whopper.

Mr. Bernhardt served as Deputy Secretary to Ryan Zinke. All through this parade of environmental horrors that were visited upon us, Mr. Bernhardt was the key man in that office. There is not one shred of evidence that Mr. Bernhardt objected to Ryan Zinke's corruption. There is no evidence of it. Just think about it. He is always described as the guy who made the Interior Department run and that he was the key to all of these pieces. Ryan Zinke is out there with flagrant conflicts of interest and the like. Yet there is no evidence that Mr. Bernhardt--the self-styled expert on ethics--ever objected to anything.

Second, not even 2 weeks ago, Mr. Bernhardt came before the Energy and Natural Resources Committee for his nomination. He admitted that he had a role in blocking a landmark scientific report on toxic pesticides--the kind of report that career, nonpartisan scientists and staff spend years developing in close consultation with Department lawyers. Mr. Bernhardt's excuse for blocking the report was that it needed to be ``read by the lawyers,'' and he gave the impression to the Energy and Natural Resources Committee and the country--people were following it on C-SPAN--he gave the impression, when he said it needed to be read by the lawyers, as though that was not already the routine. His claim doesn't pass the smell test. I believe he lied to the Energy and Natural Resources Committee.

Third, let's talk about his lobbying. Mr. Bernhardt deregistered as a lobbyist to join the Trump transition team before the President's inauguration. There is evidence he kept right on lobbying, nonetheless, in violation of the law. There is a whole lot of talk about mislabeled invoices and simple errors that attempted to explain it all the way. The fact is, there were multiple cases in which Mr. Bernhardt was engaged in activities that made him the de facto lobbyist, carrying on with the same job he had been doing all along.

So you have a pattern of unethical behavior right in front of our eyes. He said he had to do this lawyering. There hadn't been any lawyering. Then we go back and look at the rules, and they say that in these situations, there is lawyering all the way through the process. That is why I am very troubled about his trustworthiness.

After Ryan Zinke's departure, every Senator ought to be interested in restoring integrity and honor to the Interior Department. Yet the Trump administration has double downed on its commitment to graft by nominating David Bernhardt for this job. As I mentioned, there are pending requests for inspector general investigations. I have also called for an investigation by the U.S. attorney. Neither of those has had adequate time to respond, but the majority leader has rushed this nomination to the floor.

To indicate how fast the nomination is moving, the President obviously nominated Mr. Bernhardt to lead the Interior Department less than a month ago. Less than 2 weeks ago, the Senate Energy and Natural Resources Committee held the confirmation hearing on his nomination. Exactly a week later, the committee voted to approve it. One week after that, the Senate may choose to vote on his final confirmation. I just think it is a grave mistake to be moving forward with so many serious unanswered questions, and let me go through the history about why.

The Interior Department is still reeling from Ryan Zinke and what I call this self-generated ethical hurricane. In addition to overseeing the largest rollback of Federal land protections in American history, Ryan Zinke triggered so many Federal inquiries and investigations before he resigned in shame that you can't even easily track them. By most public reporting, he triggered at least 17 different Federal inquiries before he officially left office at the start of the year: the inappropriate censorship of scientific reports, the wasting of tens of thousands--if not hundreds of thousands--of dollars on office doors and chartered flights, and of cutting potentially illegal land deals with oil industry executives. His rap sheet basically goes on and on. It is as long as the Columbia River. In his brief tenure, Ryan Zinke demonstrated that he was better at corrupt self-dealing than he was at protecting our treasured public lands.

I mentioned David Bernhardt was Mr. Zinke's Deputy, and he was the Solicitor for the Interior Department during the Bush administration. He knows a lot about how the Department works.

I want to say this to my colleagues: If this is a guy who is hands on and if he really understands the Department of the Interior, I think you have to wonder why Mr. Bernhardt never seems to have objected to any of Mr. Zinke's corrupt activities.

