Billionaire and presidential friend Carl Icahn threw the ethanol industry into turmoil last week when he tried to broker changes to a federal biofuel program that would benefit his oil refinery business.
But he also potentially exposed himself to conflict-of-interest laws by appearing to act as a de facto federal employee, several government ethics experts told POLITICO.
Whether Icahn faces legal jeopardy depends partly on the nature of his relationship with President Donald Trump, who named him a “special adviser to the president for regulatory reform” late last year — while insisting he wouldn’t be a federal employee. It also turns on exactly what Icahn told a leading ethanol advocate last week while trying to strike a bargain on a federal mandate requiring oil refiners to blend biofuels into gasoline.
Icahn has been pushing to make fuel wholesalers responsible for complying with the mandate while lifting the burden from refiners such as his company CVR Refining. Bob Dinneen, who heads a leading ethanol group called the Renewable Fuels Association, said last week that “a member of the administration” had told him that the change was imminent. News reports and a member of RFA’s board subsequently identified that official as Icahn.
The revelation tanked the market for ethanol credits and prompted others in the biofuels industry to issue a rebuke to what they saw as a major threat. And it could create legal jeopardy for Icahn, if indeed he tried to influence policies that affect his bottom line while acting as a member of the Trump administration, according to ethics experts interviewed by POLITICO.
Depending on his exact role with the administration, ethics experts said Icahn could be considered a “special government employee,” a category that covers people who perform temporary duties for the federal government with or without pay. Such employees can face criminal liability if they participate in matters in which they have a financial interest.
“What Icahn is doing is cutting deals on behalf of the U.S. government,” said Richard Painter, a critic of the Trump administration’s ethical practices who served as chief ethics lawyer in the George W. Bush administration.
Painter, now a law professor at the University of Minnesota, added: “If other people perceive you as having authority to act on behalf of the U.S. government, you pick up the phone and say you’re negotiating a deal and people believe you, I think that’s a factor. If they’ve given you authority and other people believe you had that authority, you’re clearly an employee.”
Former Obama administration ethics chief Norm Eisen, another Trump critic, said that Icahn’s negotiation with Dinneen could be a problem for Icahn.
“He seems more like a special government employee than an informal adviser, and if so, that means among other things, that conflict laws regulate his behavior,” Eisen said. “The administration cannot avoid that simply by asserting it is not so.”
Icahn and the White House both insist he is a private citizen who has no official role with the administration — even though his company Icahn Enterprises listed him as a “special adviser to President Donald J. Trump” in a March filing with the SEC.
Icahn is “simply a private citizen,” the White House has said, pointing to a December news release that said Icahn would not be a federal employee. On Wednesday, the 80-year-old mogul told CNNMoney that conflict-of-interest accusations involving his ethanol discussions are “completely ridiculous. I don’t talk to Donald that often.”
Jesse Lynn, general counsel of Icahn Enterprises, said the phone call to Dinneen “doesn’t change anything.”
“Carl has no position with the government,” Lynn said. “He’s never negotiated on behalf of the government.”
Even so, the watchdog group Public Citizen filed a complaint with Congress on Wednesday accusing Icahn of violating lobbyist-disclosure laws, citing reports that Icahn had pressed White House officials on his proposed changes to the ethanol rules. Icahn denounced the complaint as “fake news” in an op-ed in The Hill, writing that “a more worthwhile investigation would seek to uncover the dark forces behind this witch hunt.”
Public Citizen fired back late Wednesday.
“The fact that Carl Icahn continues to believe that there’s nothing wrong with his inherent conflict of interest is stunning,” Public Citizen energy director Tyson Slocum said in a statement. He added: “It is wildly inappropriate for someone with a significant vested interest in the repeal of a regulation to be appointed as an adviser to the president and then to offer advice on the fate of that regulation.”
Icahn’s potential ethical problems would even be more serious if his status as a Trump adviser, combined with discussion with Dinneen, rendered him a special government employee.
