By invoking a law regulating foreign agents to pursue prosecution of former Trump campaign officials, special counsel Robert Mueller opened the door to more intense scrutiny of some U.S. environmental groups, according to legal analysts who say China and Russia use such groups to influence America’s energy policy.
But these legal analysts said they also see a danger that Mueller’s investigation could set a precedent for the Justice Department to “selectively enforce” the Foreign Agents Registration Act in a manner that undermines the rule of law and potentially jeopardizes national security.
The Trump administration, they say, should closely examine the relationship between environmental advocacy groups and foreign governments that are considered strategic competitors of the U.S.
“If the Mueller probe has any real benefit, it is that it opened the door for the Justice Department to employ FARA as a basis to investigate green groups that are undermining our country and aiding socialist/communist regimes,” lawyer Mark Fitzgibbons told The Daily Signal.
Because these same environmental groups persistently lobby for policy changes to restrict U.S. energy use and the projection of U.S. military power, the groups may operate at the direction and encouragement of hostile foreign actors, Fitzgibbons and other reform proponents argue.
The Foreign Agents Registration Act, which predates World War II, requires anyone who acts as an agent of foreign principals “in a political or quasi-political capacity” to disclose that relationship periodically, as well as “activities, receipts, and disbursements in support of those activities,”according to the Justice Department.
But because FARA has not been strictly enforced, little case history and precedent exist for investigations into the actions of possible foreign agents who decline to disclose their activities, Tom Fitton, president of Judicial Watch, a Washington-based nonprofit government watchdog, told The Daily Signal in a phone interview.
Americans and their elected representatives have been deprived of the openness and transparency they need to evaluate the political activism and legal tactics of environmental advocacy groups, Fitton said.
The disclosure requirements of the Foreign Agents Registration Act explicitly state that information made available through registration would help ensure that citizens and officials can get the specifics they need to evaluate the activities of anyone who registers “in light of their function as foreign agents.”
But Fitton expressed concern that the law could be misused and misapplied to advance a political agenda detached from its stated purpose.
“We already know the law has been selectively enforced,” Fitton said of the Foreign Agents Registration Act. “Violations of FARA have typically been handled administratively. If you didn’t file paperwork, you were told to file it. But the Mueller special counsel operation, desperate for prosecutions, started criminally prosecuting FARA regulations where they had never been criminally prosecuted before.”
Deputy Attorney General Rod J. Rosenstein appointed Mueller to serve as special counsel on May 17, 2017, to investigate allegations that the Russian government interfered with the 2016 presidential election.
Mueller, a former FBI director, also is probing allegations that the Trump presidential campaign coordinated with Russian operatives in its efforts to win the election.
So far, the Mueller investigation has resulted in dozens of indictments and eight guilty pleas, none of which involves coordination or collusion between Moscow and the Trump campaign. An updated list of charges, pleas, and resulting convictions is available here.
Paul Manafort, Trump’s campaign chairman for two months, pleaded guilty in September to charges that he violated FARA because he failed to disclose to the Justice Department that he worked as an agent of Ukraine’s government and as a lobbyist for pro-Russian political forces in that country.
Richard Gates, a former Trump campaign aide and business associate of Manafort’s, also pleaded guilty to FARA violations in connection with his lobbying efforts in Ukraine.
No Comment From Special Counsel
Mueller has pointed to potential violations of foreign agent registration rules in his prosecution of 13 Russian individuals and three Russian companies accused of trying to manipulate the 2016 election through internet and social media campaigns.
Fitton favors counterintelligence investigations into the actions of groups and individuals who appear to skirt registration requirements, but has expressed concern with how the law has been applied against Trump campaign officials.
“In my view, the Mueller team has been manufacturing dubious FARA charges against Trump campaign people,” Fitton told The Daily Signal. “In the case of Manafort, he was really working for political parties, not a foreign government. So this is a pretty dramatic expansion of FARA.”
The Daily Signal sought comment from the Special Counsel’s Office on concerns that the law might be “selectively” or “unevenly” applied in a manner that enables some environmental activists to escape scrutiny.
“We will decline to comment,” Mueller spokesman Peter Carr replied in an email Tuesday morning.
During a December hearing by the House Oversight and Government Reform Committee, Fitton commented on how some actions of nonprofit advocacy groups and their relationships with foreign governments could activate requirements of the Foreign Agents Registration Act.
In response to questions from Rep. Paul Gosar, R-Ariz., Fitton said that if advocacy groups are found to be “taking orders from a foreign government” or “beholden to them financially,” they probably should be required to register under the law.
During his exchange with Fitton, Gosar said environmental advocacy groups that oppose natural gas development and the process of hydraulic fracturing (also known as fracking) have received millions of dollars in grant money that congressional investigators traced back to the Russian government.
Environmental groups such as the Natural Resources Defense Council “have undermined the energy sector in the United States and even got fracking banned in the cash-strapped state of New York,” Gosar said.
‘Cozy’ With the Chinese
If there is genuine concern on the part of Mueller, the media, and other members of Congress about Russian meddling in American affairs, the Arizona Republican said, then environmental advocacy groups working to disrupt American energy while receiving financial support from the Russian government should be subjected to investigations.
Gosar, who also sits on the House Natural Resources Committee, took the opportunity to focus attention on the relationship between environmental activists and China’s communist government. In 2018, the Natural Resources Committee sent letters to several environmental groups, inquiring about their relationship with government entities in China and Japan.
