Possible Ethical Dilemma for Sessions Could Complicate Pruitt’s Nomination

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By Brian Dabbs

Scott Pruitt’s chances of becoming the next EPA administrator face a significant roadblock if Sen. Jeff Sessions heeds calls to recuse himself from voting on the nomination. But while a Democratic senator and others are pressuring Sessions to abstain from any vote, leading Republicans say it’s unlikely.

Sen. Richard Blumenthal (D-Conn.), several political observers and a watchdog official argue that Sessions’ situation before his potential confirmation to head the Justice Department poses a conflict of interest that prevents an objective vote from the 20-year Senate veteran from Alabama.

Sessions is a member of the Environment and Public Works Committee, the panel poised to vet Pruitt’s nomination. Should Sessions bow out of the vote, that would pave the way for lockstep Democratic opposition in committee to stall, or even torpedo, the nomination .

So far, however, Sessions or EPW Chairman John Barrasso (R-Wyo.) aren’t signaling an abstention is in the pipeline. “I don’t see it,” Barrasso told Bloomberg BNA. No historical precedent exists to guide protocol in such a circumstance, those interviewed said.

Pruitt Cleared for Hearing

The Office of Government Ethics cleared Pruitt Jan. 9 and released his financial disclosure. The disclosure, which is only four pages long, is likely far less controversial than those of many of the other wealthier Cabinet nominees. Pruitt resigned in December as director of the Rule of Law Defense Fund, which Environment and Public Works Democrats have raised as a concern, the documents show.

Barrasso didn’t specify a date for Pruitt’s hearing, but the committee’s Democrats agreed to host the nominee on Jan. 18 for the beginning of potentially multiple days of questioning, committee ranking member Sen. Tom Carper (D-Del.) told reporters.

Consistent with Barrasso’s position on Sessions’s votes for other Cabinet nominees, Senate Majority Whip John Cornyn (R-Texas) told Bloomberg BNA those votes would be in line with Sessions’ current elected role. “He’s either a senator or the attorney general,” Cornyn said. He’s one or the other, so as long as he’s a senator, I think he ought to exercise his rights as a senator.”

But Blumenthal called on Sessions Jan. 10 to withdraw from voting for himself and other Cabinet nominees during Sessions’ high-profile confirmation hearing before the Judiciary Committee.

Potential Impact on Pruitt

The Senate confirmed seven high-level Cabinet nominees for President Barack Obama on Inauguration Day in 2009. That swift process, which allowed those nominees to sidestep committee votes, has surfaced as a point of contention.

Republicans now regularly reference their willingness to approve Obama’s picks as Democrats pledge to stall Trump’s nominees over ethical questions, paperwork submission and the basic merits of nominees. Senate Minority Leader Charles Schumer (D-N.Y.) praised a delay Jan. 10 of several nomination hearings that originally had been set for Jan. 11.

A Pruitt nomination could be cleared by the full Senate quickly if Democrats agree to give unanimous consent, but many Democrats criticize Pruitt as a climate change skeptic who is too close to the fossil fuel industry. Pruitt is still involved in active lawsuits against the EPA over the Clean Water Rule, Clean Power Plan and methane limits for the oil and natural gas industry.

Sen. Ben Cardin (D-Md.), the second-highest ranking Democrat on the committee, told reporters Jan. 10 he had “major concerns” with Pruitt following a meeting between the two. “Why does he want to be EPA administrator if he’s taken so much of his time to try to block what the EPA was trying to do? That’s a fundamental question,” Cardin said.

Cardin said Pruitt didn’t discuss climate change. Cardin said he doesn’t have a position on recusal by Sessions.

Don Stewart, spokesman for Senate Majority Leader Mitch McConnell (R-Ky.), told Bloomberg BNA a committee vote is likely. “I bet if you asked any [Democrat], none of them would say that they’d give consent,” Stewart said, referring to all nominees.

Democrats hold 10 seats on the environment committee compared to 11 Republican seats, meaning a Sessions abstention would leave the committee at a deadlock. Among its Democratic ranks, the committee includes some of the chamber’s fiercest environmental advocates.

