Past China Work Slows Confirmation of Lighthizer for Trade Rep

By Len Bracken


Work that Robert Lighthizer did on behalf of a Chinese organization in the 1990s has become a point of concern that’s slowing his confirmation as U.S. trade representative (USTR), Senate aides have told Bloomberg BNA.

Lighthizer’s work for the Chinese Chamber of Commerce for Manufacturers and Electronics (CCCME) has become the focus of behind-the-scenes negotiations between Republicans and Democrats about moving a waiver of Lobbying Disclosure Act of 1995 restrictions through the Senate and House, the aides said.

China uses industry-specific chambers to hire legal counsel for trade remedy cases, and Lighthizer was hired by the CCCME to represent Chinese manufacturers of ceiling fans in an antidumping case in the U.S. in 1991.

Some Democrats are seeking Republican backing for legislation they support in exchange for voting in favor of the waiver, which is essentially a law, that requires 60 votes in the Senate.

The Miners Pension Act is being discussed as a possible Democratic bargaining chip, Senate aides said. In addition, the drafting of the waiver hasn’t been completed.

Lighthizer—a former deputy USTR, Senate Finance Committee chief of staff and trade attorney—is considered by some to be the most experienced member of the Trump administration’s trade team, someone who is well known to industry groups who are ready to work with him on issues of concern.

Moreover, the waiver is required because of Lighthizer’s work in 1985 on behalf of Brazil and for other governments, which required him to register as a foreign agent. Absent a waiver, this representation would preclude him from being USTR under the Lobbying Disclosure Act.

Routine Trade Work.

There is a commercial exception for lawyers working on trade remedy cases, but Lighthizer may have registered under the Foreign Agents Registration Act for his CCCME work as a matter of prudence, according to Bart Fisher an international trade lawyer.

Fisher, who represented the Chinese government from 1999 to 2002, said it would be unfair to penalize Lighthizer for his routine trade law work, adding that the nominee has proven his critical stance on China through his more recent andextensive work on behalf of the U.S. steel industry.

Former U.S. Trade Representative Charlene Barshefsky was granted a waiver in 1997 for her work for the government of Mexico in what were overwhelming, noncontroversial votes.

But the fact that Lighthizer worked for China and that Democrats are seeking concessions is making Lighthizer’s waiver process much more complicated, as is the fact that his 1985 representation of Brazil on behalf of Skadden, Arps, Slate Meagher & Flom took place the same year that he resigned as deputy USTR.

Delayed Hearing.

Senate Finance Committee Chairman Orrin Hatch (R-Utah) has acknowledged that a waiver is needed to get Lighthizer confirmed. A Senate Finance Committee confirmation hearing tentatively planned for the week of Feb. 13 was delayed because of Lighthizer’s past China work, according to an industry representative who said the hearing wouldn’t be held until the agreement had been reached in the committee and passage assured in both chambers.

William Reinsch, a senior international trade adviser with Kelley Dry & Warren LLP, said these are old stories that aren’t likely to block Lighthizer’s nomination. Reinsch, who was a senior Senate staff member, said, “If he were working for the Russians last year, it would be a different matter, but these were a long time ago.”

“Generally speaking, in this country we don’t hold a lawyer hostage because of the sins of his clients,” Reinsch said. “It’s understood that representing them as a lawyer does not necessarily mean he either condones their conduct or subscribes to their point of view.”

By Len Bracken
— With assistance from Bill Allison and Andrew Mayeda.

Len Bracken

Bloomberg BNA

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