Early last June, the Open Technology Fund was scrambling for survival. The nonprofit fosters technology that enables people who live under repressive regimes to communicate securely. It is wholly dependent on the U.S. government for money. And the new CEO of the federal agency that subsidizes the fund had declared war on it.
So Lauren Turner, the fund's general counsel, turned to a familiar name for help: the powerhouse law firm McGuireWoods. The firm had been advising the fund pro bono, or without charge, for several months. Its lawyers met with the fund's board and president to discuss a potential lawsuit against the federal agency.
And then, word came down from the law firm's headquarters in Richmond, Va., that McGuireWoods would not represent the fund in this matter. Senior partners suggested the case might be too political, according to three people with knowledge.
Eight weeks later, the firm made an about-face. McGuireWoods signed a confidential, no-bid contract with the man threatening to take away the nonprofit's money for the year: U.S. Agency for Global Media CEO Michael Pack, an appointee of President Donald Trump. The agency also oversees Voice of America and other international networks sponsored by the federal government.
Led by a politically connected partner who has friends in common with Pack, the law firm would undertake an investigation of the Open Technology Fund. The Open Technology Fund would not learn of McGuireWoods' role until December, when Pack invoked the law firm's investigation in an attempt to bar the fund from receiving any federal dollars for at least three years.
"I was speechless," says Turner. "I had no idea that they would ever turn around and represent our actual adversary in a lawsuit, after an attorney in their practice had spoken to our board about our strategy and asked me for internal documents to help frame up the theory of our case."
Turner says she does not know whether McGuireWoods used any material she shared with its attorneys in its investigation against the fund.
Attorney who left law firm "shocked"
McGuireWoods attorney Greg Guice, who had been giving the fund pro bono advice, says he was blindsided, too.
"I was shocked to learn of this other work that McGuireWoods was doing," Guice says.
Several McGuireWoods staffers involved with the pro bono effort soon left the firm under duress from senior lawyers, according to two people with knowledge, though the Open Technology Fund work was not cited as a reason for their departures. Guice left in early September, just days after the law firm signed the contract with Pack of the U.S. Agency for Global Media. Another lawyer on the pro bono team left McGuireWoods the following month.
This story is based on contemporaneous documents and interviews with 10 people with knowledge of the events described.
Over the course of less than five months, McGuireWoods partner John D. Adams and his team earned well over $2 million in taxpayer money for work typically done by government employees, according to law firm billing records and exchanges between U.S. Agency for Global Media staffers reviewed by NPR.
In response to numerous and specific questions from NPR for this story, a spokesman for McGuireWoods said the firm does not discuss its representation of clients. An external lawyer advising McGuireWoods on the matter also declined comment.
Several outside lawyers tell NPR that McGuireWoods' handling of the Open Technology Fund appears deeply problematic.
"This needs to be investigated," Richard Painter, the former chief ethics lawyer for President George W. Bush's administration, said. "This needs to be looked into by the government and by the bar association. This is a potentially very serious matter."
Painter notes he does not have personal knowledge of the case. But he says the sequence of events raises questions about whether the law firm violated ethics rules about conflicts of interest.
2 billion people rely on apps developed with support from tech fund
The Open Technology Fund subsidizes tools designed to help democracy advocates circumvent government censorship and surveillance. The platforms it supports also help to transmit overseas the news coverage of networks overseen by the U.S. Agency for Global Media.Along with VOA, they include Radio Free Asia and Radio Free Europe/Radio Liberty.
The fund has helped to pay for the development of the software that undergirds such platforms as Signal and Tor. Facebook's communication platform WhatsApp, for example, relies on the Signal Foundation's open-code technology to power its encryption.
By the Open Technology Fund's estimates, 2 billion people rely daily on mobile communications apps developed with its support.
Early last year, the fund connected with staffers at McGuireWoods' consulting arm. Turner, the fund's top lawyer, says she had worked hard to find private attorneys at big firms willing to do pro bono work in the field of tech and human rights. She says she was skeptical whether corporate law firms would handle the nonprofit with respect.
"It was a leap of faith to kind of go out on that limb and establish relationships with them," Turner says. "And I really felt like it was an important thing to do to prove to our community that there are attorneys with competence and resources who can and will help you."
