Washington, DC – Today, Senator Sheldon Whitehouse (D-RI) filed documents with the Oklahoma Bar Association to supplement a complaint filed against Environmental Protection Agency (EPA) Administrator Scott Pruitt, including new records suggesting Pruitt’s former office stonewalled Senators during his confirmation process. Whitehouse, who is listed as a witness on the complaint, submitted a letter and exhibits to supplement the complaint showing how Pruitt evaded, misled, or obstructed members of the Senate Environment and Public Works Committee. This behavior, writes Whitehouse to the Bar Association, “initially stymied our Committee’s ability to adequately discharge our advice and consent responsibilities and presently stymie its ability to conduct effective oversight of Mr. Pruitt and EPA.”
The complaint, filed by the Center for Biological Diversity and Professor Kristen van de Biezenbos of the University of Oklahoma College of Law, alleges Pruitt violated the Oklahoma Bar Association’s standards of professional responsibility by misleading the Committee. Pruitt is barred in Oklahoma and served as Attorney General from 2011 to 2017 before arriving at the EPA.
“I have had a front-row seat for Mr. Pruitt’s misleading testimony and his ongoing failure to respond completely and truthfully to Committee requests for him to set the record straight,” Whitehouse writes. “This conduct is unbecoming of an attorney who is also a public official and who, under law, is required to testify truthfully to Congress.”
Whitehouse’s submissions chronicle Pruitt’s growing list of misstatements to Congress about his use of personal and government email accounts to conduct official business as Oklahoma Attorney General and communicate with industry players he is now charged with regulating – like Devon Energy and the American Fuel & Petrochemical Manufacturers.
Also included in the submission is a pair of newly released lists of Oklahoma Open Records Act (ORA) requests, which show the Oklahoma Attorney General’s office under Pruitt’s leadership sat on information directly relevant to Pruitt’s future role at the EPA. The logs show pending and completed ORA requests from the Oklahoma Attorney General’s office under Pruitt’s successor. In roughly five months on the job, current Oklahoma Attorney General Mike Hunter cleared the ORA backlog that grew under Pruitt’s watch, including over a dozen requests dating back to 2014 and 2015. Of this Pruitt backlog, at least 28 requests related to information that would be relevant to his current role at EPA, including:
- Ten requests for Pruitt’s correspondence with energy companies or related organizations;
- Six requests for correspondence with groups that have taken positions on matters before the EPA, such as the U.S. Chamber of Commerce and the Republican Attorney Generals Association;
- Four requests for documents related to Mr. Pruitt’s attacks on the Humane Society of the United States or the right to farm;
- Three requests related to Mr. Pruitt’s processing of ORA requests;
- Three requests for correspondence related to matters before the EPA; and
- Two requests for Mr. Pruitt’s calendars.
Democrats boycotted the Environment and Public Works Committee vote in February after he refused to provide the Committee information regarding his use of emails and his connections to industry. After Pruitt was confirmed, records released by the Oklahoma Attorney General showed he had used a personal email address to conduct state business and that he had a special alias government email address that he did not list on his documentation for the Senate.
“Mr. Pruitt’s pattern of misstatements and attempted obfuscation of his email use, linked with his ‘abjectly’ delayed ORA responses regarding those emails, has been a self-serving effort to conceal his ties to industries that have given money to him in the past, and which he now regulates,” Whitehouse concludes. “This conduct on its face appears to violate the standards of professional responsibility that Mr. Pruitt has taken an oath to uphold.”
Full text of Whitehouse’s letter to the Bar Association is below. A PDF copy of the letter and exhibits can be accessed here.
July 18, 2017
Gina Hendryx
General Counsel
Oklahoma Bar Association
1901 N Lincoln Boulevard
PO Box 53036
Oklahoma City, OK 73105
Dear Ms. Hendryx,
We write in reference to your ongoing investigation of Edward Scott Pruitt, a member of the State of Oklahoma Bar and former state Attorney General, who now serves as Administrator of the U.S. Environmental Protection Agency (EPA). Through this letter I am providing additional relevant information for the Bar’s consideration.
On March 21, the Center for Biological Diversity and University of Oklahoma law professor Kristen van de Biezenbos filed a complaint with you alleging Mr. Pruitt’s inconsistent and contradictory statements to the Senate Environment and Public Works Committee (EPW Committee) about his email use violated Rule 8.4(c) of the Oklahoma Rules of Professional Conduct. I was listed on the complaint as witness.
