With Tactics Honed on Climate Change, Ken Cuccinelli Attracts New Controversy at Homeland Security

A whistleblower’s complaint alleges he ordered intelligence reports altered to downplay the threat of white supremacists and highlight 'antifa.'

Sep 11, 2020
Ken Cuccinelli testifies during a House Committee on Homeland Security hearing in the Cannon House Office Building on Capitol Hill March 11, 2020 in Washington, D.C. Credit: Drew Angerer/Getty Images

Ken Cuccinelli testifies during a House Committee on Homeland Security hearing in the Cannon House Office Building on Capitol Hill March 11, 2020 in Washington, D.C. Credit: Drew Angerer/Getty Images

In a whistleblower's complaint over pressures at the Department of Homeland Security to alter intelligence assessments for political purposes, one name emerges that is familiar to those who have followed the war over climate science: Ken Cuccinelli.

The allegations against Cuccinelli, the acting No. 2 official at the agency, haven't gotten as much attention as those leveled at his boss, Acting Secretary Chad Wolf, who is accused of seeking to bury intelligence on Russian interference in the 2020 election.

But Cuccinelli also sought to shape intelligence assessments in his own areas of focus: law enforcement and immigration, according to the complaint by Brian Murphy, the former head of the department's intelligence branch. 

Amid the protests over racial injustice that turned violent this year, Murphy charged that Cuccinelli ordered the alteration of intelligence assessments to downplay the threat of white supremacists and play up the danger of left-wing "antifa" and "anarchist" groups to align with the public statements of President Donald Trump. And last year, Cuccinelli sought to fire "deep state" analysts he said were producing country reports on Guatemala, Honduras and El Salvador that he felt could undermine Trump's policy of restricting asylum, Murphy charges.

For Cuccinelli, it is the latest chapter in a career in which law enforcement activity and right-wing political aims sometimes became indistinguishable.

When Cuccinelli was Virginia Attorney General a decade ago, he pursued an extraordinary legal campaign against one of the nation's top climate scientists, in essence accusing him of fraud for his research tracking the rise in global temperatures. 

At the same time, Cuccinelli, a Tea Party Republican, was at the forefront of a court challenge to the Obama administration's finding that greenhouse gases endangered human health and the environment.

Cuccinelli lost both of those battles, but he won himself a place in the center of Trump's culture wars.

At Homeland Security, he served as a key lieutenant in the Trump administration's deployment of camouflage-clad federal agents to put down protests in Portland, Oregon, this summer, and the standing threat to send them elsewhere.

Federal Police clash with protesters in front of the Mark O. Hatfield federal courthouse in downtown Portland as the city experiences another night of unrest on July 25, 2020.

Federal Police clash with protesters in front of the Mark O. Hatfield federal courthouse in downtown Portland as the city experiences another night of unrest on July 25, 2020. Credit: Photo by Spencer Platt/Getty Images

Before a Congressional committee, Cuccinelli said that state and local officials allowed the situation to get out of control: the federal building in Portland, he said, "wouldn't be there" if DHS forces hadn't stepped in. Gov. Kate Brown and other Oregon officials said the federal officers only inflamed a difficult situation and increased violence.

The Trump administration now faces a number of lawsuits and a Congressional inquiry over the DHS show of force. But the confrontation created images that bolstered the law-and-order message that has become integral to Trump's re-election campaign.

DHS did not respond to repeated requests for comment from Cuccinelli for this story.

Those who have watched his rise say that if Trump was looking for a law enforcer who knew how to use his office to deliver a political message, he scarcely could have found a more experienced hand than Cuccinelli. 

"What you're seeing on the national stage is a pattern very similar to his time in Virginia politics," said Stephen Farnsworth, a political science professor and director of the Center for Leadership and Media Studies at the University of Mary Washington in Fredericksburg, Virginia.

 "His strategy was to take very conservative legal positions and wait and see if the courts agreed with him," Farnsworth said. "And while his track record was not particularly good, it built him a base of support among Republican conservatives and helped make him a national figure on Fox News."

