Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?

Posted: 2:40 am EDT

 

Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not? That’s the question asked during the August 31 press briefing at the State Department.

QUESTION: Two other quick things. One is: Do you believe as a general matter that the Secretary of State, whomever he or she may be, is bound by the rules in the Foreign Affairs Manual or not? I mean, it may be that they’re not, that they have sort of a status that’s different and that therefore they have the rights to not follow it.

MR TONER: I mean, I would just say that every State Department employee from the Secretary on down takes the handling of classified information very seriously and is aware of the rules surrounding those classification standards.

In reading these excerpts, it is useful to remember the  State Department’s Most Candid Nugget.  A bit later, another one tried asking this again:

QUESTION: On the thing that everybody is obliged to – I mean, can you not address squarely whether the Foreign Affairs Manual applies to the Secretary of State or not?

MR TONER: I mean, I can say that, again, we, from the Secretary on down, take the handling of classified materials and the rules surrounding those – so I mean in that sense, including the Foreign Affairs Manual but also other regulations, stipulations, training that we undergo in how to handle classified and confidential information.

QUESTION: You take them —

MR TONER: Seriously. I’m sorry.

QUESTION: But does that mean that you’re bound by them?

MR TONER: We’re all bound by – how we treat classified information is, as I said, an important component of the work we do, but I’ve also made clear that when you look at classified material it is not an exact science, it’s not black and white, it’s not always clear, so there’s strong feelings and different beliefs about when something is classified, whether it’s born classified, whether it should be classified later. These are all questions that are being answered in a deliberative and a thorough way that we’re looking at that’s not somehow some cabal of people in a small room somewhere making these decisions. It’s an interagency process. It involves the IC, it involves other agencies as it touches their equities. So that’s our focus.

QUESTION: Mark, since you just said those —

MR TONER: Please, go ahead.

QUESTION: — rules and standards are so important that everyone in this building has to follow them, can you say from that podium categorically that Secretary Clinton followed the rules and the law?

MR TONER: I’m just not going to answer that question. It’s not our goal, it’s not our function in this regard in releasing these emails. Our goal and our sole purpose when we look at these emails is to decide – well, first to publish them according to the FOIA request that we have received. But in doing that, looking at them and deciding whether any of that material needs to be redacted and subsequently classified.

QUESTION: Isn’t it a little odd that the State Department can’t state categorically that the Secretary of State followed the rules?

MR TONER: All I can say is that there are – and I’ve alluded to there – I’ve not alluded to it, I’ve said as much to Arshad: There are other reviews, and that’s really for the inspector general and other entities who are out there looking at some of these broader questions.

Click here for the DPB | August 31, 2015.

The first question starts with “Do you believe …”  They can pin Mr. Toner to the wall with giant thumb tacks but we doubt very much if they can pry a straight answer out of him on this one.  What he believes is immaterial. What the building believes is what counts. And for that, we think you’d have to go ask the Legal Adviser.

Oops, wait! Brian Egan nominated to succeed Harold Hongju Koh is still stuck in the Senate confirmation process. Originally nominated in September 2014, Mr. Egan has now waited 347 days for his Senate confirmation. He had been renominated once before on January 16, 2015 when his nomination was not acted by the Senate last year.

While the Office of the Legal Adviser (without a Senate-confirmed Legal Adviser) has not released an opinion on this subject, it apparently told the OIG that the Foreign Affairs Manual‘s disciplinary provisions do not apply to political appointees as they are “not members of the Foreign Service or the Civil Service.”

The January 2015 OIG report Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

Hey, if there’s a shootout between “L” and “M”, who wins?

Okay, first, how can Legal only cites the FAM’s disciplinary provisions? The Foreign Affairs Manual is the rules book for the agency. If the disciplinary provisions do not apply to political appointees, what other parts of the FAM do not apply to them?

Can they ship construction materials with their household effects, for instance? Can they change their workdays so they only have to work Tuesdays through Thursdays and have four day weekends every week? Can they travel first class without using U.S. air carriers? Are they obligated to account for their own conduct, whether on or off their jobs? Are they allowed to accept and retain gifts given to them by foreign governments? Can they speculate in currency exchange? Can their spouses work anywhere they want? Are they allowed to invest in real estate in their host countries? And on and on and on.