Although I do not have any non-public information about Mr. Pruitt’s testimony before Congress, I have had a front-row seat for Mr. Pruitt’s misleading testimony and his ongoing failure to respond completely and truthfully to Committee requests for him to set the record straight. His misleading answers, evasiveness, and stonewalling initially stymied our Committee’s ability to adequately discharge our advice and consent responsibilities and presently stymie its ability to conduct effective oversight of Mr. Pruitt and EPA. This conduct is unbecoming of an attorney who is also a public official and who, under law, is required to testify truthfully to Congress.
Facts
On December 8, 2016, President-Elect Trump announced he would nominate Mr. Pruitt to lead the EPA. On January 4, 2017, Mr. Pruitt submitted his required pre-hearing questionnaire to the EPW Committee, listing a “@me.com” email address as his “Business E-Mail.” Exhibit A. E-mail use and addresses have been a significant political issue, as the Bar well knows. This was the only email address he provided on that form. It was a misstatement. At his January 18, 2017 confirmation hearing,[1] I asked Mr. Pruitt whether that disclosure form had been accurate. He responded, “The @me.com address is not a business email address, I’m not sure why it was designated as such.” Exhibit B.
I then noted, “You also have an @oag.ok.gov address. Are there other email addresses that you have, are there other email address that you use for business other than your @me.com and your @oag.ok.gov email addresses?”. Mr. Pruitt answered “[t]here are no other email addresses if that’s your question, senator.” Id. That has been shown to be another misstatement.
In post-hearing questions for the record, I asked Mr. Pruitt: “How many email addresses have you used since becoming Attorney General of Oklahoma? How many do you still use? Please provide the domains of all email addresses you’ve used during your time as Attorney General of Oklahoma, along with the dates used, and note whether they were personal, professional, or both.” Exhibit C. On January 24, 2017, as part of a woefully inadequate set of responses to EPW Member questions, Mr. Pruitt provided the following written response to this question:
“I have used two e-mail addresses since becoming Attorney General of Oklahoma. I use a personal e-mail address for personal e-mail, and an official e-mail address for official business. The domain of my personal e-mail address is me.com and the domain for my official e-mail address is oag.ok.gov.” (emphasis added). Id.
This has proven to be a third misstatement.
Despite numerous outstanding questions about Mr. Pruitt’s email practices and other issues raised by us and other Members of the EPW Committee, the Committee majority scheduled a vote to report Mr. Pruitt’s nomination to the full Senate on February 1, 2017, forcing Committee Democrats to take the drastic step of boycotting the vote.[2] Mr. Pruitt reported out of Committee without any Democrats present on February 2, 2017.
As the full Senate was considering Mr. Pruitt’s nomination, the Center for Media and Democracy filed an Open Records Act (ORA) lawsuit against the Office of Oklahoma Attorney General (OK AG) for failing to respond to its ORA requests for more than two years. The lawsuit demanded that the OK AG produce, among other things, Mr. Pruitt’s emails to certain energy companies that he would be responsible for regulating as EPA Administrator. In ordering the release of records, Judge Aletia Haynes Timmons of the Seventh District Court of Oklahoma found that there had been “[a]n abject failure to provide prompt and reasonable access to documents requested . . . .”[3] This “abject failure” can be seen as bearing on Mr. Pruitt’s intent in the several misstatements.
Mr. Pruitt was confirmed by the Senate to be EPA Administrator, over the objections of many Senators that he was not forthcoming with the Senate on February 17, 2017.
On February 21, the OK AG’s Office released 7,564 pages of Mr. Pruitt’s email correspondence under the court-ordered disclosure. Documents in this disclosure showed Mr. Pruitt used his @me.com email address for business purposes, contradicting his January 24 responses to the Committee. Emails to a previously undisclosed email address, esp@oag.ok.gov, were included in this disclosure but were not associated with Mr. Pruitt. These released documents show that people outside of the OK AG’s office emailed Mr. Pruitt at the undisclosed esp@oag.ok.gov email address as far back as 2014 and his personal email address about official business as far back as 2013.
Emails using the @me.com address include (Exhibit D):
- August 14, 2013 email to Mr. Pruitt from Sarah K. Magruder Lyle, Vice-President of Strategic Initiatives at the American Fuel & Petrochemical Manufacturers (AFPM), copying Clayton Eubanks (then solicitor general). The email included the AFPM’s Renewable Fuels Standard (RFS) waiver petition it filed with EPA and expressed AFPM’s interest in Oklahoma “filing a similar waiver requests highlighting the environmental harm caused by the RFS mandate.”