Not everything worked out so well for Cuccinelli. He lost his bid to be Virginia Governor, and he is so disliked in his own party that Senate Majority Leader Mitch McConnell has made clear that Cuccinelli has no chance of being confirmed by the Senate for any post at DHS.

But as one of Trump's many "acting" appointees, now in his second post at DHS, Cuccinelli has a new opportunity to test the use of hard-line state authority to enforce hard-right political views. And he's doing so with strong support from conservatives like Texas Republican Sen. Ted Cruz, whom Cuccinelli advised during his presidential run. "Sen. Cruz believes Ken Cuccinelli is a principled, conservative fighter who has worked hard at the Department of Homeland Security to keep Americans safe," said a spokesman for the Senator in an email. "The American people and this administration have been well served by Ken's commitment to the Constitution and the rule of law." 

If nothing else, Cuccinelli's part in this summer's street conflicts shows how the fight over climate change proved to be a dress rehearsal for the wider culture wars that have gripped American politics.

Into the Culture Wars

Cuccinelli rode into his post as Virginia's top law enforcer in 2009, on a Republican election wave in the state that many analysts saw as a reaction to the economic crisis and the GOP distress over the 2008 presidential election.

"Ken Cuccinelli was elected by Barack Obama," retired Republican president pro tempore of the Virginia Senate, John Chichester, was quoted as saying in a 2011 profile of Cuccinelli in Washingtonian magazine.

A former patent lawyer in what was once a Republican enclave in Northern Virginia, Cuccinelli had served seven years in the state Senate. At times, he defied more moderate GOP colleagues by advancing hard-line stances against abortion, same-sex marriage, and illegal immigration (he once sponsored legislation that would have made it legal to fire employees who spoke Spanish at work). He brought the same agenda and style to the attorney general's office. Within weeks, his fellow Republican, newly elected Gov. Bob McDonnell, was distancing himself from a directive Cuccinelli had sent to state colleges and universities, urging them to rescind policies banning discrimination based on sexual orientation.

Cuccinelli was also caught on audio tape discussing legal strategies for challenging Obama's citizenship—a conversation that he quickly clarified was hypothetical, but that in retrospect appears to reveal a philosophical alignment with the president he would one day serve.

But it was over climate change that Cuccinelli would make his greatest mark.

He put Virginia out in front—along with Texas and Alabama—as one of the first states to sue the Obama administration over the Environmental Protection Agency's endangerment finding on greenhouse gases.

Cuccinelli's challenge to the finding marked a policy whipsaw for the state, which is experiencing the highest rates of sea level rise along the Atlantic seaboard. The previous governor, Democrat Tim Kaine, now a U.S. Senator, had established one of the first state commissions on climate change. Now Cuccinelli was arguing on Virginia's behalf that there was insufficient scientific evidence that climate change was a risk.

In May 2010, Cuccinelli lobbed a legal grenade into the climate science war. He issued a civil investigative demand—the equivalent of a subpoena—against his alma mater, the University of Virginia, seeking a broad array of records, emails and documents involving atmospheric scientist Michael Mann, who had been a professor there from 1999 to 2005, and 40 other climate scientists.

Mann, who by then had moved to Pennsylvania State University to direct its Earth System Science Center, had been a target of climate deniers because of his "hockey stick" graph, which plotted the dramatic surge in global temperatures after 1900 and had become an iconic illustration of humanity's influence on the atmosphere. In 2009, hackers retrieved and posted on the Internet private emails of Mann and other climate scientists, causing an international stir that climate deniers dubbed "Climategate."

By the time Cuccinelli launched his investigation, three inquiries had concluded that the emails showed no wrongdoing by the scientists (five more investigations would reach the same conclusion.) But Cuccinelli, invoking his power under the Virginia Fraud Against Taxpayers Act, said the hacked correspondence gave him a basis to investigate wrongdoing and possible manipulation of results related to Mann's research grants.

"Our Act, frankly, just requires honesty," he told The Washington Post at the time.