The Interior Department, unfortunately, isn't new to scandal, and I am going to take a brief moment to look back at one particular scandal that relates to these matters--Julie MacDonald, a notoriously corrupt Interior official during the George W. Bush administration who was forced to resign.

In December of 2006, after an anonymous complaint sparked an investigation, the inspector general released a report showing that Ms. MacDonald had given internal Department documents to industry lobbyists and that she had run roughshod over career Department staff who tried to stand in her way.

I had serious concerns about the report and what was happening at the Department. So, literally, more than a decade ago, I placed a hold on a nominee to the Interior Department, pending some accountability for these flagrant abuses by Ms. MacDonald. The next day, which was months after the original report became public, she finally resigned. Later that year, I requested an expanded probe into Interior decisions related to the Endangered Species Act that Ms. MacDonald had been involved in.

There was evidence of her meddling having directly affected species in the Pacific Northwest. The Interior's inspector general released a report. According to the New York Times, it found ``Ms. MacDonald's zeal to advance her agenda has caused considerable harm to the integrity of the Endangered Species Act program and to the morale and reputation of the Fish and Wildlife Service, as well as potential harm to individual species.''

I bring this up because here is where David Bernhardt figures into the story.

A few weeks ago, I was surprised that Mr. Bernhardt requested to meet with me in my office. I said I would be glad to do it. When nominees come by, I usually just start with the questions: Why should I vote for you? Why should I be supportive? It is kind of an easy way for the nominee to get into it. That is why I do it.

What Mr. Bernhardt said was that he was a big ethics champion.

He said: Hey, do you remember Julie MacDonald? I am captain ethics. I advised Julie MacDonald to clean up her act.

I didn't ask Mr. Bernhardt about Julie MacDonald. He brought it up.

I have met with a lot of nominees, and I have heard a lot of reasons as to why they deserve my vote, but this meeting was certainly a head- scratcher. A nominee who had been present for Ryan Zinke's reign of corruption and conflict and who had seemed not to do anything about it had shown up, at his request, to tout his own ethics.

A few hours after the meeting in my office with Mr. Bernhardt, I decided I would look at his record for myself. Interior Department documents that had been obtained through a Freedom of Information Act request showed he had recently blocked the release of a Fish and Wildlife report about the effects of dangerous, toxic pesticides.

Career staff at the Fish and Wildlife Service, an Interior Department Agency, were on the brink of completing a comprehensive report on the impact of three pesticides on, potentially, hundreds of endangered species. This was a report by career staff. It was not put together by people who were political appointees. It defined pesticides that were so dangerous and so toxic that they jeopardized the continued existence of more than 1,000 species. This report, had it been made public, would have had profound consequences for pesticide manufacturers in the businesses that had used them.

The dedicated team of career staff at the Fish and Wildlife Service that had worked so long on this in order to make sure they really dug into the science--and they took years to be fastidious about it--wanted to make it public. The team was working rapidly to submit its findings to the Environmental Protection Agency for its review.

The documents show that before this landmark report could make it into public view, Mr. Bernhardt came along and pushed himself into the middle of the process. The documents show his emails on the pesticide report. He demanded briefings from these career scientists. They show meetings with White House officials and others about the specific section of the law that governs the role of Fish and Wildlife in these types of assessments. There is even included an email in which Mr. Bernhardt edited the letter that Interior officials used to block the release of the pesticide report. There were digital fingerprints everywhere.

I have to say that I looked at this, and I said: This sure sounds like Julie MacDonald all over again. The guy who said: ``Hey, I was the one who pushed Julie MacDonald to clean up her act,'' looked like he was meddling with the science just the way Julie MacDonald was. Ms. MacDonald was found by the inspector general to have meddled with the scientific conclusions, and now there is David Bernhardt, who has been alleged to have manipulated the process and blocked the release of an Endangered Species Act report.

