Bench Memos

Politics & Policy

New Ethics Questions Surround Vanita Gupta Nomination

Vanita Gupta, president and CEO of The Leadership Conference on Civil & Human Rights, testifies during the Senate Judiciary Committee hearing in Washington, D.C. June 16, 2020. (Tom Williams/Reuters Pool)

Following her contentious appearance before the Senate Judiciary Committee, Republican senators have demanded a second hearing for Vanita Gupta, President Biden’s associate attorney general nominee, citing her misleading statements to senators’ questions.

A letter signed by all eleven Republican members of the Senate Judiciary Committee outlined four key areas with major discrepancies in Gupta’s testimony: her support for eliminating qualified immunity, her support for decriminalizing all drugs, her support for defunding the police, and her record on the death penalty.

Gupta’s dark-money-funded advocacy for far-left positions, and her refusal to explain them, has cast serious doubt on her ability to serve in a top leadership role the Department of Justice. And while the letter centers on her advocacy work in public statements and Senate testimony, another area of Gupta’s advocacy raises new questions: her work as a registered lobbyist, as reported by Jerry Dunleavy in a new bombshell report in the Washington Examiner.

According to her public Open Secrets lobbying profile, as well as publicly available lobbying reports, Vanita Gupta lobbied on behalf of dark money interests at the Leadership Conference for Civil and Human Rights on a host of issues, including: finance, government issues, health issues, housing, immigration, law enforcement and crime, labor, antitrust, workplace issues, civil rights and civil liberties, the District of Columbia, education, telecommunications, welfare, federal budget and appropriations, small business, family, abortion and adoption, and the Constitution.

Here’s where that becomes sticky for Gupta’s nomination: On January 20, President Biden issued an executive order specifically barring former lobbyists and registered agents entering government from participating in any particular matter on which they lobbied within two years of the date of their appointment. On its face, this would disqualify Gupta from working on any policy she previously lobbied for while at the dark-money funded Leadership Conference on Civil and Human Rights.

Norm Eisen, President Obama’s former “ethics czar” from 2009–2010, praised Biden’s executive order, explaining that Biden’s policy focuses on “reverse lobbying,” imposing limits on appointees coming into government — and not just those who leave it.  In Eisen’s view, “letting the fox into the henhouse he just stalked is simply too dangerous.”

As Gupta lobbied on just about every single issue that would fall under her purview at the Department of Justice, it would seem the Biden administration is in a bit of a “fox in the henhouse” predicament, in the words of Czar Eisen.

The executive order does provide the Biden administration an out. The order allows the “Director of the Office of Management and Budget, in consultation with the Counsel to the President,” to grant an appointee a written waiver of the restrictions if it is in the public interest. For a “public interest” waiver, the OMB director will consider the government’s needs for the individual’s services, the uniqueness of his or her qualifications, and the scope of the individual’s prior lobbying activities, including whether they were de minimus or done on behalf of non-profit organizations. We should anticipate the Biden administration will argue that Gupta qualifies for such a waiver given the nonprofit status of the Leadership Conference — a left-wing dark-money organization that does not disclose its donors.

But if the Biden ethics policy doesn’t apply to an extremist nominee who has registered as a lobbyist on virtually every hot-button issue in the last decade, then to whom does it apply? If an appointee has run a dark-money funded “strategic hub of the resistance” from the Leadership Conference, lobbying on virtually every policy issue and piece of legislation that she would oversee at the Department of Justice, why even have said ethics policy?

Vanita Gupta has been nominated to a position of public trust but has refused to provide the Senate with answers on her past positions, current ideology, or her future plans. Her evasiveness has made a mockery of the confirmation process.

The Senate is expected to believe that even though Gupta made extreme statements in the past, she has changed or “evolved” on controversial issues. Senator Cornyn aptly called this a case of “confirmation conversion” — saying what Gupta believed Senators wanted to hear to confirm her, regardless of her actual beliefs.

With so many unanswered questions about Vanita Gupta’s nomination, a second hearing is more than appropriate.

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