Politics & Government

As Kobach pursues U.S. Senate, border wall group he represents leaves anger in its wake

Kris Kobach, the newly announced Republican U.S. Senate candidate, is quick to tell voters about one of his other roles: handling legal affairs for the non-profit trying to turn President Donald Trump’s call to “build the wall” into reality.

The former Kansas secretary of state is general counsel for We Build the Wall, formed in late 2018 from a Go Fund Me account that raised millions to erect barriers along the U.S.-Mexico border.

Kobach, who also sits on the board, told supporters at his July 8 campaign launch that his work with the group was “one of the most rewarding things I have done in my career” and has deepened his understanding of the threats posed by cartel scouts and “narco-terrorists.”

But as Kobach proudly promotes We Build the Wall, the organization has tangled with all levels of government.

In building the first segments of its promised barrier, the group has angered officials in a New Mexico border town and prompted a Florida agency to investigate consumer complaints lodged against it.

What’s more, the federal agency tasked with enforcing boundary and water treaties between the United States and Mexico has identified a number of problems with We Build The Wall.

Records obtained by The Star through a Freedom of Information Act request show that the U.S. International Boundary and Water Commission found that the private wall channels people — either those entering the country illegally or other unauthorized parties — close to a federal dam on the Rio Grande River, raising security and safety concerns.

The IBWC—led by a Trump appointee—found We Build the Wall’s required studies, documentation and coordination with other federal agencies, like the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service, were insufficient or lacking altogether.

At the same time federal officials have raised alarms, Kobach has emerged the most prominent public face of We Build the Wall.

In the months since he lost the 2018 Kansas governor’s race, he’s led reporters on tours of border wall construction. He’s gone on Fox News to tout the cost-effectiveness of a privately-funded wall. He suggested in a radio interview that We Build the Wall supporters skip dinner out and instead donate the money saved.

Kobach has said Trump blessed the effort, but the White House continues to decline to confirm that.

As his Senate candidacy gears up, Kobach appears likely to remain an ambassador for We Build the Wall.

His aides say there is no connection between the campaign and the group. But his continuing involvement creates the potential for blurred lines.

Even if there is no formal relationship, Kobach’s dual roles will likely benefit both his campaign and We Build the Wall, said James Harris, a veteran GOP political consultant from Missouri.

As We Build the Wall gains from Kobach’s stature as an illegal immigration hard liner, so does Kobach’s campaign—because he can point to concrete actions he’s taken to turn the wall into reality.

“Immigration, border security in every poll I’ve seen … polls very high among Republican primary voters,” Harris said.

We Build the Wall is the “perfect organization” for Kobach’s campaign, said Bob Beatty, a political scientist at Washburn University in Topeka.

“It fits in perfectly with his base strategy because it imparts to the voters that he’s trying to attract that they are taking government back and they are going to build the wall,” Beatty said.

Campaign manager Steve Drake said the candidate is paid for his legal work for We Build The Wall, but wouldn’t disclose his salary. Kobach’s involvement includes “everything from site selection to drafting legal agreements with landowners,” Drake said.

We Build the Wall is seeking non-profit, tax-exempt status from the Internal Revenue Service. But the group did not agree to share with The Star the documents it has filed with the IRS. It also declined to provide Kobach’s compensation as general counsel.

Trouble in Sunland Park

On May 22, administrators in Sunland Park, New Mexico got a tip: There was some kind of construction underway on the side of a mountain at the southern edge of the town of 14,000 that borders both Mexico and far west Texas.

The next day, according to a city official, codes enforcement officers and building inspectors went to property owned by the American Eagle Brick Company to see what was going on. They were told to leave and only come back if they had a warrant.

Later that week, American Eagle’s owner, George Cudahy, met with city officials, who left with the impression that Cudahy was merely building a brick wall. So long as he got all his permits, the project was fine, they said.

Over the Memorial Day weekend, when city officials were away enjoying the holiday, news began to spread: This was no brick wall. We Build The Wall was erecting a roughly 20-foot high metal barrier with private funds to keep migrants from crossing into the United States, according to Sunland Park mayor Javier Perea.

Sunland Park officials issued a stop work order, a move that triggered an avalanche of threatening and demeaning messages, some directed at Perea.

“Some of them were using derogatory language because of me being Hispanic, against me and my family,” Perea told The Star.