- April 16, 2013 email from Amy Kjose Anderson, Civil Justice Task Force Director and Oklahoma Membership Contact at the American Legislative Exchange Council (ALEC) to Mr. Pruitt, Ashley Olmstead (Pruitt’s then-executive assistant), and Melissa Houston (Pruitt’s then-chief of staff), copying Derek Albro (Devon Energy), regarding his remarks at an ALEC meeting. (@me.com was redacted)
On February 24, Oklahoma Fox 25 reported on emails it received in response to its long-languishing (under Attorney General Pruitt) ORA request(s) that showed Mr. Pruitt had used his personal @me.com account for official business. The story also included confirmation from the OK AG’s office that Mr. Pruitt used his private email for state business. Exhibit E.
In response to the discovery that Mr. Pruitt did in fact use his personal email for official business, on March 17, 2017, Senators Carper, Sanders, Markey, Duckworth, and I requested Mr. Pruitt explain why he told the Committee that he did not. Exhibit F.
After your office indicated it was investigating a bar complaint filed against Mr. Pruitt related to his congressional testimony, Mr. Pruitt wrote to the EPW Committee acknowledging he used his personal email address to conduct official business. This was the first time he provided any hint of having used more than one official state email account, though only through an unexplained use of a plural noun. He stated:
“I believe my original response to Senator Whitehouse’s question . . . was and remains correct. But to prevent any possible confusion, I supplement my original response as follows: My practice is to conduct official business through official channels, including my state-provided email accounts.” (emphasis added) (internal quotation omitted). Exhibit G.
Mr. Pruitt also claimed any inaccuracies in his written statement on January 24 were “based on the best information available at the time and having only four day to complete approximately 1,100 written questions and subparts.” Id. The Bar should know there was no deadline for his response to the Committee—his only obligation was to provide complete and accurate answers.
On June 14, 2017, the Washington Post published a story, “Scott Pruitt used two government email addresses in his last job. He told Congress he used one.” [4] The story focused on emails with the esp@oag.ok.gov address and included confirmation from the OK AG’s office about the existence of both accounts, saying “they are both on the attorney general’s server.” Id. The emails show he sent and received email from this address and used it to interact with his senior staff as recently as October 2016.
- May 25, 2016 email to Mr. Pruitt from Will Gattenby (his then-press secretary), copying Mike Hunter (current Attorney General of Oklahoma who was First Assistant Attorney General at the time) and several other members of his staff, about his appearance before the House Energy & Commerce Subcommittee on Environment on the “Impact of Clean Power Plan on States.” It includes suggested answers to potential questions, including why he had not responded to Open Records Act requests.
October 5, 2016 email to Mr. Pruitt from Lincoln Ferguson (previously his press secretary in the Oklahoma Attorney General’s Office and currently an EPA spokesperson) about an interview focused on “discussing federal overreach (Clean Power Plan, DOL, ICANN)” that includes talking points. Exhibit H.
On June 15, 2017, Senators Carper, Sanders, Merkley, Markey, Duckworth, and I asked Mr. Pruitt to explain why he failed to disclose a third email account he used as Oklahoma Attorney General despite having been asked repeatedly to do so during his confirmation process. Mr. Pruitt has yet to respond.
At a June 15, 2017 hearing of the House Appropriations Subcommittee on Interior, Environment, and Related Agencies, Ranking Member Betsy McCollum mentioned Mr. Pruitt’s undisclosed esp@oag.ok.gov address:
“[T]here were reports that you failed to disclose an email account that you had while you were Attorney General, the one that’s esp@oag.ok.gov, and it’s kind of distressing because at your hearing you said you only had two email addresses and now this third one came forward, so you weren’t completely accurate at the time. And Senator Whitehouse said that you’ve had several opportunities to correct the record on your emails.” Exhibit I.
Mr. Pruitt volunteered a response, referencing his May 5 letter to the EPW Committee:
“[B]oth in my oral testimony, as well as there’s a letter actually that I submitted to the EPW Committee in May, that recognized multiple state email accounts, so there’s been a consistency there, the representations that you’re citing are not accurate. So we’ve informed the Committee, that was consistent with my oral testimony.” Id.
As to his oral testimony, this was yet another misstatement.
Argument
Mr. Pruitt has been consistently inconsistent and inaccurate in his testimony before Congress. Despite repeated opportunities to provide clear and complete answers to questions about his email use while Attorney General of Oklahoma, he has provided answers that have been wrong, incomplete, and misleading. Mr. Pruitt’s conduct before Congress, both as a nominee and since his confirmation, is no small matter.
