More than a month after Jeff Sessions was sworn in as attorney general, President Trump's Department of Justice decided to pass on prosecuting the Obama-era head of the U.S. Chemical Safety Board for allegedly lying to a congressional committee.
At issue were two House Oversight and Government Reform Committee hearings where former CSB Chairman Rafael Moure-Eraso "contradicted other information provided to the committee," the U.S. EPA inspector general said in a closing report obtained by E&E News under the Freedom of Information Act.
In July 2015, the Oversight panel's bipartisan leadership urged DOJ to investigate whether Moure-Eraso should be prosecuted for making false statements to Congress, the report says.
The next month, two agents with the EPA IG presented "investigative findings" related to the former CSB chairman's referral to Assistant U.S. Attorney Jonathan Hooks in the Washington office as well as a trial attorney — his or her name is redacted — in Justice's Public Integrity Section.
The criminal referral then sat at Justice and the U.S. Attorney's Office for the District of Columbia for more than a year and half — spanning both the Obama and Trump administrations.
On March 16 of last year, DOJ's Public Integrity Section ultimately declined to prosecute the case, and the U.S. attorney's office agreed with that assessment, the report says.
Moure-Eraso denies he committed perjury before the congressional panel. In written responses to questions from E&E News, the former CSB chairman said, "I absolutely believe that I never made false statements in my oral testimony to the House Oversight Committee."
Sessions has been leading DOJ since Feb. 9, 2017, although at that point he was still waiting for additional political appointees to join him or be nominated.
Six days before DOJ passed on the Moure-Eraso prosecution, Sessions requested the resignation of 46 U.S. attorneys.
Channing Phillips, then the acting U.S. attorney for the District of Columbia, was not asked to leave office. Phillips was nominated for the job by President Obama in October 2015 but was never confirmed by the Senate.
In June, Trump nominated Phillips' successor, Jessie Liu.
It's not clear if officials at Justice or the U.S. attorney's office shared the IG's findings with Trump appointees. Representatives for those agencies declined to answer E&E News' questions about the investigation into perjury allegations against Moure-Eraso.
"We typically do not confirm, deny or comment on investigations and have no comment on this particular matter," said Bill Miller, a spokesman for the U.S. Attorney's Office for the District of Columbia.
Wyn Hornbuckle, a DOJ spokesman, said the department would decline to comment for this story.
EPA IG spokesman Jeff Lagda told E&E News the agency watchdog had referred the case to Justice and the U.S. attorney for "prosecutorial review," where it was later denied.
Basis for referral
While the IG's redacted report doesn't offer much detail about the precise nature of the perjury charges DOJ declined to pursue, former Oversight Chairman Jason Chaffetz (R-Utah) and ranking member Elijah Cummings (D-Md.) outlined the potential case in a July 2015 letter to then-Attorney General Loretta Lynch urging Justice to investigate.
The lawmakers claimed that Moure-Eraso had "committed perjury and made knowingly false statements" during their panel's investigation of his agency. They said there were several instances in which Moure-Eraso's testimony from two committee hearings — one in June 2014, the other in March 2015 — had been contradicted by other information received by the committee.
Some of those instances included his statements on who oversaw a release of emails to the EPA IG as well as how long he had been using personal email for work at CSB, which didn't align with sworn statements from his subordinates as well as other documented evidence.
It is not common for lawmakers to make a referral to DOJ on perjury charges against a hearing witness. A Democratic aide for the Oversight panel told E&E News said the committee "has historically, on a bipartisan basis, taken it very seriously when witnesses are not truthful to the committee."
The referral on Moure-Eraso was made due to "the inconsistencies in his testimony," but his resignation was a step toward improving the culture at CSB, according to the Democratic aide.
"We have no reason to second-guess DOJ's decision at this point," said the Democratic aide regarding Moure-Eraso's not being prosecuted.
A spokeswoman for House Oversight and Government Reform Chairman Trey Gowdy (R-S.C.) declined to comment for this story.