On most municipal topics, Perea gets about 50 to 100 emails. On the wall, he received 6,000.

In the end, We Build The Wall moved ahead without all the necessary permits; Perea said there’s still an outstanding grading permit that hasn’t been issued.

A builder usually gets permits ahead of time, not after a project has been built. Perea said an organization that employs a general counsel should know that.

“I believe it was deliberate, with the idea of, we’re just going to build it and then we will deal with the consequences later,” Perea said.

Kelly O’Connell, a lawyer representing George Cudahy, said that while We Build the Wall wanted to move quickly, he did not believe the intent was to act surreptitiously.

“Number one, it’s going to create problems legally,” O’Connell said. “And number two, it’s going to look bad.”

We Build the Wall founder Brian Kolfage said the group worked with the city to obtain permits.

“The mayor has made several comments during this process that have been factually incorrect,” Kolfage said. “City inspectors were well aware of the type of wall that was being constructed. Indeed when they made their final inspection prior to the start of construction, the steel bollards were right in front of them.”

A city inspector who was on site on May 24 told We Build the Wall it could begin pouring concrete, Kolfage said. He added that inspectors said the group could finish permitting after construction because the city official who calculated permit fees was on vacation.

Kolfage said when the city later decided permits were required other than the ones We Build the Wall had obtained, the group stopped construction and got them before resuming work.

Kolfage, an Air Force veteran who served in Iraq, set up the group as a nonprofit in January after initially attempting to raise funds for a wall through a GoFundMe page late last year.

A criminal codes complaint was issued but dismissed by Sunland Park’s municipal court because the city named Cudahy when the title on the property belongs with American Brick Company. The city is considering a revised complaint. If it is upheld, it could mean a $500 daily fine.

O’Connell said he belived city officials were not prepared for what We Build the Wall was trying to do.

“It’s a very unsophisticated place down there,” he said.

Perea finds no small degree of irony in an organization that advocates for legal immigration but flouts local codes and ordinances.

“The intention was to create controversy, create chaos and also as a fundraising mechanism because what happened after this as well is they raised a lot more funds for this particular project,” he said.

We Build the Wall’s problems in Sunland Park include conflict with the federal government.

The group built a gate in early June on federal land controlled by the U.S. section of the International Boundary and Water Commission, the agency that governs the control of rivers along the U.S.-Mexico border. The commission says the gate blocks a federally-owned levee road.

We Build the Wall kept the gate shut, the commission says, despite repeated requests to open it. On June 10, the commission secured the gate open with a lock and chain during the day, while keeping it locked at night.

“The gate is unlocked during the day so that USIBWC employees can conduct maintenance and operations at American Dam, a critical structure for delivering Rio Grande water for use by El Paso residents and by American and Mexican farmers,” the commission said in a statement.

We Build the Wall applied for a permit to install the gate on June 2 and provided additional materials in support of the application on June 25, the commission says.

But as recently as July 10, the IBWC was still waiting for a number of items it had requested, according to records obtained through a Freedom of Information Act request by The Star.

The IBWC told We Build the Wall that the barrier’s location so close to the American Dam presented safety and security issues. Fisher Industries, a contractor working with We Build the Wall, pushed back on the IBWC’s concerns.

“Solutions that propose to reduce or remove a private property owner’s right to fence or otherwise deny illegal access and provide protection to their own property are patently unfair or unacceptable,” the company wrote to the IBWC.

Even so, the IBWC said, private entities have no right to build gates on federal property without authorization.

The IBWC also found that We Build the Wall’s team gave conflicting answers to questions. When the agency asked that it coordinate work on federal property with the U.S. Army Corps of Engineers, We Build the Wall’s contractor said it had worked with the Department of Homeland Security on helping prevent “individuals from illegally entering the United States.”

They added that it was their hope that other federal agencies would work out the rest among themselves.

The IBWC pointed out that on one hand, We Build the Wall said the project was meant to protect private property while later on asserting it was a government project.

Either way, the IBWC said, it was We Build the Wall and its contractors’ job to deal with other government agencies.

The IBWC also said several documents were missing from We Build the Wall’s engineering materials, including studies related to how stormwater would affect erosion and runoff into Mexico and proof that the project did not harm historical sites or threaten endangered species.

The IBWC was also concerned with finding mounds of construction fill from We Build the Wall’s work that ended up across the border in Mexico.

