Several of President Donald Trump’s personal attorneys have opened the White House up to yet another ethics minefield. With Trump’s impeachment acquittal in the rearview mirror, some on his legal team will be well-positioned to help their wealthy clients with business before the Trump administration, potentially leading 1600 Pennsylvania Avenue into a new ethical morass.
These attorneys are facing questions ranging from controversies involving their current or recent clients, how they’re being compensated, and whether they may have violated tax law in their defense of the president.
Exhibit A is the president’s personal lawyer Rudy Giuliani, who, rather than participating in Trump’s defense during the impeachment trial, was himself a major topic of debate on the Senate floor.
Giuliani’s name appears hundreds of times in the House Judiciary Committee’s report accompanying the articles of impeachment. Indeed, there’s a strong argument that Giuliani’s Ukraine efforts led to impeachment, creating the biggest threat to Trump’s presidency to date. To recap in a handful of words what has been widely reported, Giuliani led a shadow diplomatic effort to pressure the government of Ukraine to launch and announce investigations involving Trump’s potential presidential opponent, former Vice President Joe Biden.
Questions have swirled around Giuliani’s role. “The public should be able to trust that government work, including foreign diplomacy, is being conducted in their best interest—not one individual’s private financial interests and certainly not just the president’s political interests,” Delaney Marsco, the Campaign Legal Center’s legal counsel for ethics, told the Project On Government Oversight (POGO). “With Giuliani, the public doesn’t have that clarity.”
During the impeachment trial, a senator asked the House impeachment managers and the president’s defense team who was paying for Giuliani’s Ukraine work. One of Trump’s impeachment defense lawyers, Jay Sekulow, avoided answering the question.
“I don’t know who’s paying Rudy Giuliani’s fees,” responded House impeachment manager Representative Adam Schiff (D-CA). But “if other clients are paying and subsidizing” Giuliani’s work for Trump, “it raises profound questions.”
“There are leaders around the world who are watching this and they’re saying the American presidency is open for business,” Schiff said.
Giuliani has said his legal representation of the president, which began in April 2018, is provided free of charge, though there’s reason to think he may not be telling the full story—especially when it comes to his activities in Ukraine.
Concerns about the former New York City mayor’s role are not limited to Democrats. Senator Lindsey Graham (R-SC), a staunch defender of the president who voted to acquit him, said the “Rudy element” in the Ukraine affair may have been inappropriate, and Attorney General William Barr has reportedly told the president in private that Giuliani creates risks for the Trump administration, according to the Washington Post.
For some of the period Trump has been his pro bono client, Giuliani told Reuters he was paid $500,000 by his associate Lev Parnas, who was recently indicted for violating campaign finance laws. The charges against Parnas and his business partner Igor Fruman include funneling foreign money, some from an unnamed Russian businessman, into U.S. political campaigns. Giuliani said the work for Parnas did not involve Ukraine and that it involved assessing anti-fraud technology and counseling him on “regulatory issues.” He said he was certain the source of his funding was not foreign.
Yet documentary evidence shows Giuliani enlisted Parnas and Fruman in Giuliani and Trump’s push to get Ukraine to investigate Biden (during this campaign, the Trump administration froze hundreds of millions in U.S. military aid, allegedly as leverage).
While the congressional impeachment inquiry focused on whether the president abused his power for personal political gain, the Justice Department has accused Parnas and Fruman of illegally taking actions for the benefit of a foreign interest.
Parnas and Fruman “sought political influence not only to advance their own financial interests but to advance the political interests of at least one foreign official—a Ukrainian government official who sought the dismissal of the U.S. ambassador to Ukraine,” according to the top federal prosecutor in the Southern District of New York. After Giuliani spoke to the president about how U.S. ambassador to Ukraine Marie Yovanovitch was a roadblock to getting Ukraine to launch investigations involving Biden, Trump removed her from her post in April 2019.
It’s unclear whether funding routed through Parnas, or another way, helped finance Giuliani’s Ukraine exploits.
And Trump has failed to disclose the value of Giuliani’s “gifts of legal defenses,” as is legally required in his annual financial disclosures. (In 2018, POGO urged the Office of Government Ethics to review the omission and underreporting of Trump’s arrangement with Michael Cohen regarding Stormy Daniels and other services provided.)
This legal mandate, if complied with, is one of the few checks on an arrangement that poses unique ethics challenges.
“We still do not know the full universe of who was paying Giuliani and subsidizing his gratis work for the president because he isn’t bound by the ethics laws that demand disclosure,” Campaign Legal Center’s Marsco said. “Some information has come out about who Giuliani’s paying clients were, but it is not the same as having the full financial disclosure that is required for other government employees. We therefore have no idea whose interests Giuliani was serving—and we certainly cannot be sure it was the public’s interest.”