So Mr. Bernhardt came to say that his ethics were unimpeachable and that he was above reproach. Yet I will tell you, for my colleagues who are thinking about this, if you read the documents I read from the Freedom of Information Act, they make him sound like another Julie MacDonald. I worked through all of these documents, and they left me with the impression that Mr. Bernhardt had lied to me about his ethics during our one-on-one meeting as well. It left me wondering why he would go out of his way to talk up his ethics when he must have known the truth was going to come out eventually.

During his confirmation hearing, he claimed he would strive to bring a culture of ethical compliance. He said he hoped to overhaul the ethics of the Ryan Zinke period and the Julie MacDonald experience. Senators called his qualifications unparalleled and claimed that the allegations of ethical misconduct against him were false. I respect those colleagues who have their opinions. I have my own, and my opinions are going to be based on the documents.

The document I entered into the record at his confirmation hearing showed that the pesticide industry repeatedly asked political appointees at the Interior Department and at the Environmental Protection Agency to intervene in the scientific analysis. It showed that Mr. Bernhardt eventually did so.

According to documents that had been made public by the Freedom of Information Act, a pesticide industry attorney wrote to then-Secretary Zinke and then-Administrator Scott Pruitt on April 13 of 2017. The pesticide industry was asking for changes to the Endangered Species Act. The industry followed it up very shortly with a request to meet with the Environmental Protection Agency's staff. At that time, a pesticide industry executive called an attorney of the Interior Department for a meeting as well. Another official from a pesticide trade association reached out to the same Interior Department attorney to discuss the Endangered Species Act.

Other supporting documentation consisted of an email that was dated October 5, 2017, from Mr. Bernhardt to Gary Frazer, the Fish and Wildlife Service's Assistant Director, who handles these endangered species. He ``was the top official overseeing the assessment of the impact,'' according to the press, while looking at the implications of these pesticides. In this email, Mr. Bernhardt asked Mr. Frazer for a briefing the following week. Additional documents show that Mr. Bernhardt held a series of meetings with Mr. Frazer over the next 3 weeks.

On October 30, according to the calendar released by the Freedom of Information Act, Mr. Bernhardt met with White House officials to discuss Endangered Species Act provisions. It is called section 7. That is the section that pertains to the role that the Fish and Wildlife plays in ensuring other Agencies aren't jeopardizing species.

An email from November of 2017 shows Mr. Bernhardt edited the draft of a letter from career Fish and Wildlife Service staff to the EPA. It announced the Interior Department wouldn't be delivering the Fish and Wildlife's assessment to the Agency as planned. This, colleagues, is where Mr. Bernhardt put the brakes on this important Fish and Wildlife report about the pesticides.

According to a New York Times report, the pesticide analysis was blocked in conjunction with a ``radical shift'' in how the Fish and Wildlife analyzes the effects of these pesticides. The change greatly increased the burden of proof the Agency is required to meet to demonstrate pesticide effects on species. According to that article in the Times, it would likely result in fewer new restrictions on pesticide use. CropLife and RISE--two trade associations that represent the pesticide companies--were very much in favor of this. They were praising it.

Based on the documents, at the hearing, I asked Mr. Bernhardt why he would come to my office and sell me on ethics when the reports and the documents I just read showed otherwise. He had no response.

At the hearing, I asked Mr. Bernhardt specifically why he would come to the office and make these claims. He had no response at the hearing but took a long sip of water as though he had meant to go on awhile. Mr. Bernhardt made the claim that career Fish and Wildlife staff ``clearly'' didn't complete any legal review on the pesticide report, which is why he stepped in.

During the hearing and while under oath, I believe Mr. Bernhardt confirmed allegations that he interfered with the release of an Endangered Species Act report. He didn't, however, acknowledge that his involvement was inappropriate political meddling.

Following the hearing and with serious questions remaining about whether he had lied under oath to the committee, I wrote the Interior Department's inspector general for her help in getting to the bottom of the matter. Here are the facts I included:

On March 28, 2019, Mr. Bernhardt appeared before the U.S. Senate Committee on Energy and Natural Resources for his confirmation hearing to become Secretary of the Department of the Interior. I questioned him about these documents and his role in blocking the Fish and Wildlife's analyses. He confirmed to me that he had reviewed the analyses. He claimed he believed the analyses had not been subject to legal review and made the determination to delay the report.

