From Energy In Depth’s CLARA MCGRAIL:
MINNESOTA, D.C., AND BALTIMORE UNDER THE MICROSCOPE FOR ACCEPTING CONTROVERSIAL HELP FROM SPECIAL INTERESTS
The Minnesota Attorney General’s office is more than a thousand miles away from New York City, yet Michael Bloomberg’s money and influence are felt even there. A new lawsuit is challenging whether Minnesota AG Keith Ellison is able to accept a “Special Assistant Attorney General” from NYU School of Law’s State Energy and Environmental Impact Center (SEEIC), a program created by former New York City mayor and billionaire Michael Bloomberg.
Doug Seaton, president of the non-profit Upper Midwest Law Center, announced the lawsuit against the Minnesota AG for hiring Pete Surdo, a fellow with the SEEIC. According to Seaton, state law requires that all salaries for lawyers working for the AG’s office be paid by the state. Surdo’s salary and benefits are paid by the SEEIC, funded by a $6 million grant from Bloomberg. As with other AG offices with Special Assistant Attorneys General from the SEEIC, their participation in the program raises concerns as to how Bloomberg’s influence could seep into the AG’s office. As Seaton noted:
“We think this is a hijacking of a public office by someone who happens to be a very wealthy political donor who has his own political agenda to pursue. We think it should be apparent to all that that’s not an appropriate thing for the AG’s office to do.”
Troublingly, however, the Minnesota AG isn’t the only official to accept “free” counsel funded by third parties with a clear agenda. Recently, new documents revealed that both Washington, D.C. and Baltimore have solicited and retained outside counsel provided by an activist group. These findings raise questions about how special interests could be guiding the agenda of these attorneys general.
Outside Influence in D.C.
A recently released document shows District of Columbia Attorney General Karl Racine is coordinating with and receiving lawyers from the outside activist group Citizens for Responsibility and Ethics in Washington (CREW). Founded by Democratic donors to provide a counterbalance to the conservative oversight non-profit Judicial Watch, the group recently shifted into the partisan realm and has also criticized individuals working in the oil and gas industry, especially after holding government positions.
This move to engage with CREW follows Racine’s proposal in March to hire outside counsel on a contingency fee basis in order pursue a climate investigation against ExxonMobil, as well as his decision to bring on a Bloomberg-funded Special Assistant Attorney General from SEEIC. Taken together, this latest “Donor Agreement” document further shows the office’s welcoming attitude toward privately hired counsel – and outside influence.
According to the “Donor Agreement,” obtained by Energy Policy Advocates, attorney Robert B. McKinstry, Jr. is donating his legal services to the D.C. Attorney General “in relation to OAG’s investigation and potential lawsuit regarding the constitutionality of the actions of members of the federal government.” This suggests that McKinstry is supporting the D.C. AG’s work as it pursues a case “alleging that Mr. Trump has violated the domestic and foreign emoluments clauses of the U.S. Constitution with his hotel properties used by public officials and foreign governments.”
Given his background however, McKinstry’s donation of his services for this particular case is somewhat puzzling. According to his own website, following 31 years of work focused on climate and the environment at the law firm Ballard Spahr, McKinstry now runs his own “environmental and climate law” consulting business “focusing on the areas of environmental, climate change, and sustainability law and policy.” McKinstry directly states:
“Following my retirement from Ballard Spahr on March 31, 2018, I will continue to practice environmental law, but will focus more heavily on public interest work and consulting, particularly in the area of climate change.”
Considering this, along with AG Racine’s potential plans for an investigation into and litigation against ExxonMobil on climate disclosure, it’s unclear whether McKinstry will support the AG’s climate efforts in addition to the emoluments case – but the potential is there.
McKinstry Makes His Way to Charm City
McKinstry isn’t only assisting Washington, D.C., with pro bono services. Recently, Baltimore refused to release, again to Energy Policy Advocates, what the City described as “the correspondence between Robert B. McKinstry Jr and the City’s attorneys.” In its response, Baltimore writes:
“We assume you are seeking the agreement between the Law Department and outside counsel, which would not be disclosed because it is attorney-client communication.”
It is unclear whether this means McKinstry is among the outside counsel brought in by the City of Baltimore to pursue climate litigation, or if their relationship is something else. That said, the state of Maryland has been quite busy in this pursuit, including its Attorney General Brian Frosh who, documents obtained by Energy Policy Advocates show, is working with McKinstry, too.
Just last week a motion was filed in a lawsuit against AG Frosh asking a court to order him to release information about his office’s use of a privately-funded attorney from the SEEIC program. Even the appearance that a billionaire can use his money and power to influence a state attorney general would be concerning, as is the fact that Frosh is trying to shield his communications with this outside group from public scrutiny.
Overall, while McKinstry’s role in the climate ligations pursuits of these AGs is unclear, what is clear from these documents is that none of these parties – the D.C. AG, Maryland AG, nor the City of Baltimore – have qualms about soliciting services from outside attorneys who represent special interests rather than their constituents.