The case provoked a widespread outcry over the threat to academic freedom that would result if scientists faced law enforcement investigations for research that did not comport with the political views of those in power. "It would be incredibly chilling to anyone else practicing in either the same area or in any politically sensitive area," said Rachel Levinson, senior counsel with the American Association of University Professors, at the time, adding that Cuccinelli's request had "echoes of McCarthyism."

Ultimately, the Virginia Supreme Court ruled that Cuccinelli had no authority under state law to pursue such an action against the University of Virginia. But the battle took two years and cost the state's largest public university more than a half-million dollars.

Cuccinelli told the Richmond Times-Dispatch that he had an obligation to pursue the information as part of his inquiry into the use of taxpayer money.

"The (Virginia) Supreme Court said universities don't fall under the Fraud Against Taxpayers Act, which is kind of shocking, but we now know that," he told the newspaper. "In this office our first obligation is to the law."

Cuccinelli said that there are times when the limits of the law are not fully known. "That's part of what you end up doing when you have uncertain areas of the law," he said. "They are made certain by cases."

Three months later, in June 2012, Cuccinelli also lost his case seeking to overturn the Obama administration's endangerment finding on greenhouse gases. Then Chief Judge David Sentelle, an appointee of President Ronald Reagan's, led the unanimous three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C.

Acting Deputy Secretary of Homeland Security Ken Cuccinelli points to a map of downtown Portland, Oregon, while testifying to the Senate Judiciary Committee's Subcommittee on the Constitution August 4, 2020.

Ken Cuccinelli points to a map of downtown Portland, Oregon, while testifying about "anarchist violence" to the Senate Judiciary Committee's Subcommittee on the Constitution Aug. 4, 2020 in Washington, D.C. Credit: Chip Somodevilla/Getty Images

The judges dismissed Cuccinelli's argument—that the Obama EPA had improperly "delegated" its authority to the Intergovernmental Panel on Climate Change by relying on its reports assessing the science—as "little more than a semantic trick."

"EPA simply did here what it and other decision-makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted," the judges wrote in their decision, noting that the peer-reviewed assessments of the IPCC had synthesized the findings from more than 18,000 individual studies on climate change.

"This is how science works," the panel wrote. "EPA is not required to re-prove the existence of the atom every time it approaches a scientific question."

Cuccinelli's losses in the climate cases were no deterrent to his political ambitions. Only halfway through his term as attorney general, he had already announced he would run for Virginia governor. And among the biggest backers of Cuccinelli's bid were the companies that stood to benefit from his legal campaign against climate science.

Down at the Polls

The energy industry, led by the coal companies Consol, Alpha Resources and Murray Energy, poured $1.4 million into Cuccinelli's 2013 run for governor, making the sector his biggest supporter among the state's industries, according to the Virginia Public Access Project, a nonpartisan campaign finance tracker. 

But coal was not able to power Cuccinelli to victory. His opponent happened to be one of the Democratic party's most prodigious fundraisers—former national party chairman Terry McAuliffe, a longtime ally of President Bill Clinton.

McAuliffe outraised Cuccinelli nearly 2-to-1 in funding, with the Republican's energy industry haul easily outstripped by the Democrats' donations from environmental groups, including $1.7 million from the Virginia League of Conservation Voters and $1.6 million from NextGen Climate Action, the political action committee of hedge fund billionaire and activist Tom Steyer.

McAuliffe also had significant support—$2.6 million—from the tech sector, a central economic engine in a state that now ranks second in the nation (behind Massachusetts) in its concentration of technology workers. Some 447,000 workers are now employed in tech professions in Virginia, compared to 2,600 in coal mining, with the coal workforce down to one-quarter of its size in 1990.

Aside from the fundraising disparity, there was a deeper problem for Cuccinelli. "Ken Cuccinelli's political profile was useful for getting the Republican nomination, but not useful for actually winning," said Farnsworth. "Republicans historically have done better in Virginia when they have put forward less of a cultural warrior persona. Virginia generally doesn't like extremists."

To solidify the image of Cuccinelli as a fringe figure, McAuliffe made his crusade against climate science a campaign issue, running ads deriding it as "Cuccinelli's witch hunt, designed to intimidate and suppress."