The Office of Government Ethics says Congress created the category of “special” employee in 1962 to allow experts to work within the government on a temporary basis without having to sell all their holdings. Agencies are empowered to provide waivers to “resolve” conflict-of-interest laws related to the employee’s work.
The OGE’s website doesn’t address what exactly determines when someone’s status changes from volunteer to de facto government employee, and it did not respond to questions. But Eisen pointed to an Office of Legal Counsel opinion from 1977 indicating that a volunteer doing work for the federal government could become an employee without meaning to, and Painter was aware of more recent examples, including one involving a Goldman Sachs banker during the 2008 financial crisis.
Icahn isn’t Trump’s only unpaid special adviser: former mayor of New York Rudy Giuliani is a special adviser to the president on cybersecurity.
“When someone perceives you as a member of the administration, that can be a problem,” a government ethics attorney told POLITICO, asking not to be named because he is actively practicing in this area. “With respect to Icahn and with respect to Giuliani, this administration has tried to make sure these people are not employees. But wishing that does not make it so.”
Jan Baran, an ethics attorney and partner at the law firm Wiley Rein, said Icahn would have had to do much more than make a few phone calls before he became a de facto special employee.
“The fact that President Trump gave Mr. Icahn some sort of title is not significant in the sense of government position,” Baran said. “He could just as easily have called him my ‘Best Personal Adviser.’ He is what he is, but he’s still in the private sector, he’s not being compensated, he’s not given any of the perquisites or privileges of White House employees.”
Whatever Icahn’s role, Trump’s election has been good for CVR, which is 82-percent owned by Icahn: Its stock has rallied 65 percent since Nov. 9. Since Icahn and refining giant Valero Energy have prodded the White House into discussions about removing their obligation under the biofuel program, prices for the renewable credits under the Renewable Fuel Standard, which the companies must buy to prove they are complying with the law, have sunk on expectations the program could be altered.
The oil industry has long fought to kill or overhaul the ethanol program, which requires refineries to either blend ethanol with their fuel or buy credits. Icahn has been one of the sharpest critics, calling the market for its credits “the mother of all short squeezes” that is costing his company hundreds of millions of dollars.
Icahn, Valero and a few other refiners are pushing for the change against the combined forces of the American Petroleum Institute, ethanol producers, truckers and railroad associations. While those groups are split on whether the program should be scrapped or strengthened, none supports Icahn’s preferred change.
Icahn’s relationship with the White House continues to confuse to many observers. Six Democratic senators wrote to the White House last month asking for clarification on exactly what Icahn was doing.
And it is RFA’s Dinneen, who could be a key witness for determining Icahn’s status.
Dinneen, who declined to comment for this story, roiled the ethanol world last month when he told POLITICO that he had received a call from someone in the administration, who news reports and Raymond Defenbaugh, a member of Dinneen’s board and CEO of ethanol producer Big River Resources, would later confirm to have been Icahn. The caller told Dinneen an executive order changing the biofuel program was coming, and if Dinneen supported the order, he might get some concessions for his members.
“Despite our continued opposition to the move, we were told the executive order was not negotiable,” Dinneen’s group said later in a statement.
When the news broke, the ethanol world went ballistic over what many perceived as a betrayal by Dinneen’s group to cut a deal to provide political cover for a regulatory change ethanol producers oppose. Soon after, Fuels America, a coalition of ethanol groups, booted RFA from it’s membership.
Ethanol groups have long known they would have to face off with Icahn in the Trump administration, but Brooke Coleman, head of the Advanced Biofuels Business Council, another pro-ethanol group, said he hadn’t expected Icahn to be so blatant in “trying to spin that ‘What’s good for my portfolio is good for America.'”
“This is the prime example, a case-in-point for why people try not to blur the lines between public servants and lobbyists,” said Coleman, “Even with the White House saying [an executive order] wasn’t going to happen, there was a presumption that because Carl Icahn had this role that he knew something we didn’t know. When you can move markets on rumor and presumption of knowledge, that’s where ethics laws tend to focus.”
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