It was less than three months after Ileana Ros-Lehtinen retired from the House of Representatives, where she once chaired the powerful House Foreign Affairs Committee, when the Florida Republican’s name appeared atop a team of lobbyists hired by a foreign government to press its case in Washington.
The K Street powerhouse Akin Gump Strauss Hauer & Feld LLP had represented the Hong Kong Trade Development Council since 2012, according to foreign-agent filings with the Department of Justice. But on April 1, 2019, the firm inked an updated version of its retainer agreement. Under the new contract, Ros-Lehtinen, who joined Akin Gump just days after her retirement from Congress in January, would be a “team leader” of the group of consultants tasked with the account.
That struck ethics experts as problematic—and potentially illegal. Under federal law, former members of Congress are barred for a year after leaving office from representing a foreign government for the purposes of influencing U.S. policymakers or assisting in that representation in any way.
Akin Gump insisted the former congresswoman’s work is fully aboveboard. “Ms. Ros-Lehtinen was aware of her restrictions, which expired on January 3, 2020, and abided by them,” Akin Gump spokesman Ben Harris said in an emailed statement.
Pressed for additional details, Harris said Ros-Lehtinen didn’t actually do anything for the HKTDA last year, despite being listed in the firm’s own filings with DOJ as a co-leader of the Akin Gump team working on the account. “Ms. Ros-Lehtinen did not engage in any activities for this client before the expiration of her restrictions,” Harris said.
Ros-Lehtinen is now free of the restrictions that encumbered her first year on K Street and, accordingly, her firm has put her to work in a more official capacity. A few weeks after that cooling-off period expired this month, Ros-Lehtinen registered as a lobbyist for the government of the United Arab Emirates, another Akin Gump client. The firm told the DOJ that Ros-Lehtinen will “provide outreach to U.S. officials and counsel on policy issues...including, among others: export controls and sanctions, trade policies, human rights, foreign and defense policies, foreign media registration, and strengthening trilateral relations and regional security.”
But it’s Ros-Lehtinen’s role during that cooling-off period that has caught the attention of legal experts, for the degree to which it shows how Washington’s influence industry has tried to quickly put former U.S. officials to work on behalf of their foreign government clients in spite of laws designed to prevent exactly that.
“It goes beyond an ethics violation,” said Brendan Fischer, the director of federal reforms at the Campaign Legal Center. The law at issue, he said, “carries potential criminal penalties.”
The federal law at issue makes it a crime for any former member of Congress within one year of leaving office to “represent” a foreign government “before any officer or employee of any department or agency of the United States with the intent to influence a decision of such officer or employee in carrying out his or her official duties.”
But the law also prohibits a far broader class: any such former legislator who “aids or advises” a foreign government seeking “to influence a decision of any officer or employee of any department or agency of the United States, in carrying out his or her official duties.”
In other words, former members of Congress are not just prohibited during this cooling-off period from lobbying or doing public relations for foreign governments; they’re also barred from doing pretty much anything else that helps their firms’ foreign-government clients influence U.S. policy or policymakers.
“The plain meaning of ‘aid’... is expansive: it means ‘to give help or support to’ someone,” wrote the U.S. Office of Special Counsel, citing the Webster’s dictionary definition of the word, in a 2008 legal opinion. “Consistent with this definition, [the Office of Government Ethics] states that a former employee ‘aids or advises’ a foreign entity ‘when he assists the entity other than by making… a communication or appearance’ on behalf of that entity to or before a government body.”
OGE provided some examples in its explanation of what is barred under this federal law in a 2004 memo to federal agency ethics officials. Prohibited activities include: “‘behind the scenes’ assistance to a foreign entity” such as “drafting a proposed communication to an agency, advising on an appearance before a department, or consulting on other strategies designed to persuade departmental or agency decisionmakers to take certain action.”
In other words, the definition of “aids and advises” here is open-ended and extremely broad in terms of the types of activity it prohibits.
That said, there are a few criteria that need to be satisfied for the prohibitions in the law to actually bind former members of Congress during the cooling-off period. First and foremost, the client needs to be a foreign government, not just a foreign political party or another entity that happens to fall within the scope of reporting requirements under the Foreign Agents Registration Act.
The HKTDA—the Akin Gump client at issue—describes itself as “a statutory body established in 1966 to promote, assist and develop Hong Kong's trade.”