Walt Shaub, a former director of the Office of Government Ethics, is similarly troubled by the lack of transparency around Giuliani’s work. “Given the reporting on his apparent role, he should have been appointed as a special government employee, which would have subjected him to conflict of interest laws and certain financial disclosure requirements,” Shaub, who is now at the nonprofit Citizens for Ethics and Responsibility in Washington, told POGO. (In 2017, POGO wrote to then-White House Counsel Don McGahn recommending that presidential advisors, such as billionaire investor and former Trump advisor Carl Icahn, be made special government employees to make them subject to ethics laws and regulations.)
“Among other things, that might have revealed to ethics officials whether he was being compensated for his work and, if so, by whom,” Shaub said.
Beyond the incomplete financial disclosures, the White House has been stonewalling congressional oversight, does not make public its visitor logs, and is exempt from the Freedom of Information Act.
Another way the public has been kept in the dark: Giuliani has not registered as a foreign lobbyist, illustrating the Foreign Agents Registration Act’s broad loophole for attorneys. (The law requires lobbyists for foreign interests to disclose the names of individuals and organizations they contacted and the materials they distributed on behalf of their foreign client.) Giuliani is reportedly under investigation for violating the law, and some experts say he should register. Only thanks to sources willing to talk to reporters has a picture emerged of Giuliani’s extensive representation of foreign clients seeking to influence the U.S. government while he simultaneously serves as a personal attorney to the president.
There is no “clear legal framework for assessing all the ethics problems with informal advisory roles like Giuliani’s, so it remains to be seen how we can hold President Trump and Giuliani accountable,” Marsco told POGO. “The fear is that, because President Trump was acquitted, he will feel empowered to continue using people like Giuliani—who should be acting as strictly personal advisers—to do government work outside the regular channels, and the public will remain in the dark.”
And that appears to be what is happening. Attorney General Barr recently confirmed that the Justice Department has an “intake process” to review Giuliani’s information from Ukraine, including examining claims regarding Joe Biden and his son, Hunter Biden.
Giuliani, his attorneys, Parnas’s attorney, and the White House did not respond to a request for comment. Fruman’s attorney declined to comment.
Alan Dershowitz, a Harvard law professor known for representing celebrity criminal defendants, also has other business before the Trump administration. But unlike Giuliani, he has officially filed a lobbying disclosure.
Dershowitz is a registered lobbyist for Israeli billionaire Dan Gertler, according to a disclosure dated January 21. Dershowitz is working through a firm run by former FBI Director Louis Freeh, who is also listed as lobbying on Gertler’s behalf. The Trump administration sanctioned Gertler at the end of 2017, cutting off Gertler’s access to his U.S.-based assets. According to the Treasury Department, Gertler “amassed his fortune through hundreds of millions of dollars’ worth of opaque and corrupt mining and oil deals in the Democratic Republic of the Congo” and “used offshore companies to facilitate such deals.”
Dershowitz controversially said in Trump’s defense on the Senate floor in January that “if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” That’s an argument critics say would effectively condone almost any kind of presidential abuse of power. After a torrent of criticism, Dershowitz said his remarks had been misconstrued.
Dershowitz has said he will not accept compensation for his legal defense of Trump.
He told POGO that he is not lobbying the administration, only representing Gertler in a legal capacity. “I have been representing Mr. Gertler for a long time. I am a lawyer not a lobbyist,” Dershowitz said in an email. “The forum in which I have to argue this case is within the treasury department [sic]. Therefore I am required to file a technical lobbying form. But I am not engaged in lobbying in any meaningful sense of that word. I am arguing a case in behalf of a client as I have done for half a century.”
He did not address questions asking why he was representing the president for free or whether he’s discussed Gertler’s case with the president. In 2018 he told the New York Times he “would never raise an issue like” his work for Gertler with the president.
Another registered lobbyist who defended the president is Pam Bondi, a former Florida attorney general.
Immediately prior to joining the impeachment defense team as a special government employee, she worked as a lobbyist for Ballard Partners, which is run by Brian Ballard, a top fundraiser for Trump’s presidential campaigns and whom Politico magazine dubbed “The Most Powerful Lobbyist in Trump’s Washington.” As a special government employee, Bondi is bound to some degree by ethics laws and rules, which, if followed, mitigate ethics risks (special government employees are provided more leeway to engage in activities that would typically be off-limits to normal federal employees).
As a lobbyist who began representing clients in January 2019, Bondi represented a wide array of entities in advocacy before the White House. Some highlights from her recent lobbying disclosure forms:
Last year, she lobbied the White House, as well as the State Department and Congress, on behalf of the Kuwait-based KGL Investment Company, whose former top executive was found guilty of embezzling Kuwaiti government funds. In the same corporate family is KGL Logistics, a major U.S. military logistics contractor in the Middle East that, as POGO reported, appears to have sought to evade U.S. sanctions against Iran several years ago.