So if we follow the Office of Legal Adviser’s opinion to its logical conclusion, the Secretary of State, if a political appointee is also not subject to the FAM, yes?

That’s a dreadful opinion, by the way. It puts a politically appointed secretary of state and politically appointed American ambassadors in the enviable position of rallying the troops with “follow what I say, not what I do.” Because, if that’s the case, political appointees can do anything — fundraise overseas, for example — and not have consequences, while regular employees doing exactly the same thing could be penalized.  Or they/their spouses can ship goodies for private gain using the diplomatic pouch and not have any penalty while a career FSO’s spouse would surely be penalized for doing the same thing. And if political appointees are not subject to the Foreign Affairs Manual because they “are not members of the Foreign Service or the Civil Service” the questions then become 1) why are they in the Foreign Service or Civil Service pay scale? and 2) if not the FAM, which rules are they supposed to adhere to?

Of course, this could also mean that if a Foreign Service officer is appointed Secretary of State, he/she would then be subject to the FAM because he/she is a career member of the diplomatic corps. Not that there’s any great danger of that happening. Lawrence Eagleburger is the only career Foreign Service Officer to have served as Secretary of State (appointed Secretary of State on December 8, 1992, and continued in that position until January 19, 1993). But see why that L opinion is troubling?

In any case, we do think this is an important question that ought to have a simple answer.

Except that it doesn’t.

Is the Secretary of State bound by the rules of the Foreign Affairs Manual? 

During the September 1 DPB, a reporter revisited this once more:

QUESTION: It’s a question that I asked the other day and I’d like to ask if the State Department will take a policy decision on this, not with regard to Secretary – former Secretary Clinton, but with regard to current and past secretaries of state, and that is whether it is the view of the Department that the Secretary of State is bound by the rules laid out in the Foreign Affairs Manual.

MR TONER: Okay. I mean, I —

QUESTION: As a general principle, do they apply to the Secretary of State or not, or do they apply selectively? That’s the question.

MR TONER: Okay. I will get you an answer for that.

We await with great interest Mr. Toner’s answer to this very straightforward question. We hope the reporters would keep asking this question. Every day until we all get an answer.

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Related posts:

 

 

 

Burn Bag: Who would The Trumpster appoint as ambassadors?

Via Burn Bag:

Watching U.S. Presidential races from overseas is excruciating. The only thing more horrifying than the prospect of President Trump is, who would he appoint for ambassadors? 

via GIPHY

 

State Dept’s Wibbly Wobbly Jello Stance on Use of Private Email, Also Gummy Jello on Prostitution

Posted: 1:38 am EDT

 

We’ve added to our timeline of the Clinton Email saga (see Clinton Email Controversy Needs Its Own Cable Channel, For Now, a Timeline).

On August 24, 2015, State Dept. Spokesman John Kirby told CNN:  “At The Time, When She Was Secretary Of State, There Was No Prohibition To Her Use Of A Private Email.” Below is the video clip with Mr. Kirby.

Okay, then. Would somebody please get the State Department to sort something out. If there was no prohibition on then Secretary Clinton’s use of a private email, why, oh, why did the OIG inspectors dinged the then ambassador to Kenya, Scott Gration for using commercial email back in 2012? (See OIG inspection of US Embassy Kenya, 2012).

Screen Shot 2015-08-25

Oh, and here’s a more recent one dated August 25, 2015. The OIG inspection of U.S. Embassy Japan (pdf) says this:

In the course of its inspection, OIG received reports concerning embassy staff use of private email accounts to conduct official business. On the basis of these reports, OIG’s Office of Evaluations and Special Projects conducted a review and confirmed that senior embassy staff, including the Ambassador, used personal email accounts to send and receive messages containing official business. In addition, OIG identified instances where emails labeled Sensitive but Unclassified6 were sent from, or received by, personal email accounts.

OIG has previously reported on the risks associated with using commercial email for official Government business. Such risks include data loss, hacking, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. Department policy is that employees generally should not use private email accounts (for example, Gmail, AOL, Yahoo, and so forth) for official business.7 Employees are also expected to use approved, secure methods to transmit Sensitive but Unclassified information when available and practical.8

OIG report referenced two cables, we’ve inserted the hyperlinks publicly available online: 11 STATE 65111 and 14 STATE 128030 and 12 FAM 544.3, which has been in the rules book, at least since 2005:

12 FAM 544.3 Electronic Transmission Via the Internet  (updated November 4, 2005)

“It is the Department’s general policy that normal day-to-day operations be conducted on an authorized [Automated Information System], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information.”