An unsuccessful vote out of committee would require 60 votes in the full Senate to advance the nomination, said Stewart. Unanimous consent is far and away the smoothest path to confirmation.

In addition to the environment committee, Sessions currently sits on the Judiciary, Armed Services and Budget committees. That means he faces the prospect of voting in committee for Gen. James Mattis, Trump’s choice for defense secretary, and Rep. Mick Mulvaney (R-S.C.), whom Trump has nominated as director of the Office of Management and Budget.

But neither of those nominees has sparked as much opposition as Pruitt.

Ethics Question Raised

In response to Blumenthal’s questioning Jan. 10, Sessions said he did not plan to vote for himself. Sessions, however, did not speak directly to the question of whether he would vote for other Cabinet nominees. “I have not thoroughly examined all of the issues. But I think there could be a conflict of interest or violation of ethics rule. And I would comply with the rules,” he told Blumenthal.

Lisa Gilbert, director of Public Citizen’s Congress Watch division, told Bloomberg BNA there is no “straightforward violation” at play with potential Sessions votes on other nominees, yet she still echoed Blumenthal’s call.

“He’s still a sitting senator, and his votes wouldn’t be conflicting in a way that would definitely require recusal, such as a financial or personal relationship conflict of interest,” Gilbert said. “But there are real reasons for him to consider pulling out. It’s highly inappropriate for him to help pick a Cabinet that he wants.”

None of those interviewed cited a specific ethics violation tied to the voting prospect. Blumenthal initially outlined his concerns in a December letter to Sessions. There, Blumenthal added that the Code of Conduct for U.S. Judges urges recusal with mere appearance of a conflict of interest. Sessions did not respond to the memo, a Blumenthal aide told Bloomberg BNA.

The Connecticut senator reiterated that argument in the Jan. 10 exchange with Sessions. “I believe it would be a conflict of interest for you to vote on other Cabinet secretaries as they are nominated by the president, who is also your boss,” Blumenthal said. “I hope you will consider refusing yourself from those votes as well because i think it will set a tone for what you will do in cases of conflicts of interest.”

Most Democratic lawmakers declined to comment on whether they support or oppose Blumenthal’s call. Sen. Patrick Leahy (D-Vt.), a Judiciary Committee member and former ranking member, however, weighed in on a personal level. “Senators have to determine what they’re going to do. I would,” he said.

Too Close to Home

Gilbert pointed to a potential “outsized interest” for Sessions in the votes, alluding to the reality that the senator, as attorney general, would have to work directly with other Cabinet members or potentially take action against agencies run by those members.

Meanwhile, Laurence Tribe, a Harvard University law professor, told Bloomberg BNA that Sessions’ votes on other nominees would violate constitutional due process, pointing to a long-held legal maxim “nemo iudex in causa sua” (no one should be a judge in his own cause).

“It certainly applies to Sen. Sessions voting on his own confirmation, and its spirit applies to his sitting in judgment on nominees the legality of whose policies and proposals as confirmed officials he would be entrusted to evaluate,” Tribe told Bloomberg BNA.

The Sessions endorsement of Pruitt could create a improperly cozy relationship between the two in the future, Sarah Binder, a Brookings Institution fellow and George Washington University Congress and legislative professor, told Bloomberg BNA. “In theory [the Sessions vote] could pressure Pruitt to be more responsive to [the Justice Department] once both were in office,” she said, adding that, as attorney general, Sessions may be “more receptive” to Senate colleagues who supported his Cabinet colleague.

Both Hillary Clinton, a New York senator before becoming Obama’s secretary of State at the outset of his presidency, and Ken Salazar, a Colorado senator before becoming Obama’s first Interior secretary, faced a potentially similar situation in 2009. But ultimately, neither had to vote on fellow nominees, according to data relayed to Bloomberg BNA by the Senate Library. Bloomberg BNA found no instances of a scenario in modern history similar to the one Sessions faces.

—With assistance from Dean Scott.

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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