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:

 

 

 

President Obama Appoints James O’Brien as First Special Presidential Envoy for Hostage Affairs

Posted: 1:34 pm EDT

On August 28, President Obama announced the appointment of James O’Brien as Special Presidential Envoy for Hostage Affairs. The WH released the following brief bio:

James O’Brien is Vice Chair of the Albright Stonebridge Group.  Mr. O’Brien joined the Albright Group in 2001 as a Principal.  Prior to that, Mr. O’Brien served at the Department of State in a number of positions from 1989 to 2001, including Special Advisor to the President and Secretary of State for Balkan Democracy, Senior Advisor to Secretary of State Madeleine Albright, and Principal Deputy Director in the Office of Policy Planning.  He began his career at the State Department in 1989 as Attorney-Adviser in the Office of the Legal Adviser.  Mr. O’Brien received a B.A. from Macalester College, an M.A. from the University of Pittsburgh, and a J.D. from Yale Law School.

Special envoys are typically not subject to Senate confirmation.  Secretary Kerry also made the following remarks on Mr. O’Brien’s appointment:

On behalf of the State Department, I welcome the appointment of Jim O’Brien as the first Special Presidential Envoy for Hostage Affairs. Jim is exactly the right person for a job that demands a high level of diplomatic experience and the ability to analyze and find effective remedies to complex problems.

The creation of this new post stems from the U.S. government’s comprehensive hostage policy review which was completed earlier this summer. That review recognized the need for fully coordinated action across U.S. agencies in responding to hostage situations and to the military, diplomatic, legal, and humanitarian issues that such situations generate.

In his new position, Jim will be focused on one overriding goal: using diplomacy to secure the safe return of Americans held hostage overseas. To that end, he will be in close contact with the families of American hostages, meet with foreign leaders in support of our hostage recovery efforts, advise on options to enhance those efforts, participate in strategy meetings with other senior U.S. policymakers, and represent the United States internationally on hostage-related issues. The new Special Presidential Envoy will work closely with the interagency Hostage Recovery Fusion Cell that was also created as a result of the hostage policy review.

Jim O’Brien is currently Vice Chair of the Albright Stonebridge Group, a global strategy and business advisory firm. Previously, he served as Special Presidential Envoy for the Balkans during the late 1990s, helping to chart a path out of the military and political strife that divided the region. He also served as Deputy Director of the State Department’s Office of Policy Planning and as a senior adviser to UN Ambassador and Secretary of State Madeleine Albright. In those capacities, he helped to formulate the 1995 Dayton Accords, which ended the war in Bosnia; and guided U.S. support for the International Tribunal for the Former Yugoslavia, which helped bring to justice persons responsible for war crimes and crimes against humanity.

Jim O’Brien is a person of proven diplomatic skill with a strong commitment to the peaceful resolution of disputes and to justice. I congratulate him on his new assignment and I have made clear to him that he can count on my full support – and that of the entire State Department – in fulfilling his vital mission.

Mr. O’Brien’s biography is available here via the Albright Stonebridge Group (ASG).

ASG provides strategic advise and commercial diplomacy and is headed by former secretary of state, Madeleine K. Albright, former National Security Advisor to President Bill Clinton, Samuel R. Berger and former U.S. Secretary of Commerce from 2005 to 2009 under President George W. Bush, Carlos M. GutierrezWendy Sherman, the current Under Secretary of State for Political Affairs, the fourth-ranking official at State was previously vice chair of ASG.

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State/OIG Inspects US Mission Japan: Oh, Heck, Where Do We Start?

Posted: 1:35 pm EDT

 

State/OIG released it inspection report of the U.S. Embassy in Tokyo and its constituent posts.  The OIG made 65 recommendations intended to improve Embassy Tokyo’s operations and programs.  Mission Japan is headed by Ambassador Caroline Kennedy who arrived in November 2013, and her DCM,  Jason P. Hyland who arrived in June 2014. Mr. Hyland’s predecessor is not named in the report. Prior to this inspection, US Mission Japan was last reviewed in early 2008, and a report was issued in June 2008 (link to that report at the bottom of this post).