This section of the FAM was put together by the Office of Information Security (DS/SI/IS) under the Bureau of Diplomatic Security, one of the multiple bureaus that report to the Under Secretary for Management.

Either the somebodies were asleep at the switch, as the cliché goes, or somebody at the State Department gave authorization to the Clinton private server as an Automated Information System.

In any case, the State Department’s stance on the application of regulations on the use of private and/or commercial email is, not wobbly jello on just this one subject or on just this instance.

gummy-bears-o

dancing jello gummy bears

On October 16, 2014, State/OIG released its Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security. This review arose out of a 2012 OIG inspection of the Department of State (Department) Bureau of Diplomatic Security (DS). At that time, OIG inspectors were informed of allegations of undue influence and favoritism related to the handling of a number of internal investigations by the DS internal investigations unit. The allegations initially related to eight, high-profile, internal investigations. (See State/OIG Releases Investigation on CBS News Allegations: Prostitution as “Management Issues” Unless It’s NotCBS News: Possible State Dept Cover-Ups on Sex, Drugs, Hookers — Why the “Missing Firewall” Was a Big Deal).

One of those eight cases relate to an allegation of soliciting a prostitute.

The Foreign Affairs Manual (FAM) provides that disciplinary action may be taken against persons who engage in behavior, such as soliciting prostitutes, that would cause the U.S. Government to be held in opprobrium were it to become public.1

In May 2011, DS was alerted to suspicions by the security staff at a U.S. embassy that the U.S. Ambassador solicited a prostitute in a public park near the embassy. DS assigned an agent from its internal investigations unit to conduct a preliminary inquiry. However, 2 days later, the agent was directed to stop further inquiry because of a decision by senior Department officials to treat the matter as a “management issue.” The Ambassador was recalled to Washington and, in June 2011, met with the Under Secretary of State for Management and the then Chief of Staff and Counselor to the Secretary of State. At the meeting, the Ambassador denied the allegations and was then permitted to return to post. The Department took no further action affecting the Ambassador.

OIG found that, based on the limited evidence collected by DS, the suspected misconduct by the Ambassador was not substantiated. DS management told OIG, in 2013, that the preliminary inquiry was appropriately halted because no further investigation was possible. OIG concluded, however, that additional evidence, confirming or refuting the suspected misconduct, could have been collected. For example, before the preliminary inquiry was halted, only one of multiple potential witnesses on the embassy’s security staff had been interviewed. Additionally, DS never interviewed the Ambassador and did not follow its usual investigative protocol of assigning an investigative case number to the matter or opening and keeping investigative case files.

Department officials offered different justifications for handling the matter as a “management issue,” and they did not create or retain any record to justify their handling of it in that manner. In addition, OIG did not discover any guidance on what factors should be considered, or processes should be followed, in making a “management issue” determination, nor did OIG discover any records documenting management’s handling of the matter once the determination was made.

The Under Secretary of State for Management told OIG that he decided to handle the suspected incident as a “management issue” based on a disciplinary provision in the FAM that he had employed on prior occasions to address allegations of misconduct by Chiefs of Mission. The provision, applicable to Chiefs of Mission and other senior officials, states that when “exceptional circumstances” exist, the Under Secretary need not refer the suspected misconduct to OIG or DS for further investigation (as is otherwise required).2 In this instance, the Under Secretary cited as “exceptional circumstances” the fact that the Ambassador worked overseas.3

DS managers told OIG that they viewed the Ambassador’s suspected misconduct as a “management issue” based on another FAM disciplinary provision applicable to lower-ranking employees. The provision permits treating misconduct allegations as a “management issue” when they are “relatively minor.”4 DS managers told OIG that they considered the allegations “relatively minor” and not involving criminal violations.

Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.5

OIG questions the differing justifications offered and recommends that the Department promulgate clear and consistent protocols and procedures for the handling of allegations involving misconduct by Chiefs of Mission and other senior officials. Doing so should minimize the risk of (1) actual or perceived undue influence and favoritism and (2) disparate treatment between higher and lower-ranking officials suspected of misconduct.6 In addition, OIG concludes that the Under Secretary’s application of the “exceptional circumstances” provision to remove matters from DS and OIG review could impair OIG’s independence and unduly limit DS’s and OIG’s abilities to investigate alleged misconduct by Chiefs of Mission and other senior Department officials.

In the SBU report provided to Congress and the Department, OIG cited an additional factor considered by the Under Secretary—namely, that the Ambassador’s suspected misconduct (solicitation of prostitution) was not a crime in the host country. However, after the SBU report was issued, the Under Secretary advised OIG that that factor did not affect his decision to treat the matter as a “management issue” and that he cited it in a different context. This does not change any of OIG’s findings or conclusions in this matter. 

After the SBU report was issued, the Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)). 

During the course of that review, State/OIG said it discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials.

The OIG apparently, found no evidence that any of those inquiries were halted and treated as “management issues.”

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Also, have you heard?  Apparently, DEA now has an updated “etiquette” training for its agents overseas.

That’s all.

Is there a diplomatic way to request that the responsible folks at the State Department culture some real backbone in a petri-dish?

No, no, not jello backbone, please!

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U.S. Embassy Poland: Ambassador Steve Mull Flies in F-16, Reportedly Lands Top #IranDeal Job

Posted: 3:55 pm EDT

 

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Raising the Flag at U.S. Embassy Havana (Video)

Posted: 11:20 pm EDT

 

Ahead of the official flag raising at the US Embassy in Havana with Secretary Kerry this Friday, the State Department released the following 8:36 minute video featuring three former U.S. Marines assigned to Embassy Havana in 1961. The video is narrated by Ambassador Jeffrey DeLaurentis, our Charge d’Affaires to Cuba.

On January 4, 1961, U.S. Marines Jim Tracy, F.W. “Mike” East, and Cpl. Larry C. Morris assigned to U.S. Embassy Havana lowered the American flag outside the embassy for the last time. For 54 years, the soldiers’ warm affection for the Cuban people never wavered. And neither did their belief that, one day, they would reunite to raise the flag again. On August 14, 2015, these three U.S. Marines reunite and join Secretary of State John Kerry to re-open the U.S. Embassy in Havana, Cuba.

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UK Ambassador to Lebanon Signs Off With a Memorable Blog Post: So…Yalla, Bye

Posted: 12:58 am EDT

“The driving quest of diplomacy is for imperfect ways to help people not kill each other.”
-Tom Fletcher

The Naked Diplomat is done for now.  Tom Fletcher, the British Ambassador to Lebanon signed off from his diplomatic assignment recently. Quite a valedictory address blogpost. Excerpt below:

Dear Lebanon,

Sorry to write again. But I’m leaving your extraordinary country after four years. Unlike your politicians, I can’t extend my own term.

When I arrived, my first email said ‘welcome to Lebanon, your files have been corrupted’. It should have continued: never think you understand it, never think you can fix it, never think you can leave unscathed. I dreamt of Beirutopia and Leb 2020 , but lived the grim reality of the Syria war.

Bullets and botox. Dictators and divas. Warlords and wasta. Machiavellis and mafia. Guns, greed and God. Game of Thrones with RPGs. Human rights and hummus rights. Four marathons, 100 blogs, 10,000 tweets, 59 calls on Prime Ministers, 600+ long dinners, 52 graduation speeches, two #OneLebanon rock concerts, 43 grey hairs, a job swap with a domestic worker, a walk the length of the coast (Video). I got to fly a Red Arrow upside down, and a fly over Lebanon’s northern border to see how LAF is enforcing Lebanese sovereignty. I was even offered a free buttock lift – its value exceeded our £140 gift limit, so that daunting task is left undone.

Your politics are also daunting, for ambassadors as well as Lebanese citizens. When we think we’ve hit bottom, we hear a faint knocking sound below. Some oligarchs tell us they agree on change but can’t. They flatter and feed us. They needlessly overcomplicate issues with layers of conspiracy, creative fixes, intrigue. They undermine leaders working in the national interest. Then do nothing, and blame opponents/another sect/Sykes-Picot/Israel/Iran/Saudi (delete as applicable). They then ask us to move their cousin’s friend in front of people applying for a visa. It is Orwellian, infuriating and destructive of the Lebanese citizens they’re supposed to serve. But this frustration beats the alternative – given potential for mishap, terror or invasion, there is no substitute for unrelenting, maddening, political process.