Second, Mr. Bernhardt's response:

You're dealing with some of the most difficult consultations on the planet, and when I read the document, my reaction to it was this is really an interesting draft. But it clearly didn't have any legal review, and in our world you can't ignore the law and come up with a scheme.

He continued:

And so what we decided is that the approach needed to be readdressed.

Mr. Bernhardt's answer is totally off base with respect to the way legal analyses work.

Under standard procedure, there would be legal analysis through the development of this kind of fish and wildlife report. It would involve lawyers at Fish and Wildlife, Interior Department, or both.

So I am especially troubled by what appears to be a political appointee meddling in the scientific process with respect to a report that revealed the extraordinary danger of toxic pesticides.

I am the senior member on the Energy and Natural Resources Committee, a former chairman of the committee. I cannot recall ever having this kind of exchange with a nominee.

That is why I had to request that the Office of Inspector General investigate the following: What role did Mr. Bernhardt and other political appointees at the Interior Department play in delaying or obstructing the Fish and Wildlife Service pesticide report? What role did he play in changing Fish and Wildlife policy with regard to this key section in the Endangered Species Act? What role did other political appointees--Agriculture Senior Advisor, former CropLife lobbyist, Ms. Adcock--play in the Interior Department and Fish and Wildlife Service's decision making? Whether, as Mr. Bernhardt alleged to me under oath on March 28, 2019, the Fish and Wildlife draft analysis ``clearly didn't have any legal review'' and whether, as Mr. Bernhardt alleged to me, career lawyers at the Interior Department agreed with his analysis--these are all questions that haven't been answered.

I would just say to the Senate, if you need more evidence that there are too many questions to allow this nomination to move forward, the story just gets more complicated.

After Mr. Bernhardt demonstrated that he simply was going to dance around the truth, the Senate has to question his basic understanding of the law.

So on Monday, I asked the U.S. Attorney for the District of Columbia to thoroughly investigate potential civil and criminal violations of the Lobbying Disclosure Act of 1995 by Mr. Bernhardt, as well as his former lobbying firm.

By the way, again, a newspaper reports--this time the Washington Post--that Mr. Bernhardt's ex-firm has quadrupled its business, earning nearly $5 million to lobby the Interior Department since he has taken his most recent spin through the Interior Department revolving door.

So here is what I said to the U.S. attorney: Lobbying Disclosure Act filings show Mr. Bernhardt registered to lobby for his law firm on behalf of the Westlands Water District on March 30, 2011. Westlands is the largest agricultural water district in the United States, in central California. Public reporting indicates Mr. Bernhardt ran his former lobby firm's natural resources department.

That lobby firm filed its 2016 fourth quarter report on November 18, 2016--1 week after the 2016 Presidential election--terminating Mr. Bernhardt's lobbying status as of that day.

Public reporting at the time indicates Mr. Bernhardt ``delisted himself as a lobbyist in November after Trump won the election to avoid running afoul of the new President's ban on lobbyists joining his administration.''

Public reporting and documents obtained via public records show that Mr. Bernhardt maintained his relationship with Westlands after his lobbyist deregistration on November 18, 2016. Furthermore, he may have repeatedly engaged in activity that would require him to continue registering as a Federal lobbyist. So he claimed he was no longer a lobbyist, but it sure looks as though he went right on lobbying.

The Lobbying Disclosure Act is pretty clear. I will read from public guidance provided by the U.S. House of Representatives. A lobbyist can terminate their registration ``only when the individual's lobbying activities on behalf of that client did not constitute at the end of the quarter . . . 20 percent of the time that such employee is engaged in total activities for that client; or that individual doesn't reasonably expect to make further lobbying contacts.''