Also last year, she lobbied the White House and Department of Homeland Security on behalf of the Florida-based private prison company GEO Group, whose detention contracts with Immigration and Customs Enforcement have surged during the Trump administration. The company has sought the administration’s help in defending against lawsuits accusing it of forced labor at its immigration detention centers.
Another of her clients was automaker General Motors, which, as Bloomberg Law detailed, hired Ballard Partners as part of its effort to navigate and influence the administration’s trade wars and to avoid being the focus of the president’s ire on Twitter.
Bondi also lobbied the White House last year for the gambling technology company IGT Global Solutions, which is seeking to influence how the administration interprets and enforces the Wire Act, a law that governs online betting. In early 2019, the Justice Department’s Office of Legal Counsel reversed its previous position on the law to correspond with an expansive interpretation favored by Sheldon Adelson, a casino operator who is one of Trump’s biggest donors and an opponent of online gambling, which competes with his business. A federal court subsequently struck down the Office of Legal Counsel’s new interpretation of the law.
Bondi and another Ballard lobbyist also advised Qatar’s embassy in the U.S. “in matters related to combating human trafficking” as the Middle Eastern country seeks to burnish its international image in advance of the 2022 World Cup.
Bondi did not respond to POGO’s request for comment. The White House has said she is required to recuse herself from any matters that she lobbied on. Ballard continues to represent the clients mentioned above.
Until its recent indictment by the Justice Department for money laundering and violating sanctions against Iran, state-owned Turkish bank Halkbank was another of Ballard’s clients. A November 2018 filing with the Justice Department shows that Ballard reached out multiple times to Jay Sekulow, a private attorney who has represented the president since June 2017 and who plans to continue in this role post-impeachment. The topic of Ballard’s outreach, according to the filing: “U.S.-Turkey relations.”
Even though lobbyists representing the bank have engaged the Trump administration regarding the law enforcement case against Halkbank, Sekulow says his conversations were only about freeing an evangelical pastor held in Turkey and that his involvement was in his capacity as chief counsel of the nonprofit American Center for Law and Justice, which is closely allied with conservative Christian groups and causes. He told Mother Jones he did not speak for Trump when discussing the matter with Ballard.
The details of that episode aside, charitable organizations led by Sekulow may be violating tax law, according to tax experts. The organizations’ advocacy in favor of Trump raises legal concerns. And, in what would be a politically awkward position for the IRS—which has been battered by years of budget cuts and accusations of being biased against conservative organizations—a former high-level IRS official has said the agency should investigate Sekulow’s charities.
Sekulow’s nonprofit American Center for Law and Justice may be pushing the limits of its nonprofit tax status by explicitly defending Trump on its website, a potentially impermissible mixing of Sekulow’s legal advocacy for Trump with the group’s ostensibly charitable mission. “Charities are not supposed to be taking sides in partisan political activities, such as providing legal services to benefit a politician in an impeachment trial,” Daniel Borochoff, president of the American Institute of Philanthropy, told the Associated Press. In legal briefs, the group has also defended the administration’s immigration policies and diversion of military funds to pay for the border wall.
In an email to POGO, Gene Kapp, a spokesperson for Sekulow and the American Center for Law and Justice, said Sekulow’s “work with the President is separate and distinct and is not connected with his work as Chief Counsel of the ACLJ. The ACLJ’s work is separate and distinct from the legal work being done for the President.”
As several investigative news articles have recounted, Sekulow runs a network of religiously oriented nonprofit groups including the American Center for Law and Justice that have steered tens of millions of dollars toward himself, his family members, and his businesses. Marc Owens, a former top IRS official, told the Associated Press this month that the IRS should investigate. “This is an apparent web of organizations that seem to exist to pay compensation to Sekulow and his family members,” said Owens. “That pattern clearly raises questions for those entities that are tax-exempt under Section 501(c)(3) as to whether they’re operating for a public benefit or the private benefit of Jay Sekulow and his family members.”
“The financial arrangements between ACLJ and other entities have been reviewed by outside independent experts and are in compliance with all tax laws,” Kapp told POGO.
The IRS did not respond to a request for comment. But it might tread particularly carefully in any potential investigation of Sekulow’s groups, and not just because of his close relationship with the president. His American Center for Law and Justice represented conservative groups in a successful lawsuit against the IRS for its “heightened scrutiny” of their applications for nonprofit status.
About four months after the president took on Sekulow as his private attorney, the Justice Department settled a lawsuit with Sekulow’s clients, with the IRS expressing “its sincere apology.”
The IRS faces no easy decision between the options of angering someone who just helped the president defeat impeachment or creating the appearance of political favoritism by turning a blind eye to accusations involving that person.
In an era where Americans see government corruption as a top issue, either course carries risks for the White House as well. The president could end up in an ethics quandary based on the many links his legal team has to interests with financial stakes in the administration’s official actions.