Trump Trade Nominee Lighthizer Needs Waiver Over Work for China and Brazil

  • Lighthizer represented foreign governments in trade disputes
  • Hatch says Lighthizer will need House and Senate to waive ban

President Donald Trump’s nominee to become the nation’s top trade official will need a special congressional waiver to take his post because of previous work he’s done on behalf of foreign governments, said Senator Orrin Hatch, who chairs the committee handling the confirmation process.

Robert Lighthizer, Trump’s pick as U.S. Trade Representative, represented an entity controlled by the government of China in a trade dispute with the U.S. in 1991, according to filings with the U.S. International Trade Commission. He also worked on behalf of Brazil in 1985, according to disclosures filed with the Justice Department required by the Foreign Agents Registration Act.

Robert Lighthizer

Source: Skadden

“We want to get him through,” Hatch said Tuesday outside the Senate dining room. “We’ve got to get a waiver first. But we want to get him through.”

Lighthizer will need the House and Senate to waive a provision that bars anyone who represented foreign governments in trade negotiations or disputes with the U.S. from serving as the nation’s trade representative. The restriction is part of the 1995 Lobbying Disclosure Act, which was passed in part as a reaction to criticism that former U.S. trade officials had left their posts to negotiate the North American Free Trade Agreement on behalf of foreign governments.

Congress waived the ban in 1997, after then-President Bill Clinton nominated Charlene Barshefsky, who’d represented a trade association sponsored by the Mexican government during NAFTA negotiations, according to disclosures filed with the Justice Department required by the Foreign Agents Registration Act.

Confirmation Process

Obtaining the waiver adds another step to a confirmation process for Trump’s cabinet that’s already lagging. The White House Transition Project, which tracks the pace of presidential appointments and confirmations, notes that the Senate has held up three times as many nominations as it did in 2009, when former President Barack Obama entered office. The White House press office didn’t immediately respond to a request for comment.

In 1991, Lighthizer represented the Chinese Chamber of Commerce for Manufacturers and Electronics, or CCCME, a trade association that represents state-owned enterprises, in an anti-dumping action brought by a pair of U.S. manufacturers of ceiling and oscillating fans, according to documents obtained from the U.S. International Trade Commission. 

When Lighthizer started working for the CCCME, the USITC had already concluded that Chinese companies were selling their products at less than fair value and was trying to determine how much to raise tariffs on their products.

‘Self-Inflicted’

Lighthizer blamed domestic fan makers’ travails on a series of circumstances, including a recession in 1990 and “several very bad business decisions” on the part of the U.S. companies. “If there are signs if injury, it is an obviously an injury that self-inflicted,” Lighthizer wrote in a brief.

China, the largest trading partner of the U.S., has been a frequent target of Trump’s rhetoric. He has often pointed out the $336 billion trade deficit that the U.S. has with Beijing and accused the country of currency manipulation and other unfair practices. Trump has promised to create a “level playing field” with the country. To do so, he’s chosen a trade team that, in addition to Lighthizer, includes longtime China adversaries like Commerce Secretary Wilbur Ross, who pushed for higher tariffs on Chinese steel, and Peter Navarro, an economics and public policy professor who is heading Trump’s National Trade Council.

QuickTake How Trump’s China Trade War Could Play Out

Although his work for China took place more than 25 years ago, Lighthizer will still have to explain it to Congress, said Ben Freeman, deputy director of the national security program at Third Way, a nonpartisan think tank, and author of 2012 book on foreign lobbying.

China Critic

“No matter how long ago this happened, he has to address the issue,” Freeman said. “Maybe he learned from that experience. That doesn’t change the law.”

Lighthizer, 69, has also represented U.S. Steel, his only major client in recent years, which he represented in disputes with foreign firms or governments over allegations of unfair competition, according to his personal financial disclosure form. He has also been a frequent critic of China, once describing the country’s political and economic systems as being “fundamentally incompatible” with the World Trade Organization.

In 1985, Lighthizer registered under FARA as a lobbyist for a division of the Brazilian Ministry of Commerce. He met with officials of the Commerce Department in December of that year in order to work out a settlement. Between 1985 and 1990, Lighthizer represented four other foreign clients, which required him to register with the Justice Department and for his law firm, Skadden, Arps, Slate, Meagher & Flom, to disclose his work agreements and duties.

Trump has been critical of U.S. officials who go on to work for foreign governments, and the ethics order he issued on Jan. 28 includes a lifetime ban on members of his administration from doing so. Lighthizer served as Deputy U.S. Trade Representative in the Reagan administration from 1983 to 1985 before joining Skadden.

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