US Embassy Japan from diplomacy.state.gov

Let’s start with the key findings:

 The Department of State has not addressed security problems, including vulnerabilities which the Office of Inspector General identified in previous inspection reports.

 The role and authorities of the Ambassador’s chief of staff are not clearly defined, leading to confusion among staff as to her level of authority, and her role in internal embassy communications.

 The embassy’s focus on daily reporting of political and economic developments comes at the expense of building a broad network of contacts and providing in-depth analysis for policy formulation.

 The embassy is not coordinating reporting and diplomatic engagement across the mission. Constituent posts in Sapporo, Nagoya and Osaka-Kobe need to be brought up to the high standards set by posts in Fukuoka and Naha.

 The level of U.S. direct-hire staffing in the embassy’s political, economic, and consular sections is greater than workload warrants.

 The public affairs section faces major management challenges, but has begun to focus on educational exchanges and staffing adjustments to cope with the high visitor load and public outreach needs.

 American Presence Post Nagoya should cease offering routine consular services; consular operations in Fukuoka and Sapporo are inefficient.

 Although the embassy’s management section has made significant progress on cost containment, senior managers should pay greater attention to management controls over travel and official residence allowances.

 Office of Inspector General inspectors identified $122,665 in cost savings and $2,331,787 in funds put to better use during the inspection.

Overview of the mission:

Mission Japan is one of the U.S. Department of State’s (Department) most important missions in terms of its size and the U.S. interests for which it is responsible. The mission includes 13 U.S. Government agencies and 5 constituent posts: consulates general in Osaka-Kobe and Naha, consulates in Sapporo and Fukuoka, and an American Presence Post1 in Nagoya. The mission also includes the Foreign Service Institute language school in Yokohama. Headquarters of U.S. Forces Japan are located nearby at Yokota Air Base, and various U.S. military commands are located throughout the mainland and on Okinawa. The mission has 272 U.S. direct-hire employees and total employment of 727. In FY 2014, total funding for the mission, including other agencies, was $93.6 million. U.S. direct-hire employees were receiving a 25- to 35-percent cost-of-living allowance based on location at the time of the inspection.

Now, the good news:

  • Good Scores for Ethics | The Ambassador has made clear to the bureau’s executive office, the management officers at Embassy Tokyo, and her front office staff that she wants all her activities to be conducted in accordance with U.S. Government regulations. This was borne out by the fact that the highest score she received from staff members who completed a personal questionnaire was for her ethical behavior.
  • Hague Convention Accession | Japan is second only to Mexico in the number of children abducted from the United States. Japan’s accession to The Hague Convention on International Parental Child Abduction in 2014 was a significant development, due in no small part to Embassy Tokyo’s efforts to encourage Japan to join.
  • EFM Employment | A de facto work agreement with the Government of Japan allows family members to apply for work permits with strict rules governing employment. Twenty-seven eligible family members are employed inside the mission, and 34 eligible family members are employed outside the mission, mostly as English teachers.
  • RSO:  The Tokyo regional security office is responsible for the security and emergency preparedness of a large geographically dispersed diplomatic mission. In discussions and interviews with embassy staff members, the OIG team was told repeatedly that the regional security office is responsive to their needs. Accomplishments of the senior regional security officer include reinvigorating the law enforcement working group, updating and drafting missing or outdated security policies, and implementing modifications to the local guard contract that save the Department approximately $230,000 annually. The regional security office staff uniformly describes the senior regional security officer as a good mentor and communicator.
  • Cost Containment: In 2014, to contain cost, the embassy transferred 70 percent of its voucher processing to the Department’s regional voucher processing center. The cost to process a voucher in Japan is three times higher than at the regional center. The transfer resulted in the elimination of at least two voucher examiner positions.

And the not so good news, oh where do we start?

