Why Does it Take Five Years to Find out that Government Officials Did the Right Thing?

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Five years after filing a Freedom of Information Act (FOIA) request about the role played by certain lawyers in the U.S. Government’s amicus brief in Kiobel v. Royal Dutch Petroleum (Shell), we finally received a response from the Department of Justice (DOJ) showing Principal Deputy Solicitor General Sri Srinavasan, who had previously represented corporations in similar cases, properly recused himself from working on the brief. Although the right outcome, and a welcome revelation, transparency about whether the top U.S. lawyers are putting the interests of the United States above the interests of their former corporate clients shouldn’t be so hard to come by.

EarthRights International (ERI) raised questions in 2012 after the government filed a troubling brief supporting Shell in the lawsuit over the oil company’s responsibility for human rights abuses in Nigeria. Although the government had filed an amicus brief in 2011 supporting the victims, the second government brief changed course, elevating corporate interests over the rights of ordinary people. What changed?

The U.S. government’s interests are represented at the Supreme Court by the Solicitor General’s office, and it was hard for us to ignore that Srinivasan had recently become the No. 2 lawyer in that office – the Principal Deputy, second only to the Solicitor General. Immediately before this, Srinivasan was representing corporations being sued for human rights abuses, and had argued many of the same positions that Shell raised in the Kiobel case.

We wanted to find out what happened, so we filed FOIA requests with DOJ and the State Department seeking communications showing who was involved in the decision-making surrounding the Kiobel brief, and specifically whether Srinivasan had influenced the government’s changed position in Kiobel, or whether he was recused. Srinivasan’s former corporate clients, like ExxonMobil, stood to benefit (and did benefit) from the government’s position in the second brief, and his involvement would have been a serious conflict of interest.

In 2013, with our FOIA requests still unanswered, Srinivasan was nominated and confirmed to the D.C. Circuit Court of Appeals, widely seen as the second-most important federal court in the country. ERI opposed that nomination, raising concerns about his record – which at that point demonstrated a commitment to corporate interests – and highlighting the need for transparency around his role in the Kiobel brief.

On the bench, Judge Srinivasan has demonstrated he is a fair and thoughtful jurist who is not held captive by the interests of powerful corporations. When he was considered a potential nominee for the U.S. Supreme Court following Justice Scalia’s death last year, we reassessed our evaluation of him. While we continued to believe that the Senate should receive full information about whether his work as a government lawyer may have benefited his former corporate clients, didn’t oppose his nomination.

As it turns out, Srinivasan did the right thing on the Kiobel case. The DOJ documents reveal no improper conduct; they show that he was in fact recused from the Kiobel decisions, as he should have been. But why did it take so long to confirm this?

Transparency about the extent to which corporate interests are motivating government officials is critical to ensuring public trust in government. Although the documents here confirm that there was no impropriety, it still took five years and multiple FOIA requests to get that answer. Imagine if the government officials involved actually had something to hide, and were trying to cover it up. There seems little hope that the FOIA process would really provide meaningful – and timely – transparency where it would reveal misconduct.

Documents:
foia_kiobel

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