It was created by political decree, but is it an actual government body? According to Akin Gump, it is. When the firm first signed the HKTDA as a client in 2012, it checked the box in FARA registration paperwork indicating that the group is a “foreign government.”
The next prong of the legal test has to do with the firm’s actual activities on its client’s behalf. Is it attempting “to influence a decision of any officer or employee of any department or agency of the United States”?
Again, the language in the firm’s FARA filings leaves little doubt that it is. In the first six months of 2019, Akin Gump told DOJ that it “counseled Hong Kong Trade Development Council on U.S. congressional matters. This included monitoring, compiling information, and analyzing the potential and legal ramifications of legislation.”
Vic Fazio, the former Democratic congressman who, with Ros-Lehtinen, is the co-leader of Akin Gump’s HKTDA team, told DOJ when he registered to represent the HKTDA in 2012 that he would “provide outreach to US Government officials regarding Hong Kong's economic and trade interests.” Fazio reported contacting a host of U.S. government officials on the group’s behalf in the years since.
So the team of consultants that Ros-Lehtinen has been leading, according to Akin Gump’s own DOJ filings, since last spring is working on behalf of a foreign government to influence U.S. policymakers. The only other question, then, is whether Ros-Lehninen “aids or advises” that work.
Akin Gump appeared to anticipate questions about her role and whether it would run afoul of federal law. “Ms. Ros-Lehtinen is subject to restrictions on her activities for one year after leaving Congress,” the firm wrote in its engagement letter in April. “Therefore, Ms. Ros-Lehtinen will abstain from providing strategic advice or making communications on behalf of the [HK]TDC until her restrictions are no longer in effect.”
But then the firm added this line: “Of course, in the meantime she will be available to provide her expertise on issues of concern.”
Lending expertise in that capacity appears to fall squarely within the type of activity that the cooling-off law explicitly prohibits, according to Fischer.
“It appears that almost the entirety of Akin's representation of HKTDC is aimed at directly or indirectly influencing government officials,” Fischer said in an email. “So it would appear that any meaningful ‘expertise’ that Ros-Lehtinen could provide under the contract would very likely constitute ‘behind the scenes’ support for influencing government officials on behalf of a foreign entity, in violation of the law.”
Since 2018, Akin Gump has reported contacting a handful of members of Congress on the HKTDC’s behalf, including Rep. Jim McGovern (D-MA), a sponsor of legislation prohibiting the export of riot-control weapons and technology to the Hong Kong police force, which has cracked down on pro-democracy protests there. Another target of the firm’s lobbying efforts, Rep. Ben McAdams (D-UT), is an outspoken supporter of that bill and similar legislation.
For that work, the firm has been paid between $23,000 and $35,000 per month, according to FARA filings.
Asked about Akin Gump’s claim that Ros-Lehtinen didn’t actually do any work for the HKTDA in the nine months after it listed her as a team lead, Fischer sounded incredulous.
“If only one of those employees [Fazio and Ros-Lehtinen] is providing any services under the contract, then is Hong Kong getting ripped off?” Fischer asked. “If Ros-Lehtinen is not going to directly or indirectly support the lobbying services promised to the client, then why is she on the contract at all?”
It is fairly common for former members of Congress to join FARA-registered firms during their cooling-off period. It’s far less common for them to show up in the firms’ actual FARA filings. But Ros-Lehtinen isn’t the only case.
Florida Republican Jeff Miller retired from Congress in January 2017, and that July he officially registered as a foreign agent for the government of Qatar via his new employer, lobbying firm McDermott Will & Emery. When The Daily Beast noted that registration, and asked Miller about it, he insisted he’d stayed on the right side of the law.
“I made no legislative or Executive Branch contacts on behalf of Qatar during my one year ‘cooling off’ period,” Miller said. “After my one year restriction expired, in 2018, I did make such contacts.”
But as the law makes clear, “contacts” aren’t the only prohibited activities for recently departed legislators such as Miller. The Campaign Legal Center, Fischer’s group, noted that as well, and filed a complaint with DOJ asking for an investigation into whether Miller’s work for Qatar violated federal law. It’s not clear whether that investigation ever took place.
“It is bad enough when former politicians leverage their public service for foreign lobbying clients,” CLC said at the time. “But it is even worse when a politician ignores the law’s minimal protections against influence-peddling and begins working on a foreign government’s behalf shortly after leaving office.”