McGuireWoods initially advised the Open Technology Fund on privacy issues related to some of the software developers it was helping to sponsor. In mid-April, Guice wrote to Turner to confirm that the firm had officially taken the fund on as a client, in an exchange viewed by NPR. At the same time, Pack's nomination to lead U.S. Agency for Global Media was regaining momentum in the Trump White House and the Republican-controlled Senate.
Mass firings by Pack
After Pack was confirmed and took office in June, he sought to fire the fund's leadership and freeze its assets. Soon he moved to take over its board. He sought to redirect its finances to support a handful of favored software projects.
Turner reached out to McGuireWoods.
"Hey Greg! Just left you a voicemail. Was hoping we could chat briefly," she emailed Guice on June 17. "Please give me a call as soon as possible."
The fund's CEO, Libby Liu, had asked general counsel Turner to file a restraining order to block Pack from taking actions against the fund's leaders. Turner says she didn't know whether that was the best course and, even if it was, how to file one against the federal government.
The next day at 9 a.m., Turner emailed again: "Hey Greg — We lost our entire Board and CEO last night. Still up to chat today! Our president will join as well."
Pack had asserted he had authority to fire the board and Liu, though that wasn't clear, as the fund is separately incorporated. (Liu had announced she would be leaving in July; Pack fired her anyway, effective immediately.)
Pack sought to fire the fund's president, Laura Cunningham, too. And for the next five days, Turner shared the most sensitive materials with McGuireWoods attorneys, including a senior partner at the firm, as it weighed whether to seek a judge's injunction that would prevent Pack from taking action against the fund's leaders.
The fund shared internal emails, its bylaws and potential legal approaches with the firm, according to contemporaneous materials viewed by NPR. The senior partner relayed additional questions as McGuireWoods reviewed whether it would accept the fund as a client. Finally, Turner says, she was told that McGuireWoods would not represent the fund in court.
The Open Technology Fund retained another law firm and filed its motion on June 23.
Executives urged Pack not to take over fund
Senior executives at the U.S. Agency for Global Media urged Pack not to unilaterally replace the Open Technology Fund's leaders or to divert its resources. The executives told him some of his plans were unworkable and possibly illegal. Pack released a statement saying the fund's leaders "seem more concerned about covering up corruption and past failuresthan working on behalf of the American people."
It's not entirely clear why Pack launched this campaign against the fund. In documents, he has cited old audits of the fund, questioned its selection of projects to support and accused it of withholding information needed to conduct oversight. Pack has not responded to NPR's detailed requests for comment.
What is clear is that the threat to the fund was existential: Cunningham says Pack's attempts, if successful, would have formally blocked the fund from receiving money not just from USAGM but also from any other federal source, such as the State Department.
"One hundred percent of our funds come through the federal government," says Cunningham, now the fund's CEO as well as its president. "If we were to be debarred, we would have been prevented from receiving federal funds for three years, if not more. The debarment would have been the end of the organization."
In late July, one of McGuireWoods' clients, the App Council, signed an amicus curiae, or friend of the court brief, filed in support of the fund. It had the blessing of the law firm's attorneys.
By that time, according to a former U.S. Agency for Global Media staffer with knowledge, Pack had spoken directly to attorneys at McGuireWoods and several other firms.
A federal judge ruled against the fund, but it won a temporary injunction preventing Pack's orders from taking permanent effect until an appellate court had time to hear its case. (The case is technically ongoing, although Pack is no longer in office.)
On Aug. 12, Pack suspended USAGM executives who were protected from being fired by civil service rules. They included the agency's chief financial officer, general counsel and chief strategy officer. Two weeks later, Pack personally signed a contract with McGuireWoods to investigate them for "allegations of potential misconduct." McGuireWoods also investigated the Open Technology Fund as part of its service.
The contract McGuireWoods sent for Pack's signature, released under the Freedom of Information Act, stated, "We are not aware of any conflicts that disqualify us from representing You." The firm also said it retained the right to accept future legal or consulting services for people whose interests were against the agency in matters unrelated to the investigation. (In October, a federal judge ruled Pack had acted illegally in seizing control of the fund, in response to a civil suit brought against USAGM by the District of Columbia attorney general.)