"Climate change and science ended up being big dividing lines in our campaign," McAuliffe said. "Voters wanted Virginia to be welcoming to scientific innovation both because it is necessary to understand the risks of climate change to seaside communities like Hampton Roads and also because the jobs of the future are in innovation."

And McAuliffe had help delivering his message. Mann joined him on the campaign trail, making a swing through the state's tech corridors and academic centers; he even introduced McAuliffe and former President Clinton when they stumped in Charlottesville, home of UVA. Mann said in an email that he made the decision to actively campaign against Cuccinelli "because I understood the threat posed by this amoral, reactionary opportunist."

McAuliffe beat Cuccinelli by 3 percentage points (48 percent to 45 percent). Since then, the Democrats' hold on Virginia has only grown stronger, with the party last year gaining a state trifecta—control of the governorship and both Houses of the Legislature. Even Cuccinelli's old state Senate district has gone blue like the rest of Northern Virginia.

After his defeat, Cuccinelli turned his attention to national politics.

The Acting Appointee

Cuccinelli chose a path that was guaranteed to draw attention, if not a political future in Washington. In 2014, he took over as president of the Senate Conservatives Fund, a Super-PAC known for challenging Republican incumbents from the right. The previous year, it waged a campaign in support of Texas Republican Sen. Ted Cruz's effort to defund President Obama's Affordable Care Act, a showdown that led to a 16-day federal government shutdown. 

Just before Cuccinelli's arrival, the group invested nearly a half million dollars in an unsuccessful campaign to knock out Senate Majority Leader McConnell by backing current Kentucky Gov. Matt Bevin in the primary. Cuccinelli pledged to continue "to take on Republican incumbents who lost their way."

"Standing up to the Washington establishment isn't easy," he said in a video introducing himself to the group in June 2014, "but it's the right thing to do."

In the 2016 presidential race, Cuccinelli backed Cruz, expressing doubt over Trump's devotion to conservative causes. Before Trump accepted the GOP nomination at its convention in Cleveland, Cuccinelli staged a noisy floor fight over the platform rules, at one point, throwing his credentials on the floor and walking out of the convention hall. But Cuccinelli made clear that his beef was with the party, not the candidate, and he supported Trump's positions on trade and immigration when they were added to the platform.

Cuccinelli wasn't among Trump's first round of appointees. Instead, he continued agitating from the outside. Eight months into Trump's presidency, he was one of a group of conservative leaders who called on McConnell to resign, citing his failure to repeal Obamacare. That fall, Cuccinelli also defied McConnell and the rest of the GOP establishment—but was in sync with Trump—when the Senate Conservatives Fund backed controversial Judge Roy Moore in his bid to be Alabama's U.S. Senator. Moore's candidacy collapsed amid allegations that he had  repeatedly molested teenage girls, and Democrat Doug Jones won, becoming Alabama's first Democratic Senator in 20 years.

In 2019, Trump began a massive shake-up of the Department of Homeland Security, saying he wanted to go in a "tougher direction," and he looked to tap Cuccinelli. A coalition of 19 conservative groups signed a letter urging the president to put Cuccinelli in the agency's top job. Among the signers was Noah Wall, Cuccinelli's former political director in Virginia, who was now a vice president for FreedomWorks, the conservative group that helped launch the Tea Party.

But in addition to friends in influential places, Cuccinelli also had enemies. McConnell told reporters there was too much opposition to Cuccinelli in the Senate for him to be confirmed.

So Trump did what he has done with dozens of other high-level appointees: He appointed Cuccinelli on an "acting" basis. First, Trump placed him in charge of one of the agencies within DHS—the U.S. Citizenship and Immigration Services—forcing aside the acting director who was already in place. (A new position, principal deputy director, was created for Cuccinelli, and the order of succession at the agency was changed on what was said to be a temporary basis.)

Cuccinelli quickly made his mark, issuing directives making the asylum process more onerous for immigrants, restricting automatic citizenship conferred on children born abroad to active members of the U.S. military service, and denying legal status to immigrants deemed to need public assistance. In an interview with NPR, he mused on a changed motto for the Statue of Liberty: "Give me your tired and your poor who can stand on their own two feet and who will not become a public charge."