  • Leadership | A non-career Ambassador with wide experience in nongovernmental and publishing industries leads Embassy Tokyo. She sees the strengthening of mutual understanding between the Japanese and the American people and the deepening of the security alliance as her prime responsibilities. The Ambassador does not have extensive experience leading and managing an institution the size of the U.S. Mission to Japan. She relies upon two key senior staff members—her non-career chief of staff and a career Senior Foreign Service deputy chief of mission (DCM)—to make sure that Embassy Tokyo and its constituent posts receive the resources and guidance they need to conduct day-to-day operations. The chief of staff, who has extensive experience in public relations and has worked with the Ambassador over a period of years, organizes special projects for the Ambassador, coordinates functions within the embassy, and oversees embassy staff interactions with the Ambassador. The DCM, who arrived in Tokyo 6 months before the start of the onsite inspection process, focuses on internal management of the embassy and coordination with the constituent posts.
  • Communication Between the Front Office and Embassy Sections Needs Improvement.
  • High Visibility Ambassador Puts a Strain on Some Embassy Elements
  • Role of Chief of Staff Needs Refinement
  • The Deputy Chief of Mission Should be More Proactive in Exercising Leadership

The leadership section does not include discussion on training, mentoring, and professional development of First and Second Tour (FAST) officers, or mission morale. The report says that “four of seven officers in the public affairs section assigned to Tokyo have left post before their tour end date.”  There’s a term for that; it’s called curtailment.  A non-career chief of staff, a PR person, who has a large sway in the functioning of this embassy is not named in this report.  And just before the arrival of the inspectors, the front office apparently had made some headway on improving communication by holding a town hall meeting to unveil the revised memo outlining the activities the Ambassador would undertake. The report is not clear if this is the ambassador’s first town hall meeting with embassy staff.

Political Section:

  • Minister Counselor Positions Under-Ranked
  • Economic Section Has Too Many Supervisors
  • Economic Section Portfolios Organized Poorly
  • Excess Staff in the Political and Economic Sections
  • Law Enforcement Working Group Lacks Political Context

Econ Section

  • Reporting and Advocacy Needed on Structural Reform
  • Economic Section Not Keeping Proper Records and Files
  • Embassy Tokyo does not have a current records management policy and does not enforce Department and Federal regulations on records management.

  • The economic section’s reporting relies heavily on media sources. On some policy developments, the OIG team found that embassy reporting did not add value to more timely reporting by the international press. Reporting was mostly single-sourced and did not evidence a range of contacts among Japanese business leaders, legislators or staff, political parties, academia, or other economic leaders or decision makers, as intended by 2 FAM 113.1 c (10) and (11).

Consular Section

  • Consular Officer Staffing Is Excessive
  • No Coordination of Consular Social Media
  • Inefficient Consular Operations in Fukuoka and Sapporo

Note that citizens of some countries including Japan, who are traveling to the U.S. for 90 days less for business or tourism may not need a visa as they are eligible for the Visa Waiver Program (VWP). This report says that Tokyo’s consular section, with 14 officers, has more officer positions than other consular operations of similar workload, with a high proportion of managers to entry-level officers.

Management Section:

  • Inconsistencies in Billing Methods Creates Confusion
  • Cashiering Violation and Fiscal Irregularity
  • Class B Cashier’s Cash Advance is Excessive
  • Salaries Inappropriately Paid Directly to Official Residence Expense Staff (this is a pretty common subject in OIG reports)
  • Position Descriptions Are Inaccurate
  • Delays in Processing Within-Grade Increases
  • In-House Post Language Program Is Not Cost Effective
  • No In-House Equal Employment Opportunity Training Provided to Staff
  • Allegations of Sexual Harassment Not Reported to the Office of Civil Rights
  • Unauthorized Use of Motor Pool Shuttle Services
  • Living Quarters Allowance Not in Compliance with the Foreign Affairs Manual
  • No Emergency Backup Generators at Some Constituent Posts
  • The Department’s Office of Fire Safety conducted visits in 2014. The report identified 83 deficiencies of which the mission has corrected 53.
  • Locally Developed Software Applications Not in Compliance
  • Emergency Communication Does Not Meet Department Standards
  • No Logs of Network Maintenance
  • Premium Class Train Travel Policy Does Not Comply with Department Regulations
  • Extra Travel Costs Inappropriately Approved for Using Indirect Routes
  • USCG Naha: Inappropriate Use of Official Residence Expense Funds Instead of Representation Funds