What does the law mean by ``lobbying contacts?'' That is pretty clear too. The same guidance says it is ``any oral, written, or electronic communication to a covered Federal official that is made on behalf of a client'' with regard to Federal legislation, rulemaking, executive orders and the like. ``Covered Federal officials'' include all Members of Congress and their staff.

The evidence I included in my request to the U.S. Attorney for the District of Columbia included several emails showing Mr. Bernhardt may have engaged in repeated, regulated lobbying contacts with covered Federal legislative branch officials.

The first time, according to the information that is already public, appears to be on November 22, 2016, just a few days after he deregistered as a lobbyist. Mr. Bernhardt agreed to join a conference call with Westlands and the offices of Representative Devin Nunes and former Representative Valadao to discuss upcoming legislation.

The second and third times are covered in a complaint filed with the U.S. attorney's office in 2017. That complaint included copies of emails documenting Mr. Bernhardt's role in 2016 and 2017 as an intermediary for congressional staff and Westlands. It also appeared to include a trip to California for Mr. Bernhardt, paid for by Westlands.

So here is what it appears happened: Mr. Bernhardt provided his client, Westlands, with information about legislative efforts in 2016 and 2017. His old lobbying firm also disclosed lobbying on behalf of Westlands on those same legislative efforts over the same timeframe.

Another new report shows that Mr. Bernhardt was also in contact in December 2016 with a Senate employee covered by lobbying regulations.

On March 8, 2017, his old lobby firm sent Westlands an invoice for more than $27,000 for ``Federal lobbying.'' It included an itemized list of expenses related to Mr. Bernhardt's January 2017 travel to California for a ``Westlands'' trip.

On April 20, 2017, the lobbying firm filed its 2017 first quarter disclosure that is required by the Lobbying Disclosure Act. It showed Westlands paid the firm $70,000 for lobbying services related to H.R. 1769, a bill involving the San Luis unit drainage district, among other measures. It was a longstanding priority for Westlands--a moneymaking opportunity. It was sponsored by then-Representative Valadao, one of the Congressmen Mr. Bernhardt appears to have been in contact with on November 22, 2016, and January 2, 2017.

The lobby firm's 2017 first quarter disclosure was filed shortly after the firm sent Westlands the March invoice for Mr. Bernhardt's February 2017 ``Federal lobbying'' activity.

According to a media report in July of 2017, a Westlands representative claimed Bernhardt ceased all lobbying activity ``the moment he deregistered as a lobbyist.'' In May of 2017, during his confirmation process to be Deputy Secretary, Mr. Bernhardt also claimed in writing to the committee he had ``not engaged in regulated lobbying on behalf of Westlands Water District after November 18, 2016.''

These Bernhardt claims simply do not line up with the documents. Perhaps that is why he refused when one of my colleagues requested he provide complete records relating to any communications he had with covered legislative branch officials after the date of his deregistration.

Let me repeat that.

When one of the Senators on the Energy and Natural Resources Committee asked Mr. Bernhardt to provide documents that would help the committee get to the bottom of this issue, he just stonewalled. He just refused.

The Lobbying Disclosure Act isn't that burdensome. The firm and Mr. Bernhardt could have chosen to disclose his lobbying activity on behalf of Westlands. They chose not to do so, so everybody is going to ask why.

The U.S. attorney's office is responsible for enforcement of the Lobbying Disclosure Act of 1995. So this week I wrote to the U.S. attorney, requesting a thorough investigation.

I have spent this time highlighting some of the major reasons that make me feel strongly that Mr. Bernhardt's nomination should not move forward at this time. Chief among them are that I have two pending requests for investigations at this time, neither of which have been responded to because it has been a short time and the majority leader is interested in steamrolling this flawed nominee by the American people.

I am just going to conclude my remarks by summarizing a couple of Mr. Bernhardt's greatest hits with respect to why he is thoroughly unqualified to be Secretary of the Department of Interior.