Oklahoma Rule of Professional Conduct 8.4(c) holds it to be professional misconduct for any lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Comment 5 to this Rule further adds that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens.” Washington, D.C. Bar Ethics Opinion 323, which interprets a substantially similar Rule 8.4, explains that this Rule is violated by lawyers who make such unethical statements when they are not representing clients, explicitly noting “[f]alse testimony under oath in a United States court or before the Congress is prohibited.”[5] The D.C. Bar and others have found false testimony before Congress to be sanctionable behavior.[6]
Mr. Pruitt’s statements about his email practices have been misleading, and appear to have been purposely designed to frustrate the Committee’s ability provide advice and consent to the President and to conduct oversight of his work as Administrator. These have included:
- His initial failure to disclose his official work email address in his January 4 questionnaire;
- Testimony at his January 18 confirmation hearing and January 24 written response to a Question for the Record that he never used his personal email for official business, which was subsequently proven incorrect when his emails were publicly disclosed;
- His January 24 written response to a Question for the Record that he had only two email addresses while Attorney General, a business and a personal account, which was again proven incorrect by the public release of emails in June linking him to a third email account, esp@oag.ok.gov;
- His May 5 letter to the Committee in which he raised the possibility, by adding an “s,” after multiple representations to the contrary, that he may have had more than one official email address, without actually identifying those addresses to clarify the record;
- In his June 15 testimony before a House Appropriations subcommittee during which he claimed all of his statements had been “consistent” because his May 5 letter “recognized multiple state email accounts,” again without supplementing his prior answers to questions specifically asking him to disclose those accounts.
Answers about Mr. Pruitt’s email conduct as Oklahoma Attorney General has direct bearing on whether he should have been confirmed by the Senate, and continue to be an essential element of conducting effective oversight over his administration of the EPA. It was only through court-ordered disclosures of his email released, after “abjectly” delayed review, and after Mr. Pruitt was confirmed that Congress learned of Mr. Pruitt’s use of his personal email address to conduct state business and the esp@oag.ok.gov email address despite being asked about both during his confirmation process.
Email disclosures are how Congress learned of Mr. Pruitt’s symbiotic relationship with the energy companies he now regulates as EPA Administrator. In a Pulitzer Prize winning investigation, The New York Times documented Mr. Pruitt’s practice of raising political funds from energy companies such as Devon Energy and then supporting their interests through litigation against the EPA and the regulatory process. [7] In May, The New York Times reported on a checklist of rollbacks by the EPA that specifically benefit long-time Pruitt benefactor Devon Energy.[8]
Additional facts have recently come to light that suggest that under Mr. Pruitt’s leadership, the Office of Attorney General stonewalled public efforts to obtain records under Oklahoma Open Records Act, making his evasive and misleading answers to the Committee even more troubling. Because he successfully delayed the public disclosure of his emails before being confirmed, Congress did not know the breadth—and continues to be unsure of the full extent—of his interactions with Devon, other energy companies, and other parties interested in EPA issues before becoming EPA Administrator.
On February 2, 2017, I requested a list of all pending Open Records Act requests with the OK AG. On June 16, 2017, the OK AG responded to my request with a list of 77 then-pending ORA requests. None were beyond six months old, with the first dated December 7, 2016. Exhibit J.
The OK AG subsequently provided my office a list of 78 ORA requests that it had closed since February 2, 2017. Exhibit K. Seventy-five of those cases were closed by Mr. Pruitt’s successor, and 13 of those had been filed in 2014 or 2015. In other words, in the approximately five months after Mr. Pruitt’s departure, the new OK AG was able to clear up Mr. Pruitt’s years-long ORA backlog so that no requests have now been pending for more than seven months. Under Mr. Pruitt’s leadership, some ORA requestors waited over two years for a response.
A closer look at the backlog that accrued under Mr. Pruitt suggests this was not mere happenstance. At least 28 of the ORA requests that remained unanswered when Mr. Pruitt became EPA Administrator related to information that would be relevant to Mr. Pruitt’s position at EPA, including:
- Ten requests for correspondence with energy companies or related organizations;
- Six requests for correspondence with groups that have taken positions on matters before the EPA, such as the U.S. Chamber of Commerce and the Republican Attorney Generals Association;
- Four requests for documents related to Mr. Pruitt’s attacks on the Humane Society of the United States or the right to farm;
- Three requests related to Mr. Pruitt’s processing of ORA requests;
- Three requests for correspondence related to matters before the EPA; and
- Two requests for Mr. Pruitt’s calendars.
In sum, Mr. Pruitt’s pattern of misstatements and attempted obfuscation of his email use, linked with his “abjectly” delayed ORA responses regarding those emails, has been a self-serving effort to conceal his ties to industries that have given money to him in the past, and which he now regulates. This conduct on its face appears to violate the standards of professional responsibility that Mr. Pruitt has taken an oath to uphold. I hope this information is of assistance to the Bar, and urge it to complete a thorough investigation into the allegations raised against him by the Center for Biological Diversity and Professor Kristen van de Biezenbos.
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