“If some minor amount of the rocky material rolled off the slope it is not meant as an intentional affront to our neighbor or as any form of trespass,” the company replied.

Kolfage said We Build the Wall has been working with the IBWC since day one and “they chose the design of the gate itself.” He also said that the communications between IBWC and Fisher Industries that were unrelated to his organization despite the fact that the documents make it clear that Fisher works on behalf of We Build the Wall.

We Build the Wall also faces an investigation in Florida, where the group is incorporated. The state’s Department of Agriculture and Consumer Services, led by the only statewide elected Democrat in Florida, is looking into consumer complaints against the group.

Spokesmen for the agency didn’t respond to calls and emails this week.

‘Completely separate organizations’

Even as We Build the Wall faces challenges in pursuing its namesake goal, Kobach’s plan to continue as its general counsel while he campaigns comes with potential pitfalls for both him and the group.

There is no law that would prohibit someone in a leadership role with a nonprofit from running for public office, said Philip Hackney, a law professor at the University of Pittsburgh who previously worked for the IRS focusing on tax-exempt organizations.

But, Hackney said, Kobach cannot use any nonprofit resources to support his campaign, including office space, staff and mailing or donor lists. Doing so could put the organization’s nonprofit status in jeopardy, he said, as well as potentially run afoul of campaign finance law.

“A 501c4 organization doesn’t have to register to disclose its donors, and it’s supposed to be operated for social welfare purposes,” Hackney said. “The worry would be whether Secretary Kobach is really using this as an end run around election and disclosure laws.”

In Missouri, former Gov. Eric Greitens ran into these issues when it was discovered he’d used the donor list of Mission Continues, a veterans charity he founded to raise money for his 2016 gubernatorial campaign.

The charity denied giving Greitens permission to use the donor list, and he was eventually charged with felony computer tampering for allegedly taking the list without permission.

The felony charge was dropped as part of a plea deal that involved Greitens resigning from office.

But We Build the Wall Inc. is a social welfare nonprofit, not a charity. While 501c3 charities are forbidden from engaging in political activity, 501c4 social welfare groups are not.

“So the potential problem is lessened,” said Bruce Hopkins, a Kansas City-based attorney who practices nonprofit law and is a professor at the University of Kansas School of Law. “But issues concerning private inurement and private benefit still may be involved, such as excessive or unwarranted compensation or use of resources such as mailing lists.”

Drake, Kobach’s campaign manager, said the campaign and We Build the Wall have no connection, other than the fact Kobach leads both organizations.

“They are completely separate organizations, and no money raised for one can be spent on behalf of the other. There are multiple separations between the two, including separate staff, separate bank accounts, separate fundraising campaigns, and the geographic separation as one organization is based in Florida the other is based in Kansas,” Drake said in a statement.

Lloyd Mayer, a professor at Notre Dame Law School, said because it isn’t a charity, We Build the Wall Inc. can publicly endorse Kobach, publish a voter guide grading him favorably on issues and engage in other election-related activity— as long as it does not coordinate with the candidate directly.

“Election-related activities must not be the primary activity of the nonprofit in order for it to still qualify as a 501(c)(4),” Mayer said, “but here that should not be an issue since I understand the nonprofit’s major activity is actually constructing portions of the wall.”

Ultimately, said former IRS official Hackney, even if Kobach operates We Build the Wall as “his campaign’s alter ego” it is unlikely the Internal Revenue Service would do anything about it.

“I don’t think the IRS will do jack,” he said. “The difficulty is that Republicans are in power now, so I don’t think the IRS wants to touch 501c4s. So as a practical matter, Secretary Kobach runs little risk of the organization losing its tax exempt status if he uses it for his own benefit.

“The law is still there. It applies. But I don’t think there’s any interest in applying it.”

Shorman reported from Topeka. Hancock reported from Jefferson City. Vockrodt reported from Kansas City. Lowry contributed reporting from Washington.

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Jonathan Shorman covers Kansas politics and the Legislature for The Wichita Eagle and The Kansas City Star. He’s been covering politics for six years, first in Missouri and now in Kansas. He holds a journalism degree from the University of Kansas.
Steve Vockrodt is an award-winning investigative journalist who has reported in Kansas City since 2005. Areas of reporting interest include business, politics, justice issues and breaking news investigations. Vockrodt grew up in Denver and studied journalism at the University of Kansas.