Continue reading,  So…Yalla, Bye, running on over 300 comments right now.

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Kerry Visits Vietnam as US Embassy Hanoi Celebrates 20th Anniversary

Posted: 2:11 pm EDT

 

 

Photo from US Embassy Hanoi/FB

Photo from US Embassy Hanoi/FB

Diplomatic relations with Vietnam were established on February 17, 1950, when the Consulate General at Saigon was raised to Legation status with Edmund A. Gullion as Chargé d’Affaires ad interim.

In 1952, the United States Legation in Saigon was raised to Embassy status on June 24, 1952, when Ambassador Donald R. Heath received confirmation of his appointment from the United States Senate. The United States maintained its Embassy in Saigon and conducted diplomatic relations solely with the Government of South Vietnam, which in 1955 reorganized itself as the Republic of Vietnam.

The United States closed the Embassy in Saigon and evacuated all Embassy personnel on April 29, 1975, just prior to the surrender of South Vietnam to North Vietnamese forces.

According to history.state.gov, the United States opened a Liaison Office in Hanoi, the capital of a reunified Vietnam on January 28, 1995. Diplomatic relations were re-established July 11, 1995, and Embassy Hanoi was established with L. Desaix Anderson as Chargé d’Affaires ad interim. Ambassador Pete Peterson presented his credentials and assumed his post at the Embassy on May 14, 1997.

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Senate Confirms 14 Ambassador Nominees, Others Are Stuck For Now

Posted: 7:31 pm EDT

 

In the early evening of August 5, 2015, the U.S. Senate confirmed the following executive nominees by voice vote:

Executive Calendar # 198 David Hale, of New Jersey, to be Ambassador to the Islamic Republic of Pakistan.

Executive Calendar #199 Atul Keshap, of Virginia, to be Ambassador to the Democratic Socialist Republic of Sri Lanka, and to serve concurrently and without additional compensation as Ambassador to the Republic of Maldives.

Executive Calendar #200 Alaina B. Teplitz, of Illinois, to be Ambassador to the Federal Democratic Republic of Nepal.

Executive Calendar #201 William A. Heidt, of Pennsylvania, to be Ambassador to the Kingdom of Cambodia.

Executive Calendar #202 Glyn Townsend Davies, of the District of Columbia, to be Ambassador to the Kingdom of Thailand.

Executive Calendar #203 Jennifer Zimdahl Galt, of Colorado, to be Ambassador to Mongolia.

Executive Calendar #256 Sheila Gwaltney, of California, to be Ambassador to the Kyrgyz Republic.

Executive Calendar #257 Perry L. Holloway, of South Carolina, to be Ambassador to the Co-operative Republic of Guyana.

Executive Calendar #258 Kathleen Ann Doherty, of New York, to be Ambassador to the Republic of Cyprus.

Executive Calendar #259 Hans G. Klemm, of Michigan, to be Ambassador to Romania.

Executive Calendar #260 James Desmond Melville, Jr., of New Jersey, to be Ambassador to the Republic of Estonia.

Executive Calendar #261 Peter F. Mulrean, of Massachusetts, to be Ambassador to the Republic of Haiti.

Executive Calendar #262 Laura Farnsworth Dogu, of Texas, to be Ambassador to the Republic of Nicaragua.

Executive Calendar #264 Paul Wayne Jones, of Maryland, to be Ambassador to the Republic of Poland.

Executive Calendar #265 Michele Thoren Bond, of the District of Columbia, to be an Assistant Secretary of State (Consular Affairs).

