A political appointee is accused of harassment. He says it’s an attempt to block his trade policies.
A federal agency responsible for enforcing trade laws is probing a harassment complaint against one of its leaders, after internal divisions over the future of international trade policy devolved into a heated and deeply personal battle.
The investigation has exposed deep tensions among individual commission members and career staff at the obscure but powerful International Trade Commission, with a prominent skeptic of free trade claiming he is being targeted with the harassment probe for trying to shift the agency’s work in a more protectionist direction.
The conflict is peaking just as President Joe Biden prepares to name a new chair of the ITC, which also advises lawmakers and presidential administrations on trade policy. One of the contenders for the top job, Democratic commissioner Jason Kearns, is under investigation after being accused of using intimidating language during a late March meeting. Kearns, himself, confirmed the probe in a letter viewed by POLITICO that he sent to the ITC general counsel last week requesting the investigation be closed.
According to three people with direct knowledge of the encounter, who were granted anonymity to reveal confidential internal dynamics, Kearns verbally sparred with staff over whether influential reports put out by the agency should be more skeptical of free trade, at times raising his voice and using profanity. One person with knowledge of the meeting said the encounter was part of a “pattern of behavior” from Kearns that had been displayed previously, as well.
Kearns defended his behavior in a statement to POLITICO, describing it as impassioned, but not aggressive, and calling the allegations “baseless.” And he suggested that the real issue is not the alleged harassment, but an ideological split within the commission over its approach — and the future of U.S. trade policy.
Kearns has sought to steer the agency’s analysis in a more trade-skeptical direction, applying more scrutiny to the data and methodology used in congressionally requested reports that often influence legislation and executive actions.
That’s riling ITC Chair David Johanson — a Republican appointed by President Barack Obama — and his allies on the commission, as well as many of the career staff at the ITC, who tend to hold a favorable view of free trade policies that have come under growing criticism from both the left and the right.
“There are those who wish to preserve status-quo thinking on trade at the Commission,” Kearns said in a statement to POLITICO. “They attempt to do this by excluding my input into the Commission’s fact finding work and by engaging in personal attacks.”
The ITC and Johanson declined to comment on the harassment investigation or whether it is motivated by policy disputes between commission members.
The bitter dispute is the latest battlefront between free trade-oriented policymakers in Washington and insurgent protectionists like Kearns, who have sought to prioritize the environment, labor conditions and domestic manufacturing in trade policy. And it underscores how dramatically Washington’s political consensus on trade has shifted over the last decade, sparked by former President Donald Trump’s protectionist agenda. Similar policy disputes saw some senior trade leaders leave U.S. Trade Representative Katherine Tai’s office earlier this year.
Biden and presumptive Republican presidential nominee Trump are vying to prove their protectionist bona fides to voters ahead of this fall’s election, particularly in Midwestern swing states that have been hit hard by free trade.
The conflict between the commissioners centers on so-called Section 332 reports — named after their place in the Tariff Act of 1930 — which are a little-known but highly influential function of the trade commission. Presidential administrations and congressional offices routinely request the reports from the ITC to assess how certain trade policies like tariffs will affect the U.S. economy.
Up until 2022, ITC staff would largely compile and write those reports themselves, with commissioners signing off on the product once it was largely completed. Kearns sought to change that in 2022, with a policy directive that gave commissioners more insight and influence into the underlying calculations, data sources and methodologies that comprise those reports.
That has drawn the ire of other commissioners — particularly Johanson and Rhonda Schmidtlein. They view Kearns’ directive as opening the authoritative reports up to political influence, potentially degrading their reputation as impartial, technocratic work products.
Late on Thursday, Johanson signed off on a new directive, obtained by POLITICO the next day, that alters elements of Kearns’s 2022 policy.
Johanson, along with Schmidtlein and Commissioner Amy Karpel, downplayed the differences between the 2022 Kearns directive and Johanson’s update this week, saying in a Friday statement that the “key elements” of the original directive were preserved in the new policy statement, and “all of the procedures” on staff and commissioner interactions have been “incorporated into manuals for staff.”
But Kearns disputes that reading, saying that the new directive “neuter[s] and eviscerate[s]” his policy by removing stipulations that directed staff to be “as inclusive as possible” in conducting reports and a guidance that ensured commissioners’ aides would be in the room with lawmakers or executive branch agencies when they discuss the technical reports requested from the commission.
“The critically important procedures that ensure Commissioner engagement in our work under this statute are being cut out of the directive and placed in staff handbooks – handbooks that can be amended by staff without Commissioner approval,” Kearns said in a statement to POLITICO on Friday. “The purpose and effect of these changes will be to cut out of the process those of us who want the Commission to embrace fresh new thinking on trade that will position the Commission to better examine supply chain resilience, labor, climate and other issues intertwined with international trade.”
Johanson’s term at the top of the agency expires at midnight on Sunday, and the White House is currently considering whether to select a new chair or let the gavel automatically fall to Schmidtlein, a Democrat appointed by Obama who largely aligns with Johanson’s approach on the Section 332 reports. The president could, alternatively, tap Kearns, who also led the commission until 2022, or hand the chairmanship to another sitting commissioner, Amy Karpel, a Democrat appointed by Trump, or nominate a new figure from outside the agency.
Kearns, a former top Democratic trade staffer on the House Ways and Means Committee, was accused of acting aggressively at the March meeting when defending his 2022 policy directive.
“There are longstanding and fundamental, substantive differences between me and my fellow Commissioners concerning our ‘fact finding’ work,” Kearns wrote in a letter to the ITC general counsel this week, requesting the harassment probe be closed. The policy disagreement, he added later, has resulted in “several heated arguments over the past six years,” and is “at the center of this investigation, as it was the subject of the March meeting upon which this investigation is based.”
In recent years, the Biden administration and some congressional lawmakers have asked the ITC to expand these reports to assess new trade issues, like the greenhouse gas emissions of steel and aluminum facilities; intellectual property rights for Covid-19 vaccines; and how trade affects income inequality, to name a few recent examples. At the same time, Kearns has sought to change the internal methodologies underlying those reports.
At the ITC, Johanson “has been happy with the approach historically taken with these reports over the past few decades, which is free trade is always good and [staff doesn’t] look at things that might counter that [assumption], such as labor issues and environmental standards,” said one person familiar with the dispute at the commission, granted anonymity to recount confidential internal conversations. “[Kearns] has come in wanting to expand the perspective of these reports and to think about more of these subjects, and I think that’s reflecting the shift that’s going on politically on trade among both parties, and there’s been resistance to that.”
After the March meeting where Kearns was accused of using abusive language, Johanson sent out an email to all of the ITC staff reminding them that “unprofessional actions that result in a hostile work environment are not acceptable,” and that those actions are “especially egregious when [they] are conducted by persons in positions of authority — including Commissioners and their aides.”
The Johanson letter also said that staff are “strongly encouraged to report harassing or bullying behavior by anyone in the Commission workplace — including a person in a position of authority — to the Commission’s Anti-Harassment Coordinator.” The probe into Kearns’s behavior was opened soon after, though the ITC declined to say who requested the investigation.
In his letter to the ITC general counsel this week, Kearns “categorically” denied “any alleged breach of Commission policy,” and argued that it was “initiated by someone – and recently leaked to the press by someone – with an ulterior interest.” The anti-harassment policies, he said in the letter, are “unlawfully misused to undermine me and the work I am doing to improve our [Section] 332 product and to improve the administration of the Commission.”