And that all stayed secret until December, when Pack unveiled his plan to strip the Open Technology Fund of its federal funding and ban it from receiving any government funds. He relied on material from McGuireWoods.
On Dec. 22, Turner wrote a letter to Pack calling his accusations "absurd and easily disprovable." She noted that many of his stated concerns were more than 5 years old.She also questioned whether McGuireWoods might have violated standards of expected professional conduct.
The Open Technology Fund enjoys strong bipartisan support on Capitol Hill. When congressional staffers posed questions in December to McGuireWoods on the propriety of its involvement in the investigation, the firm referred them to an outside lawyer it had retained to advise it. That lawyer was Emmett Flood, who had served as the interim White House counsel to President Donald Trump, according to Tim Mulvey, a former top staffer at the House Committee on Foreign Affairs. Congressional aides said they did not receive any information from Flood, who separately declined to comment to NPR.
Law firm "one of the most powerful political entities" in Virginia
McGuireWoods had well-regarded attorneys and deep pockets. Its roster includes a former state Virginia attorney general, a former governor of South Carolina and a former chief of staff to a U.S. senator.
The Richmond Times-Dispatch once called the law firm "one of the most powerful political entities in the state" of Virginia.
John Adams, the lead partner on the investigation for U.S. Agency for Global Media, is said to be a descendant of the same Massachusetts family as the second U.S. president. He was the GOP nominee for Virginia attorney general in 2017 and a former Supreme Court clerk to Justice Clarence Thomas. Through Thomas, Adams shares a tie to Pack, a conservative documentary maker. The reclusive jurist and his wife, the conservative activist Ginni Thomas, sat for dozens of hours of interviews for a sympathetic film produced by Pack. It was released last year.
Adams' brother, Theodore F. "Tray" Adams III, heads McGuireWoods' public affairs consulting arm in Virginia. The original pro bono effort on behalf of the fund was undertaken by the consulting wing.
Guice, the former McGuireWoods attorney and lobbyist, says he only learned of the firm's investigation of the technology fund in mid-December, when Turner asked him about it.
Revelations about the no-bid contract last week generated sharp criticism; Walter Shaub, a former top White House ethics official under President Barack Obama, suggested on Twitter they might reflect violations of the federal contracting procedures. Publicly released documents reflected that McGuireWoods earned more than $1 million through the end of October. Exchanges between USAGM staffers reflected the firm would bill more than $1.2 million for November and December, pushing the final tally above $2 million.
On Jan. 19, McGuireWoods informed Pack it had wrapped up the investigation. Pack resigned at President Biden's direction a few hours after his inauguration the next day. The agency's new acting CEO, Kelu Chao, has reappointed most of the executives who were suspended and investigated.
New USAGM leaders: "likelihood of wrongdoing"
In a comment to NPR, USAGM's new leadership noted that a federal watchdog called the Office of Special Counsel has found "a substantial likelihood of wrongdoing" over Pack's suspensions of senior executives and hiring of McGuireWoods to investigate them.
"The latter is allegedly a gross waste of funds," says Laurie Moy, the acting director of public affairs at the U.S. Agency for Global Media. Typically, federal attorneys, human resources professionals or inspectors general conduct such reviews.
"The agency has significant concerns about these actions of former CEO Pack and his team," Moy says. "Accordingly, we have referred this matter to the [State Department] Office of Inspector General, whose findings will be given to the Office of Special Counsel. We look forward to fully cooperating with these and other investigations. "
On Monday evening, acting USAGM CEO Chao wrote to the fund to rescind Pack's ban on its ability to receive federal money.
"After reviewing the matter, we have a number of concerns about Mr. Pack's motivations," Chao wrote. She cited law that requires that moving to "debar" or suspend a recipient from federal sponsorship "are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment."
Disclosure:This story was reported by NPR media correspondent David Folkenflik and edited by NPR media and technology editor Emily Kopp. Because of NPR CEO John Lansing's prior role as CEO of the U.S. Agency for Global Media, no senior news executive or corporate executive at NPR reviewed this story before it was published.
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