How Scott Pruitt could be criminally prosecuted for EPA scandals

Pruitt is facing at least 12 federal investigations into his spending and management of the EPA, focused on whether he violated federal government ethics rules.

But to open a criminal case, prosecutors would need to meet a higher standard, legal experts say.

“Democrats have upped the ante,” said Charles Tiefer, a law professor at the University of Baltimore who served as solicitor and deputy general counsel in the House for 11 years. “A prosecutor is just not going to say, ‘Did you use your office for private gain?’ He will have to say, ‘I need to look at your intent, I need to know who else you are working with, I need to see what their intent was, and are they willing to cooperate with me to make a criminal case,’” Tiefer told the Washington Examiner.

Six House Democrats, led by Rep. Don Beyer of Virginia, made the first formal referral to the Justice Department and FBI for a criminal investigation, saying Pruitt’s conduct “may have crossed a line into criminal conduct punishable by fines or even time in prison.”

Justice Department spokeswoman Sarah Isgur Flores confirmed receipt of the referral but would not comment further.

Active investigations against Pruitt are being conducted by the EPA’s inspector general, congressional committees, and the White House, and focus on whether he has violated federal ethics regulations.

The roster of issues under investigation include Pruitt’s $50-per-night condo rental deal with the wife of an energy lobbyist who had business before the EPA, his spending of more than $3.5 million on security, his $43,000 secure phone booth, frequent first-class travel, and allegations that he retaliated against employees who questioned his judgment.

“The probes have been based on documented examples of Pruitt appearing to violate government ethics regulations,” Kathleen Clark, a law professor at Washington University in St. Louis who focuses on government ethics law, told the Washington Examiner. “These include gift and impartiality regulations and a prohibition on using public office for private gain. Those are administrative regulations.”

Serious new accusations surfaced last week involving Pruitt’s use of public office for personal reasons.

Internal emails show that Pruitt assigned an EPA scheduler to arrange a meeting with the president of the fast-food company Chick-fil-A to discuss his wife becoming a franchise owner. His wife never opened a restaurant.

Pruitt also assigned staffers and his security detail to do personal errands for him during work hours, including trying to obtain a mattress for Pruitt from the Trump International Hotel, picking up his dry cleaning, and hunting down body lotion at the Ritz-Carlton hotel.

The EPA officials asked to do many of those tasks, Millan Hupp, director of scheduling, and her sister, Sydney, have since resigned. Millan also helped Pruitt search for housing in Washington.

Clark said the accusations, if proven, show Pruitt has violated federal ethics rules.

Federal rules say public officials cannot receive gifts from subordinates, including unpaid services. The rules also prevent them from using their office for private gain.

“If the allegations are true, Administrator Pruitt has somewhat systematically engaged in improperly using government resources for his own private gain,” Clark said.

But it’s less clear if he could be criminally prosecuted for those misdeeds.

“In directing a subordinate to engage in private rather than public work, it’s conceivable that could be characterized as a theft of government services,” Clark said. “He is accused of directing a federal official to do personal favors for him on government time. That sounds to me like theft.”

But Clark acknowledged she doesn’t know of any successful criminal prosecutions under that theory.

Tiefer said Pruitt’s interactions with lobbyists in his official role as EPA administrator also could be a focus of a criminal investigation, depending on the details.

“To have criminal charges requires a strong showing about intent and about the other people like the lobbyist who he worked with on the condo,” Tiefer said. “One way to investigate a criminal charge is to look for a conspiracy in the formal sense. If the lobbyist would say to authorities that he made the arrangements with Pruitt with the specific intent to work together for a common goal involving his public office.”

The EPA’s inspector general and the House Oversight Committee are investigating Pruitt’s $50-per-night condo lease with the wife of J. Steven Hart, who retired in April as chairman of the lobbying firm Williams & Jensen. Pruitt, from late February to early August of last year, paid $50 per night for a single bedroom in the Capitol Hill condo. He was charged only for the nights he stayed there.

The lease originally had Hart’s name printed on it as the landlord, but his name was crossed out and his wife Vicki’s name was scribbled in with pen.

The EPA’s ethics office determined the leasing arrangement did not violate federal gift rules because the rate was within “reasonable market value.”

However, the top ethics official of the EPA, Kevin Minoli, later said he did not have all the facts when he ruled that the lease agreement reflected fair market value and did not violate federal gift rules.

He said he did not evaluate Hart’s business interests, or his firm’s, when making his determination that the condo was fair and not a gift.

The EPA has said that Hart did not lobby the agency while Pruitt lived in the condo.

But federal lobbying disclosures show Hart did seek help from the EPA while Pruitt rented the condo.

The filing shows Hart met with Pruitt on behalf of Smithfield Foods, the world’s largest pork processor and hog producer, on issues “relating to support for EPA Chesapeake Bay programs.”

Smithfield Foods and Hart deny the meeting was related to the food company.

In addition, Hart’s firm represented a liquefied natural gas shipping company, Cheniere Energy, though the EPA was not lobbied.

Agency documents and interviews with former agency officials conducted by Congress have shown also that lobbyists and Republican donors helped plan some of the EPA head’s foreign trips.

Tiefer said prosecutors could try to develop criminal charges using the “gratuities theory.” That would require showing Pruitt intentionally received private gain, such as a favorable condo lease, because of an official government act.

Tiefer said that standard is easier to meet than proving evidence of a quid pro quo, in which a gift is provided to someone in advance, in exchange for a special service.

“It’s much easier to prove a gratuities case than a briberies case because they don’t have to show a quid pro quo,” Tiefer said. “That is very hard to show. Here, they just have to say Pruitt did x, y, and z, and the lobbyist liked what he did and rented him the condo.”

Legal experts say the Justice Department could wait for the results of the EPA inspector general’s investigations and congressional probes before pursuing their own.

Inspector general’s offices often include law enforcement officials, Tiefer said, so they are familiar with the process of referring their findings for criminal prosecution, if warranted.

If there is no referral to the Justice Department, the EPA’s internal watchdog could recommend Pruitt receive employment-based discipline, such a letter of disapproval, a suspension, or administrative leave.

Congressional committees could make similar recommendations, hold hearings, or exact leverage in other ways, by withholding money from the EPA, for example, if lawmakers find Pruitt committed wrongdoing and are concerned about it.

But any consequence for Pruitt outside of being federally prosecuted would be determined by President Trump, who has stood steadfastly by his EPA leader.

“Ultimately it would be up to the appointing authority to decide whether to impose discipline if there is a violation,” Clark said. “For Pruitt, that is the president. And this president has a record of tolerating ethics violations on the part of his appointees.”