NC GOP: Cooper conducted a pay-to-play with pipeline approval

Get your McDonnell playbook and quid pro quo definitions handy. Republicans in North Carolina have demanded a Department of Justice investigation into Democrat Governor Roy Cooper for possible corruption involving an oil pipeline project. Republican leaders allege that Cooper sold permits for the project in exchange for nearly $60 million in contributions to other Cooper efforts on environmental projects (via Gabriel Malor):

Cooper, a Democrat, has been under fire since January regarding his administration’s approval of a key permit that a group of energy companies needed to build a multi-state pipeline to carry natural gas through North Carolina. The same day that approval went through, the companies behind the pipeline agreed to pay $58 million to the governor’s office for work on environmental mitigation and economic development projects. …

The pipeline builders agreed to pay the full $58 million only if the pipeline was approved and built. Cooper’s office has said that makes sense, since the money was to be spent on projects related to the pipeline — both to deal with environmental problems and to help spur business growth in some of the more rural parts of the state it will pass through.

Cooper’s defenders have also pointed to the fact that leaders in Eastern North Carolina’s agriculture industry, including the NC Farm Bureau, say they are the ones who originally asked for the money to be provided. They’ve said they wanted to help local businesses tap into the pipeline. And an official from the Department of Environmental Quality, which approved the pipeline’s permit, told legislators last week that the permit’s approval had nothing to do with the $58 million fund.

But Cooper’s Republican critics don’t buy it. They say they believe Cooper knew the more liberal part of his base would be mad about the pipeline, and that he essentially forced the companies behind it to pay up in order to receive the needed go-ahead to start construction.

Republicans in North Carolina claim this violates the Hobbs Act (18 USC 1951), which prohibits interference with commerce by threats or violence. It does also include extortion as a form of violation and defines it in section (b) (2) as “induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right,” emphasis mine. The argument, or at least as it appears, is that Cooper extorted money out of the energy companies to use under his own office’s discretion (as opposed to the general fund) by threatening to deny the pipeline permits.

That seems like a bit of a stretch, however. Most public-private partnerships are built on tradeoffs, especially on environmental issues. That’s especially true on energy projects which usually have higher-profile environmental impacts and generate significant political blowback regardless of which party controls the government. The language in 18 USC 1951 seems to envision personal enrichment rather than political gain; even “under color of official right” suggests that it speaks of the illegitimate use of public authority for personal gain. The broader reading endorsed by Republican leaders threatens to criminalize a broad swath of political wheeling and dealing that had been seen until now as in the public interest.

Unless the money went into Cooper’s pocket, it’s not the kind of case in which the DoJ would normally take an interest. Republicans argue that Cooper got a personal political benefit by assuaging liberals with the environmental tradeoffs, but that’s not how corruption is normally defined. Even when the corrupt relationships do generate personal benefits, it’s become nearly impossible to prosecute them without a confession or admission. The recent case of Robert Menendez demonstrates how difficult it is to prove corruption, even when a benefactor is showering you with gifts. For that matter, the case of Bob McDonnell proved it too once the Supreme Court ruled on the necessity of establishing official acts that went beyond the norms of office.

One particular issue that might be more relevant is where the money ended up. Cooper arranged the deal so that his office controlled the funds that the energy companies committed. That may not be a violation of the Hobbs Act but it could violate the state constitution if it assigns the power of the purse strictly to the legislature. However, the legislature would have jurisdiction to deal with that issue, not the DoJ — and they already have, seizing the funds in a bill that Cooper wisely declined to veto. The remedy for that kind of violation would be impeachment and removal, not a federal probe.

Will the DoJ take the case? Maybe; it might be worth a shot across the bow to keep other governors in line. Given that Sessions’ team has given up on a much clearer case of personal benefit with Menendez, though, North Carolina’s Republican leaders should prepare themselves for disappointment.

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