Watchdog report raises new questions for top Interior lawyer

Watchdog report raises new questions for top Interior lawyer
© Greg Nash

A new report from the Interior Department’s watchdog reignites questions over the involvement of the agency's top lawyer in withholding hundreds of pages of public documents.

The report gives ammunition to Democrats who have accused Interior Solicitor Daniel Jorjani of perjuring himself before lawmakers and are now calling for a criminal investigation into the matter.

The report from Interior’s Office of Inspector General (OIG) centers around the “awareness review” process at Interior that allowed political appointees to review Freedom of Information Act (FOIA) requests — something critics say gave Trump appointees undue influence over what records were released.

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Though Jorjani told lawmakers he did not typically review FOIA requests, the report found that both political appointees and career officials withheld documents ahead of then-Deputy Secretary David Bernhardt’s confirmation hearing.

"Officials at Interior are now on the record admitting what we suspected all along: they orchestrated a coverup to protect Secretary Bernhardt during his confirmation, and all but lied to Congress about it. We call on the Department of Justice to open a criminal investigation into whether or not Jorjani perjured himself before Congress when he assured the Senate Energy and Natural Resources Committee that there was no 'heightened' FOIA review process,” Sen. Ron WydenRonald (Ron) Lee WydenHillicon Valley: Subpoenas for Facebook, Google and Twitter on the cards | Wray rebuffs mail-in voting conspiracies | Reps. raise mass surveillance concerns On The Money: Anxious Democrats push for vote on COVID-19 aid | Pelosi, Mnuchin ready to restart talks | Weekly jobless claims increase | Senate treads close to shutdown deadline Democratic senators ask inspector general to investigate IRS use of location tracking service MORE (D-Ore.), a senior member of the Senate Energy and Natural Resources Committee, and House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.) said in a join statement.

Wyden has already accused Jorjani of having “lied to the committee and perjured himself” when asked about his role in the process during his May confirmation hearing.

Though Jorjani told lawmakers at the time that he “typically did not review records prior to their release under the FOIA,” he takes more responsibility for withholding the documents in the report.

The investigation stemmed from FOIA litigation in early 2019. Interior withheld 253 pages of records it was required to produce under a court order in the suit shortly after Bernhardt was nominated to his post.

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“Hubbel Relat (who is now the DOI deputy solicitor but at the time was the DOI’s counselor to the Secretary) directed Office of the Solicitor (SOL) attorney-advisors supporting the FOIA litigation to withhold any documents that were sent to or from Bernhardt, or that referenced him in any way, from upcoming FOIA releases related to the litigation,” the report states.

The documents were released several months after Bernhardt was confirmed. Critics see that as a violation of the court order in the litigation, which required the department to review 1,500 pages each month. Both Interior and the Department of Justice (DOJ) have argued that so long as they review all the documents, it's legal to withhold some provided the agency does not withhold them indefinitely, giving the agencies discretion over when to release them.

However, that did not satisfy lawmakers, who argued both the awareness review and Jorjani's responses to questions about it don't withstand scrutiny.

According to the report, Rachel Spector, chief of Interior’s FOIA office, said she told employees “it was a ‘legitimate activity to scrutinize’ documents before release to ‘understand what might hit the press or [what] Congress might ask David [Bernhardt] about ... during the pendency of his nomination,’” adding that “choosing the order of document production was not a ‘violation of the law.’” 

Jorjani told OIG investigators that as the DOI’s top attorney, he owned the decision for withholding the documents, not Relat.

“Knowing Hubbel [Relat] and his absolute focus on compliance and squaring every corner, he probably wanted to make sure that everything he was doing was fully compliant.” Jorjani told OIG, adding, “Either I came up with the idea — and I would like to think I’m smart enough to do that — or Hubbel [Relat], being proactive, said, ‘Oh, can we do this compliantly and consistent with the court’s direction,’ and then ran it past me. ... It would be one of those two, I would think.” 

OIG does not make any recommendations in the report.

Given the defense of withholding documents from both FOIA officials and staff at Interior and DOJ, “we concluded that this matter did not warrant further investigation,” they wrote.

“Whether the DOJ complied with its obligations under the court order is a matter for the court to decide if and when a party raises it.”

DOJ did not immediately respond to request for comment.

Interior told The Hill the report “demonstrates that the department’s actions were consistent with its legal, ethics, and FOIA obligations, including the applicable court order.”

The department also defended its FOIA practices, saying it publicly formalized a process that had already been underway in the previous administration.

Jorjani, a former adviser to the Koch brothers, has also garnered the attention of environmental groups for his role in scaling back protections for migratory birds. In defending a proposal that would end repercussions for companies whose infrastructure accidentally kills birds, Jorjani wrote that the threat of jail time or a $15,000 penalty “hangs the sword of Damocles over a host of otherwise lawful and productive actions.”

Jorjani’s confirmation hearing was held alongside that of Inspector General Mark Lee Greenblatt, whose office produced Tuesday’s report.

Updated at 10:11 a.m.