Michael Bloomberg, Exxon and the ethical pollution of buying justice

By John Solomon
Opinion contributor

Michael Bloomberg, the billionaire and perhaps soon-to-be presidential candidate, suggested earlier this year that reluctant corporations needed to be pressed into addressing climate change.

“Employees want to work for an environmentally friendly company. And then there are the investors. … They want socially responsible investing,” the former New York City mayor and media mogul declared to National Geographic in February.

So it seems likely that Bloomberg privately cheered the news Wednesday that New York’s attorney general had filed a lawsuit against ExxonMobil alleging the oil giant deceived investors over its financial risks from climate change regulations.

The suit hit ExxonMobil right in its pocketbook, which is quite the pressure point.

Actually, though, Bloomberg did a whole lot more: He literally bought his way into the case.

That’s right. He used his money to fund a prosecutor on the New York attorney general’s staff, who then worked on the lawsuit.

Take a look at page 90 of Attorney General Barbara Underwood’s lawsuit against ExxonMobil and you will see one of the listed prosecutors is Special Assistant Attorney General Matthew Eisenson. He carries the title “special” because he was not hired through the normal channels.

Instead of state funds, Eisenson’s salary was paid by New York University’s State Energy and Environmental Impact Center, which was established 14 months ago with a $6 million grant from Bloomberg Philanthropies.

Bloomberg personally announced the initiative to great fanfare. The center proclaims its mission is “providing direct legal assistance to interested attorneys general” on climate change cases and to “identify and hire NYU Law Fellows who serve as special assistant attorneys general in state attorney general offices, focusing on clean energy, climate and environmental matters.”

The goal sounds noble. And the center insists is it bipartisan, at least in promise.

Thanks to the good work of the Real Clear Investigations team, though, we recently learned that, in practice, the Bloomberg-funded NYU program isn’t so bipartisan in practices.

Its first 14 fellows were all placed into Democratic attorneys general offices in nine states and the District of Columbia.

Not such a bipartisan record, given that more than half the attorneys general in America are Republicans. (Twenty-eight to be exact.)

The general test of ethics in government is whether a reasonable person would see a financial intervention by a special interest in a policy or legal matter as a conflict of interest or a corrupting influence.

Over the years, that test was applied to the controversy over so-called “earmarks” in Congress. The ethics premise that drove the movement to eliminate earmarks was that it was fine for Congress to pass a bill giving money to specific policy needs in a state, but it became “corrupting” when lawmakers began earmarking funds for specific projects, often associated with donors, political cronies or pet causes.

The news media and many ethics watchdogs embraced that balancing test, so let’s apply it to the Bloomberg prosecutors.

Setting aside the lack of bipartisanship in the program for a second, and the general conservative aversion to environmental laws, most reasonable lay people might see a charitable grant for a broad cause such as enforcing environmental laws in states as reasonable and not corrupting on its face.

But if the grants are targeted to ensure a prosecutor achieves a certain outcome against a certain defendant, alarm bells should go off. It is the judicial equivalent of an earmark.

The New York attorney general’s application for the Bloomberg grant that landed Special Assistant Attorney General Eisenson and a second NYU law fellow contains some troubling facts.

That application declared the attorney general’s office had an “acute need for additional environmental litigators” and specifically cited the “ongoing investigation of ExxonMobil’s representations on climate change risk.”

In layman’s terms, the AG’s office all but told Bloomberg funders their fellows would be used to help make the case against ExxonMobil.

If it walks like a duck and quacks like a duck (and the fellow actually shows up in the duck pond of the ExxonMobil case) it’s time to call it a duck.

The Bloomberg initiative’s environmental intentions may have been good, but its execution pollutes the ethical integrity and independence of the law enforcement agencies it funded.

In New York’s case, it also may run afoul of the state’s ethics rules. Those unambiguously declare that no state employee “shall receive, or enter into any agreement express or implied for, compensation for services to be rendered in relation to any case, proceeding, application, or other matter before any state agency, or any executive order, or any legislation or resolution before the state legislature, whereby his or her compensation is to be dependent or contingent upon any action by such agency or legislature with respect to any license, contract, certificate, ruling, decision, executive order, opinion, rate schedule, franchise, legislation, resolution or other benefit.”

Bloomberg’s program clearly states it wants its special assistant attorneys general to work on environmental or climate-change cases. And the state’s application for the money clearly implied that the Bloomberg fellow would work on the ExxonMobil case. These facts seem to fall into the very prohibition of the ethics rules.

It appears the New York attorney general’s office had its own concerns that accepting the special employee would run afoul of this prohibition. So, in its application for the Bloomberg fellows program, it created an ethical contortion worthy of an Olympic athlete, claiming it would treat the special assistant attorneys general as volunteers even though their pay came from the Bloomberg program.

New York isn’t the only state worried about the ethics of the Bloomberg-paid prosecutors. Last month the Oregon legislature’s chief lawyer issued an opinion that the state attorney general’s acceptance of a special lawyer paid by the Bloomberg project “does not comply with” with Oregon law and regulation.

I’m no lawyer but, after 30 years of covering politics, I’m pretty sure the commonsensical soccer mom in suburbia, the longshoreman on the dock, or the doorman at the Manhattan apartment building just might perceive the Bloomberg program as “buying justice.”

And the Bloomberg program isn’t the only troubling example that creates the perception of conflicts in law enforcement. Last week, I revealed that hundreds of U.S. Justice Department prosecutors and FBI agents have been allowed to accept free trips from special interests, many with pending business before those law enforcement agencies.

The ability of a wealthy donor to fund a prosecutor or a big corporation to wine-and-dine an FBI agent on a criminal case ought to cause some dyspepsia in the ethical conscience of America.

Law enforcement and prosecution should be above such influence peddling, whether well-intentioned or malicious.

John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He is The Hill’s executive vice president for video.