The Natural Resources Defense Council, for example, has “gotten cozy with the environmentally unfriendly Chinese government while suing the U.S. government whenever it can,” Gosar said during his exchange with Fitton.
He suggested that the environmental group’s lawsuits against the Navy and its “weapons development programs” could work to the strategic advantage of China’s communist government.
The letters, signed by then-Chairman Rob Bishop, R-Utah, and Rep. Bruce Westerman, R-Ark., who chaired the Subcommittee on Oversight and Investigations, asked environmental organizations either to provide documentation showing they are in compliance with FARA or to explain why they are not registered as foreign agents.
The committee’s June 5, 2018, letter to the Natural Resources Defense Council describes how the environmental group took an “adversarial approach” toward the U.S. while refraining from criticizing Chinese officials.
“Over the last two decades, your organization has sued the U.S. Navy multiple times to stop or drastically limit Naval training exercises in the Pacific arguing that naval sonar and anti-submarine warfare drills harm marine life,” the letter says. “We are unaware of the NRDC having made similar efforts to curtail naval exercises by the Chinese.”
In their letter, Bishop and Westerman say the Natural Resources Defense Council “sought to shape public opinion” by working to “discredit those skeptical of China’s commitment to pollution reduction targets or to honestly reporting environmental data.”
Funding for Green Groups
The New York-based NRDC, which is devoted to opposing the use of fossil fuels, “has more than $180 million in assets to fund its programs,” according toInfluence Watch, a project of the Capital Research Center.
Recent tax records show NRDC reported $155.2 million in revenue and $126.7 million in expenses. It received more than $15 million in grants from the San Francisco-based Sea Change Foundation, which has received funding from a Bermuda-based company that members of Congress view as the key component of a “paperless money trail” from the government of Russian President Vladimir Putin to the coffers of U.S. environmental groups.
The Energy Foundation, also based in San Francisco, has received $64 million in grants from the Sea Change Foundation, making it the single biggest recipient of such grants to date. The Energy Foundation also provided NRDC with tens of millions of dollars in grants, according to foundation records.
Green activism centered on the United Nations’ Paris climate agreement, which requires industrialized countries to curb greenhouse gas emissions, attracted the attention of some in Congress. The reason is an apparent concerted effort by activists to provide China with political cover to avoid complying with the terms of the U.N. agreement, according to the letters from the House Natural Resources Committee.
In a Sept. 5, 2018, letter to the World Resources Institute, the committee points out that the environmental group “hailed China’s 2015 pledge for the Paris agreement to ‘peak’ greenhouse gas emissions by 2030 as a ‘serious and credible contribution’ despite claims that it merely amounted to ‘continuing with business as usual.’ Conversely, WRI advocated for unrealistic Paris Agreement commitments by the United States.”
The World Resources Institute, a Washington-based nonprofit environmental research organization, has more than $2 million in assets, more than $3 million in total revenue, and about $1.6 million in expenses, according to Influence Watch.
Evidence gathered by House committees in the past year points to a deliberate strategy by green activists “to tank” America’s free market system while aiding foreign governments, Fitzgibbons, a lawyer and conservative strategist based in Virginia, told The Daily Signal in an email.
“DOJ should unleash what are called ‘civil investigative demands’ (CIDs) on many green groups that are believed to be violating FARA,” he said, referring to the Justice Department. “I believe CIDs are unconstitutional because they are searches of private papers without probable cause, but perhaps when socialist green groups get the sting of these menaces, the left’s erstwhile civil liberties groups will see the light about them. In the meantime, the DOJ seems to clearly have grounds to investigate green groups suspected of violating FARA.
To date, none of the green groups addressed in congressional correspondence have agreed to register under the Foreign Agents Registration Act, and all deny operating as foreign agents.
However, email records obtained through Freedom of Information Act lawsuits show that green activists cited in the House committee’s letters are advancing foreign governments’ policy goals in a manner consistent with the actions of foreign agents, according to sources who have examined the emails.
Policing ‘Unregistered Activity’
The Institute for Energy Research, a Washington-based nonprofit that favors free market energy policies, filed the FOIA lawsuits last year against the Treasury and State departments seeking information about foreign governments’ support to environmental advocacy campaigns in the U.S.
The Treasury Department did not respond to The Daily Signal’s request for comment on the FOIA suits; the State and Justice departments declined to comment.
Chris Horner, a lawyer with Government Accountability and Oversight, a public interest law firm, said in an email to The Daily Signal that he shares Fitton’s concerns about how the Foreign Agents Registration Act might be “selectively applied” going forward.
“Either the special counsel’s invocation of the FARA law represents remarkably selective policing of possible unregistered activity on behalf of foreign governments, depending upon one’s political associations, or signals that DOJ has decided to take this law seriously and has noticed, e.g., congressional probes into other potential violations,” said Horner, who filed the FOIA lawsuits on behalf of the Institute for Energy Research.
“Given some rather startling information made public thanks to a congressional investigation—now neutered by the new [House] majority—surely this includes inquiries into environmentalist pressure groups. If that is not the case, then we have yet one more case of laws being unevenly applied, or selectively applied, depending upon ideological or political affiliation.”
After reaching a settlement with the State Department in December, the Institute for Energy Research received email records from the department that provide insight into the relationship between the World Resources Institute and Chinese government officials.