Mike Howell, a senior adviser at the Heritage Foundation who served early on in the Trump administration's Department of Homeland Security, said that Cuccinelli—unlike some of the earlier appointees at the agency—"is absolutely 100 percent on the same page with the direction that Trump wants to take the department."

Cuccinelli's background also has been a key asset in an agency that often finds itself the target of legal challenges, he said. "Being a former attorney general, he has a much-needed skill set," Howell said. "He has a command of the legal issues, especially when they are linked to political controversy." 

In November, when a new acting secretary, Wolf, took the helm at Homeland Security, he immediately elevated Cuccinelli to serve in an acting capacity in the No. 2 spot at the agency. Wolf said in an email to employees that Cuccinelli was "a constant and vocal advocate for the men and women of the Department who are protecting our borders and restoring integrity to our immigration system." Republicans grumbled about the need for long-term, Senate-confirmed leadership at the agency, but the president, who has said that "acting" appointees give him more flexibility, never sent Cuccinelli's name to the Senate for confirmation.

The arrangement gave advocates for immigrants a legal avenue to challenge the administration's policy. In early March, just before the upheaval of the coronavirus pandemic, a federal judge ruled that Cuccinelli's appointment was illegal, because he had not served in a subordinate role at the agency first, as required by the federal vacancies law. As a result, the judge voided Cuccinelli's directives on the asylum program.

The ruling appears to have had little practical effect on Cuccinelli's authority at the agency. While the department appeals the decision, Cuccinelli continues to serve both as "Senior Official Performing the Duties of the Deputy Director," and "Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services," in the vacancy-riddled agency.

And as protests spread across the country in the wake of the police-killing of George Floyd, Cuccinelli quickly moved into the national spotlight.

DHS Takes to the Streets

Four days after Floyd's murder, amid street protests in Oakland, California, an officer for the Federal Protective Service was gunned down and killed outside the federal building he was guarding. Cuccinelli called the killing of the DHS agency officer "an act of domestic terrorism," and pledged that the department would take an active role in response to the violence.

"We will stand behind our law-enforcement officers here in the department and all over America," he said.

Six weeks later, when two men were captured and charged in the Oakland assault, federal prosecutors detailed evidence that the men were associated with a right-wing extremist group, the Boogaloo Boys, and that they had taken advantage of the chaos of the anti-racism protests to stage their assault. That fact was lost in the executive order Trump signed on June 26, expanding DHS authority to respond to "anarchists and left-wing extremists." Trump directed DHS to provide personnel to assist in the protection of "federal monuments, memorials, statues or property."

Within days, DHS officers were deployed to Portland, Oregon, where Black Lives Matter protests had continued into July, stoked by tensions that have raged for years between leftists and white extremists in the city.

The conflict escalated with the arrival of the federal officers, and while many protesters were peaceful, others in the crowd tossed fireworks at officers and pointed high-powered lasers at federal agents, temporarily blinding them. Agents clubbed protestors with batons, used tear gas to disperse the crowds, and forced protestors into unmarked vans to detain them for questioning.  An unarmed 26-year-old protester who was holding a radio over his head suffered a fractured skull and brain injury when a DHS officer shot him in the forehead with a rubber bullet. 

DHS compiled and distributed to law enforcement "intelligence reports" on journalists who were covering the clash in Portland, a practice Wolf halted after The Washington Post reported on it. Politico later reported that the intelligence-gathering on journalists occurred after Cuccinelli relaxed the civil liberties oversight process at the agency. Murphy later was blamed for the incident and demoted, but his complaint alleges that this was a pretext for Wolf to get rid of him for his resistance to the alteration of intelligence reports for political purposes. White House officials have dismissed Murphy as a disgruntled employee.

In any case, Oregon officials repeatedly called for federal forces to withdraw, and the state attorney general sued the department for violating the civil rights of Oregonians. Before a retreat of the federal forces was negotiated between Gov. Kate Brown and DHS, enough images were captured on the streets around the federal courthouse to bolster Trump's pitch for his "law and order" presidency and also to support the case that the DHS had gone too far.