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That’s it until September.  The Senate notes that “By unanimous consent, all the nominations received by the Senate during the 114th Congress, first session, remain in status quo, notwithstanding the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate.” The following nominees were cleared by the Senate Foreign Relations Committee but were not confirmed by the full Senate at this time:

  • Cassandra Q. Butts, of the District of Columbia, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Commonwealth of The Bahamas (cleared by the SFRC on May 21)
  • Azita Raji, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden. (cleared by the SFRC on June 10)
  • Brian James Egan, of Maryland, to be Legal Adviser of the Department of State, vice Harold Hongju Koh, resigned. (cleared by the SFRC on June 25)
  • Dr. Sarah Mendelson, of the District of Columbia, to be Representative of the U.S. on the Economic and Social Council of the U.N., with the rank of Ambassador, and Alternate Representative of the U.S. to the General Assembly of the U.N. (cleared by the SFRC on July 29)
  • Mr. Samuel D. Heins, of Minnesota, to be Ambassador to the Kingdom of Norway (cleared by the SFRC on July 29)
  • Ms. Gayle Smith, of Ohio, to be Administrator of the United States Agency for International Development (cleared by the SFRC on July 29)
  • Thomas O. Melia, of Maryland, to be an Assistant Administrator of the United States Agency for International Development, vice Paige Eve Alexander, resigned. (cleared by the SFRC on July 29)

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SFRC Clears 11 Ambassador Nominees and 1 Foreign Service List (181 Names)

Posted: 1:54 am EDT

 

On July 29th, the Senate Foreign Relations Committee (SFRC) cleared 11 ambassador nominees for  the State Department,  and two nominees for USAID, including Gayle Smith, nominated as Rajiv Shah’s successor as USAID administrator.  It also cleared 1 Foreign Service list with 181 names.

Sheila Gwaltney, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kyrgyz Republic.

Perry L. Holloway, of South Carolina, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Co-operative Republic of Guyana.

Kathleen Ann Doherty, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Cyprus.

Hans G. Klemm, of Michigan, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Romania.

James Desmond Melville, Jr., of New Jersey, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Estonia.

Peter F. Mulrean, of Massachusetts, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Haiti.

Laura Farnsworth Dogu, of Texas, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Nicaragua.

Samuel D. Heins, of Minnesota, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Norway.

Paul Wayne Jones, of Maryland, a Career Member of the Senior Foreign Service, Class of Career Minister, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Poland.

Michele Thoren Bond, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be an Assistant Secretary of State (Consular Affairs), vice Janice L. Jacobs, resigned.

UNITED NATIONS

Sarah Elizabeth Mendelson, of the District of Columbia, to be Representative of the United States of America on the Economic and Social Council of the United Nations, with the rank of Ambassador.

Sarah Elizabeth Mendelson, of the District of Columbia, to be an Alternate Representative of the United States of America to the Sessions of the General Assembly of the United Nations, during her tenure of service as Representative of the United States of America on the Economic and Social Council of the United Nations.

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

Gayle Smith, of Ohio, to be Administrator of the United States Agency for International Development, vice Rajiv J. Shah, resigned.

Thomas O. Melia, of Maryland, to be an Assistant Administrator of the United States Agency for International Development, vice Paige Eve Alexander, resigned.

PN573 – 1 FOREIGN SERVICE nominations (181) beginning Maura Barry Boyle, and ending Anthony Wolak, which nominations were received by the Senate and appeared in the Congressional Record of June 10, 2015.

The above ambassador nominees will join nine (9) other nominees previously cleared by the SFRC who are currently waiting for a vote in the full Senate. If these ambassador nominees are not confirmed before the Senate takes its August recess next week, they will be stuck in D.C. until after the Senate returns in early September.

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Ex-Gov Who Wanted Ambassadorship to India Just Got 5 of 18 Counts Thrown Out by Appeals Court

Posted: 12:24 am EDT

 

In December 2008, then Illinois Gov. Rod Blagojevich and his chief of staff, John Harris, were arrested for what U.S. Atty. Patrick Fitzgerald called a “political corruption crime spree” that included attempts to sell the U.S. Senate seat vacated by President-elect Barack Obama.  He was accused of talking on FBI recordings about plotting to extract a $1.5 million campaign contribution from U.S. Rep. Jesse Jackson Jr.—in exchange for appointing Jackson to Obama’s vacated seat. Via Politico:

A federal criminal complaint detailed Blagojevich’s attempt to cash in on his power to appoint Obama’s replacement by first attempting to arrange a presidential cabinet appointment. When that failed, Blagojevich hoped for an ambassadorship.

Specifically, India or South Africa …er, no, India.