The first is the matter of the conflicts. He is a former oil lobbyist. In fact, at one point, I was going to say that he was the oil industry's guy, but the oil industry lobbyists beat me to it. A secret tape came out, and they were quoted as saying: We are glad he is our guy. Dozens of his ex-clients have business before Interior. According to his ethics pledge, he should be conflicted out of working on those issues. If he remains involved, he will be flagrantly violating his ethics pledge. So if he follows the rules and stays out of all of these issues his clients have before the Department, I will tell you, for the life of me, I can't figure out what he is going to do all day because he is going to be conflicted out of all of these matters that are going to be before the Department.

Just last week, Mr. Bernhardt's previously unrevealed calendars were partially made public. To nobody's surprise, many of those secret meetings have been with industry. This is yet another item that Congress, including the other body, has asked for more information about.

So the damage has been done. The conflicts are clear. He has already taken actions that benefit his former clients and former employers.

He has taken steps specifically to weaken the Endangered Species Act--worked to weaken wildlife protections for a California fish species, according to another investigation. This weakening of protections for the California fish species is a policy change that one of Mr. Bernhardt's former clients--Westlands Water District--had been pushing for for years.

Mr. Bernhardt's Interior announced that the Agency is basically going to stop holding oil companies accountable for oilspills by ending enforcement of the Migratory Bird Treaty Act. This move has been long supported by yet another energy lobby, another one of Mr. Bernhardt's former clients.

Mr. Bernhardt's Interior Department increased drilling and mining access on millions of acres of sage-grouse habitat across five Western States. That drilling will be conducted by companies, again, linked to Mr. Bernhardt. It could make the sage-grouse an endangered species, and it could endanger the livelihoods of ranching families on the rural frontier who are just hoping to preserve their traditional way of life.

Mr. Bernhardt continues delivering for the oil and gas industry. A CNN report found the Agency has advanced at least 15 policies supported by his former clients during his time at Interior Department-- everything from the elimination of BLM's methane reduction rules and gutting safety rules for natural gas drilling on public lands, to risking the lives of workers by reducing safety standards for offshore drilling. I don't think it is any big surprise why those oil executives were cheering about Mr. Bernhardt's nomination and calling him, literally, their guy.

During the longest government shutdown on record, when national parks were unstaffed and overflowing with human waste, Mr. Bernhardt even recalled Interior employees to specifically approve hundreds of drilling permits. Certainly, the oil and gas giants are getting their money's worth.

To cap off my list, Mr. Bernhardt's Interior Department even proposed opening up the entire U.S. coastline for offshore oil drilling.

I am heading home. I am sure my colleague from North Dakota and other Senators are also. I am having town meetings and listening to people. There isn't going to be anybody who comes to my town meetings starting in the next couple of days who wants to see the Oregon coastline up for offshore drilling or who wants to see the oil derricks at Haystack Rock, and they don't want to be standing on our beaches holding oil- soaked sponges.

The entire time Mr. Bernhardt has been at the Interior Department, his former lobbying firm has just been raking in the cash. So the question really becomes: Has he already broken the law? My bottom line is that the Senate ought to take the time to actually look into that issue. It isn't some trivial matter after the self-generated Zinke ethical hurricane.

Shouldn't we say, after that ethics horror show, that it is the job of every Member in the Senate--every Democrat and every Republican--to work for policies that bring honor and credibility back to the Interior Department? I just don't think that is going to be the case if this body confirms David Bernhardt.

We will be voting, at least tonight, on the procedure, and depending on how that goes, we may be voting on final passage.

I will just tell you that I don't want to be back on this floor in a matter of months talking about yet another Interior leader, like Ryan Zinke, forced from office as the result of a grotesque scandal. The Senate doesn't have to leave the door of the Interior Department wide open for more conflicted individuals to waltz into positions of power where they can work against the interests of the American people. I believe that is exactly what America will get from David Bernhardt.

I urge my colleagues to join me in opposing this nomination.

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