Roiling the Waters in Portland

Mann sees the scenes in Portland in the light of Cuccinelli's past campaigns. "I learned firsthand how misguided and dangerous a person Ken Cuccinelli is back in 2010 when he abused Virginia state laws to try to criminalize climate science," Mann said in an email. "Cuccinelli's denial of climate change is an extension of the same far right ideology that fuels his bigotry, his nativism, and now his literal attacks on American citizens."

Tim Whitehouse, executive director of Public Employees for Environmental Responsibility (PEER), a public interest watchdog group, has sued the administration over appointees who, like Cuccinelli, have not been Senate-confirmed. "These small groups of political appointees in government now, who were improperly appointed, are working to create what I would honestly call a police state— whose law enforcement powers are questionable and who are pursuing those powers for a purely political agenda."

Moms United for Black Lives Matter march during a protest against racial injustice and police brutality on July 31, 2020 in Portland, Oregon. Credit: Nathan Howard/Getty Images

Moms United for Black Lives Matter march during a protest against racial injustice and police brutality on July 31, 2020 in Portland, Oregon. Credit: Nathan Howard/Getty Images

But Cuccinelli has supporters who see both his litigation aimed at Mann and his leadership at DHS as well within his authority. "Michael Mann? He is deserving of the skepticism and criticism of his work," said prominent Republican lawyer Cleta Mitchell, a past chairwoman of the American Conservative Union Foundation, in an email. "Ken Cuccinelli was carrying out the obligations of his office by inquiring into Mann."

Mitchell said she was proud that she was one of the conservatives who urged the president to appoint Cuccinelli to his current position. "Ken approaches everything from the perspective of a tough-minded attorney, guided by his commitment to protecting and defending the Constitution and the rule of law.  He is smart, dedicated, and principled," Mitchell said. "I  couldn't be more impressed with the job he's doing every single day on behalf of our country."

Ted Cruz, one of Cuccinelli's few reliable allies among Republican leaders in the Senate, gave Cuccinelli the first opportunity to defend himself and his agency on Capitol Hill in a hearing in September. "Violent extremists in Portland perverted the peaceful protests in the aftermath of George Floyd's tragic death," Cuccinelli said. "The department fully supports the rights of peaceful protesters and will never abandon our mission to safeguard those precious and hard-won freedoms. But DHS did not have to expand its presence in Portland because of peaceful protests." Ticking off the weaponry his officers faced in the confrontations—"hammers, lasers, baseball bats, Molotov cocktails, chemicals"—he said that 144 officers had been injured.

Sen. Jeff Merkeley (D-Ore.) countered with a litany of the injuries the DHS officers had inflicted on Portland citizens, including veterans and mothers who tried to shield the protesters. "Thousands of Portlanders from every walk of life were assaulted," said Merkeley. "Thousands are dealing with the after-effects of military-grade tear gas. Trump's forces did not arrest the violent few, they attacked the peaceful many."

With the agency facing multiple lawsuits, and investigations launched by inspectors general for both DHS and the Justice Department, the only certainty is that the DHS show of force, and Cuccinelli's role in it, will be the subject of scrutiny for weeks—or possibly years— to come. Rep. Adam Schiff (D-Calif.), chairman of the House Permanent Select Committee on Intelligence, who led the impeachment case against Trump, has opened an inquiry into DHS activities in Portland and the whistleblower's complaint about the skewing of intelligence.. And with images of protest violence now featured in both pro-Trump and anti-Trump campaign ads, the most important referendum of all on the approach of Cuccinelli and his DHS team may come in the 2020 election.

Trump, for his part, seems happy. At a recent White House cabinet room meeting to announce new restrictions on the hiring of foreign workers, the president sought out Cuccinelli.

"Where's Ken? Hi, Ken. I didn't see you down there," said Trump.

"Quiet as usual," Cuccinelli answered to laughter.

"Doing a great job," Trump said. "Keep you busy, right? We're keeping you busy, Ken."

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