Federal prosecutors, however, were aware of issues with Moure-Eraso's testimony even before Chaffetz and Cummings' July 2015 letter. Earlier that year, EPA IG Arthur Elkins testified on Capitol Hill that his office had notified the U.S. attorney that the CSB head might have committed perjury (E&E News PM, April 14, 2015).
Moure-Eraso had already left the agency at that point. After increasing scrutiny from Congress for allegations of whistleblower retaliation and mismanagement at CSB, he announced his resignation a few weeks before Elkins' testimony in March 2015 (E&E Daily, March 27, 2015).
Once DOJ declined to pursue the perjury charges, the IG determined that there were "no further investigative steps" to take, according to the report. In addition, there could be no administrative penalties issued against Moure-Eraso, since he was no longer a federal employee. The IG recommended to close its case.
The controversy over Moure-Eraso's tenure at CSB garnered attention for the small independent agency that investigates industrial chemical accidents. The Trump administration has targeted the safety board for elimination, proposing zero funds for CSB in its fiscal 2018 budget plan, which it is expected to do so again with its fiscal 2019 proposal (Greenwire, Feb. 2).
A CSB spokeswoman declined to comment when contacted for this story.
In his written responses, Moure-Eraso acknowledged "trivial discrepancies" in oral testimony he gave the committee. But he went on to say DOJ's decision to pass on prosecution "is a recognition of the frivolous character of the EPA IG claims."
Moure-Eraso, who is currently a professor emeritus with the University of Massachusetts, Lowell, went on to claim that DOJ impaneled a grand jury to consider the charges against him before deciding "that the referral for prosecution had no merit."
"DOJ never informed me of the Grand Jury Investigation or their decision to close the case," Moure-Eraso said.
Both Hornbuckle with DOJ and Miller with the U.S. attorney's office declined to comment when asked if a grand jury was used to weigh the strength of evidence against Moure-Eraso.
'Perjury prosecutions are difficult'
Bennett Gershman, a former prosecutor in the Manhattan district attorney’s office who now teaches at Pace Law School, said he wasn't surprised DOJ passed on the case.
"Perjury prosecutions are difficult," he said. "You have to show, one, that the statement that was given under oath was false. Two, you have to show that it was made with the intention of misleading the questioner."
He added that "if there is any ambiguity, that's going to be resolved in favor of the defendant."
Moure-Eraso claimed the perjury allegations were politically motivated, citing "anti-regulatory forces" at work.
"I believe the aim of the call for an investigation of the Head of the CSB was to discredit and weaken CSB safety recommendations to improve preventive regulations and industry practices opposed by industry groups and their friendly congressmen," Moure-Eraso said.
Gershman said it's more likely that lawmakers had it in for him because of his mismanagement of CSB.
Referrals to DOJ from Congress are "infrequent, very infrequent," Gershman said. "But given Mr. Moure-Eraso's history and background in the agency, he obviously caused quite a bit of controversy. He was somebody who was being targeted for incompetence, for inefficiency, for maybe misconduct, so he would be somebody that might be a prime candidate for that kind of referral."
He added, "Members of [the] Oversight Committee felt he wasn't doing a very good job and wanted to get rid of him. ... [I]n that context, the answers that he gave might look more likely as answers that were perjurious and should be investigated by the federal prosecutor."
Gershman also sees the move by Sessions' DOJ as a possible sign that the agency isn't succumbing to political pressure.
"Maybe people shouldn't assume that the Department of Justice is as corrupt as President Trump thinks it is and that the FBI and all these law enforcement agencies are all biased," he said. "Maybe there are people in the Department of Justice who do a good job and who look at the cases and make decisions based on the facts, based on the law, and try to go straight down the middle."
Moure-Eraso said he only "became aware — by chance — that the case has been closed by an obscure reference in the 'EPA IG Semiannual Report to Congress.'"
The case's closing report, the former CSB chairman noted, was only referenced toward the very end of the document.
"You really must search hard to find the announcement," Moure-Eraso said.
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