David Bernhardt, President Donald Trump's nominee to be the next secretary of the interior, is a bureaucrat with a big reputation.
As the current acting secretary of the powerful United States Department of the Interior, Bernhardt has earned notoriety over the last two years for his administrative savvy and his influence in shaping his agency's relentless attacks on environmental protections. He's been a public voice behind the department's efforts to weaken bedrock laws like the Endangered Species Act, and wrote a memo about limiting the length of studies required by the National Environmental Policy Act.
During his time in office, Bernhardt has become known as a hard-working and whip-smart lawyer with an intimate grasp of Department of the Interior (DOI) arcana. He is a stealthy behind-the-scenes operator, adept at avoiding paper trails and leaving little in the way of a digital footprint. He's a consummate Washington, D.C., insider, a long-time conservative operative, and a well-paid former lobbyist for oil, gas, and other corporate interests across the American West. His critics have called him "the ultimate D.C. swamp creature."
The nomination is a potentially career-defining promotion for a man who has spent much of his adult life moving through the revolving door of government service and K street influence peddling.
Still, despite his reputation, and despite his long residence in the Beltway, there is much that remains unknown about the man. As senators prepare for Bernhardt's confirmation hearing, here are some critical questions they can ask in order to help the American public better understand how he plans to run the DOI.
Pinning Down Bernhardt's Communication Practices
Bernhardt's communications practices are slippery. Though he has spent the last year and a half operating a massive federal agency, journalists, watchdog groups, and other interested parties have struggled to understand his daily activities and his policy priorities because he seems to put little down in writing. In December, he and his colleagues moved to restrict the Freedom of Information Act's reach at the DOI, threatening to further limit public insight into his activities.
"David Bernhardt has created the least transparent Department of the Interior in history," says Aaron Weiss, the deputy director of the Center for Western Priorities, a conservation group. "His calendars are a mystery. He doesn't leave a paper trail. There's no way for the public to tell who he's meeting with and whether he's honoring his ethics pledges. Now, as the spotlight grows even brighter, he's trying to close off access to public documents by changing how Interior handles public records requests, giving political appointees broad power."
When Bernhardt appears under oath before Congress, his interlocutors would do well to force Bernhardt out of the shadows. What is his primary method of communication? Does he mostly make phone calls? Does he conduct his business in writing or in face-to-face meetings? Does he send text messages and emails? If so, on what accounts? Why does he not include detailed information about his activities in his official calendar? How does he arrange his meetings and calls? Where can the public find this information?
This is the sort of crucial baseline information that the American people need to know if they are to gain access to crucial public records and better understand how their public lands are being managed in the Trump era.
Identifying Bernhardt's Inner Circle
Little is known about Bernhardt's key subordinates at the DOI. Who are the agency officials that he speaks with most often? Who are his primary loyalists there? Who did he personally recruit to join the department? Who does he rely on?
According to public records, Bernhardt recommended his close personal friend, Douglas Domenech, to lead the transition team at the DOI during the early days of the Trump administration. Domenech has since been promoted to assistant secretary for insular affairs at the agency, and is tasked with administering territories like the U.S. Virgin Islands, Guam, and American Samoa. There are likely other people at the department—including his deputy Todd Willens and principal deputy solicitor Daniel Jorjani—who Bernhardt counts as friends and confidants.
It would be an incredible boon to both the press and the public if Congress identified the specific cohort of officials that Bernhardt counts on to conduct DOI business. Such information would allow the public to better parse out the power structure at the department, and hold its most influential figures accountable.
Investigating Bernhardt's Outside Influences
The public is mostly in the dark about the outside parties whispering in Bernhardt's ear. As a long-time lobbyist with the powerhouse firm Brownstein Hyatt Farber Schreck, Bernhardt spent many years representing some of the most powerful interests in the American West. His former clients include the Independent Petroleum Association of America, the oil services giant Halliburton, and Westlands Water District, a powerful federal water contractor in California. But Bernhardt's official calendar is devoid of crucial details and so it is difficult to know how much sway industry groups like these have over Bernhardt's policy decisions.
Congress has already started to investigate Bernhardt's outside influences. On February 9th, Representative Raúl Grijalva (D-Arizona) of the House Natural Resources Committee sent Bernhardt a letter contending that his official calendars, which are published regularly on the DOI's website, lack crucial details. The omission of specific information in Bernhardt's official calendars, Grijalva wrote, "raises questions about the intent to hide or manipulate federal records to avoid full disclosure." The letter goes on to ask Bernhardt to provide Congress with fine-grained details about whom he has met with during his tenure at the DOI.
Bernhardt's confirmation hearing will offer an opportunity to probe further. Which specific outside groups does he communicate with most often? How many meetings or calls has he taken with top industry oil and gas trade organizations like the American Petroleum Institute, the Western Energy Alliance, and the National Ocean Industry Association? How many meetings has he taken with federal water contractors and irrigation districts across the West? How many meetings or calls has he taken with top D.C. mining and fossil fuel lobbying firms like Van Ness Feldman, WilmerHale, and Ballard Partners? What were the topics of each meeting?
Determining If Bernhardt Will Continue to Cut Congress Out of Confirming Key Staffers
During the last year and a half, the Trump administration left vacant a wide range of key DOI positions that require Senate approval. Rather than appoint people to top posts at the agency and shepherd them through the Senate confirmation process, Trump and former Secretary Ryan Zinke selected political loyalists to fill these positions on an acting basis, effectively depriving the Senate of its constitutional authority to offer advice and consent on key executive branch appointments. More than six key bureaus at the department do not have Senate-confirmed leaders at the present moment, according to a recent Washington Post report, making it one of the federal agencies with the highest number of key vacancies. Critics of the Trump administration DOI contend that this state of affairs is illegal, and have called for it to end as soon as possible.
"Bernhardt naming people to assume the duties and responsibilities of what by law are presidentially appointed positions clearly violates the Vacancies Reform Act," says Jeff Ruch, the executive director of Public Employees for Environmental Responsibility, a watchdog group. "Such a violation could be the basis for impeachment. Besides that offense, Bernhardt and the Trump White House have acted to circumvent the U.S. Senate's constitutional advice and consent authority."
The Senate can press Bernhardt on this issue. It can probe his authority to fill vacancies at the DOI and obtain a commitment from him that he will encourage Trump to end the practice of cutting Congress out of key personnel decisions.
Figuring Out Bernhardt's Policy Predilections
Finally, the Senate has a prime opportunity to make the American people fully aware of Bernhardt's policy predilections. During his time at the DOI, the agency has used its enormous powers to weaken environmental protections in a manner that benefits the fossil fuel industry and other corporate interests. The department has sought to limit the scope of the National Environmental Policy Act; weaken Endangered Species Act protections; rollback protections at prized national monuments; cancel Obama-era restrictions on oil and gas pollution; open the Atlantic Ocean to offshore oil and gas exploration; sideline crucial scientific research like a federally funded study into the human health impacts of mountaintop removal mining; and clamp down on the Freedom of Information Act, among other activities. It has done all this while key political appointees have taken scores of meetings with oil and gas groups, mining interests, and other corporate concerns.
Will Bernhardt continue these practices? Will he continue the Trump administration's effort to bend public lands management to the will of the fossil fuel powers? Or will he commit to keeping public lands in public hands, and recognize the fact that the American public broadly supports protecting America's lands, wildlife, air, and water?
These are all questions that deserve a good answer from the man who would be our next secretary of the interior. Many mysteries surround David Bernhardt. Come his confirmation hearing, Congress has a crucial opportunity to put an end to them.