Via Lapham's Quarterly

Via Lapham’s Quarterly

Just to show how little Blago and his chief of staff knew about the diplomatic service. Blagojevich in one recording says, “How much would you think a position like that would pay? I mean, again, this requires a lot of travel, it’s a lot of work. A reasonable…”  The chief of staff responds, “Well, I mean you’d get an expense account. So it’s not all in pay.”

In 2015, the caps for Senior Foreign Service pay is between $172,074 – $183,300. He would have received hardship and COLA differentials. They’re currently 20% + 10% respectively of basic pay for FS employees assigned in New Delhi. The ambassador’s expense account? Teh-heh! Best read Bloomberg’s The Economics of Being a U.S. Ambassador.

Poor sod probably did not realize that the Indian monsoon would also ruin his properly combed hat.

In any case, for those who were hoping that Blago’s case would temper similar arrangements in the future will be disappointed. On June 22, the United  States  District  Court  for  the Northern  District  of  Illinois dismissed five of the 18 counts and ordered that the former governor be resentenced. Below is an excerpt from the Appeals Court ruling dated July 21, 2015.

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge required for conviction.

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-­‐‑elect for a private-­sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one-­line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60–62 (2008) (an error of this kind is not “structural”).)

McCormick describes the offense as a quid pro quo: a public official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United States v. Sun-­Diamond Growers of California, 526 U.S. 398, 404– 05 (1999); United States v. McDonnell, 2015 U.S. App. LEXIS 11889 (4th Cir. July 10, 2015). A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D’s promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.

A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.

Let’s work this through statute by statute. Section 1951, the Hobbs Act, which underlies Counts 21 and 22, forbids interference with commerce by robbery or extortion. Blagojevich did not rob anyone, and extortion, a defined term, “means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right” (§1951(b)(2)). The indictment charged Blagojevich with the “color of official right” version of extortion, but none of the evidence suggests that Blagojevich claimed to have an “official right” to a job in the Cabinet. He did have an “official right” to appoint a new Senator, but unless a position in the Cabinet is “property” from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not “property” in the hands of a public agency. That’s equally true of public positions. The President-­elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure “property” from the President (or the citizenry at large).

Sekhar v. United States, 133 S. Ct. 2720 (2013), shows that the phrase “obtaining of property” in the Hobbs Act must not be extended just to penalize shady dealings. Sekhar holds that a recommendation about investments is not “property” under §1951(b)(2) for two principal reasons: first, in the long history of extortion law it had never before been so understood (similarly, political logrolling has never before been condemned as extortion); second, the making of a recommendation is not transferrable. The Court restricted “property” to what one owner can transfer to another. By that standard a job in the Cabinet (or any other public job) is not “property” from the employer’s perspective. It is not owned by the person with appointing power, and it cannot be deeded over. The position may be filled by different people, but the position itself is not a transferrable property interest. A position is “held” or “occupied” but not “obtained,” and under Sekhar something that cannot be “obtained” also cannot be the subject of extortion.

Section 666, the basis (through a conspiracy charge) of Count 23, forbids theft or bribery in publicly funded programs (of which the State of Illinois is one). Count 23 relies on §666(a)(1)(B), which makes it a crime for an agent of a covered organization to solicit “corruptly … anything of value” in connection with a transaction worth $5,000 or more. “Corruptly” refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or gratuity. United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015). It would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side.

[…]

So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job. That’s not a plausible understanding of §1346, even if (as is unlikely) it would be valid under the First Amendment as a criminal penalty for misleading political speech. And no matter what one makes of the subject, the holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-­trading. Skilling holds that only bribery and kickbacks violate §1346. So unless political logrolling is a form of bribery, which it is not, §1346 drops out.

The prosecutor insists, however, that Blagojevich’s situation is different and uncommon because he sought a post in the Cabinet for himself. It isn’t clear to us that this is unusual. The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President. Ambassadors, too, come from the House or Senate (or from state politics) as part of political deals.

Some historians say that this is how Earl Warren came to be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme Court.

[…]

If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison. Yet although historians and political scientists have debated whether this deal was made, or whether if made was ethical (or politically unwise), no one to our knowledge has suggested that it violated the statutes involved in this case. (Whether it might have violated 18 U.S.C. §599, and whether that statute is compatible with the First Amendment, are issues we do not address.)

Read in full here (pdf).

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