Public Affairs

The OIG report says that in the past 8 months, four of seven officers in the public affairs section assigned to Tokyo have left post before their tour end date. That’s called curtailment. Unless they were all medevaced.

  • Embassy’s 11-person Media Analysis and Translation Team Lacks a Clear Mandate | Without a survey of the MATT’s customers, the embassy cannot confirm who—if anyone—is reading its products or justify the $1.25-million annual cost of operating the MATT.
  • Social Media Lacks Coordination| Several LE staff members work separately with social media, resulting in a multiplicity of uncoordinated messages
  • Grants Management Not in Compliance
  • No Public Diplomacy Strategy
  • The public affairs section was told to take a 26-percent cut. This reduced the public diplomacy allotment from $11.5 million in FY 2011 to $8.6 million in FY 2012. Even at that reduced rate, Mission Japan’s public affairs budget was still the largest in the Bureau of East Asian and Pacific Affairs. As a result of these budget cuts, the public affairs section eliminated 17 LE staff positions. The public affairs section allocated 68 percent of its FY 2014 budget of $8.5 million to LE staff salaries. According to the Under Secretary for Public Diplomacy and Public Affairs, this is high by world standards. […]The Ambassador selected the country public affairs officer, who arrived in Tokyo in August 2014, to stabilize the public affairs section, end the curtailments, define LE staff duties in order to clarify the new distribution of duties following the 2012 staff cuts, bring transparency to personnel decisions, and get the entire staff’s commitment to move forward. Since the public affairs officer’s arrival, the public affairs section has had considerable success, particularly with programs on educational exchange and women’s issues

A few more items with notable details extracted from the report:

Commercial Email Usage |  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.

Employee Evaluation Reports do not Reflect Demonstrated Weaknesses | The OIG team reviewed a range of Department employee evaluations written by managers at the U.S. Mission to Japan. They found several examples of evaluations that did not reveal any indication of serious weaknesses, even though the rated officers had required in-depth management and or discipline by their supervisors and had absorbed time and resources from senior embassy officers. The DCM, having been at post only 6 months, has not yet produced employee evaluations. The inspectors advised him to make clear to rating officers that employee evaluations must present an accurate record of each staff member’s strengths and a realistic area for improvement.

Yokohama Language Program Cost-Benefit Analysis Lacking | To provide Japanese-language instruction in Yokohama, it costs the Department an estimated $2.3 million per year. The total cost of operating the school, factoring out fixed expenses, such as leasing residences for the students, post allowance, education allowance, the school director’s salary and benefits, and other sunk costs, is $1 million per year. This translates into a per-student cost of from $83,583 to $200,599 for a student body of from 5 to 12 students. The Department could be incurring higher costs for providing language services.

No Justification for Paying Post Allowance to Family Member Appointees | Worldwide, Embassies London and Tokyo are the only two authorized to pay post allowance to family member appointees. In 2001, the Department granted them an exception on the basis of their inability to recruit individuals for family member positions because of lower salaries and wages, in accordance with 3 FAM 8218.1 c. In Japan, these adverse employment conditions no longer exist. Except for security escort positions, the embassy has had no difficulty filling family member positions. It also has been able to fill some of its LE staff vacancies with eligible family members when they meet all position requirements. The cost impact to the embassy of providing the post allowance to nine full-time family members is $59,190, annually.

Consulate General Naha Not Benefiting from Zero Cost Leasing Offer | In February 2010, the Open Source Center located on the U.S. Army’s Torii Station offered four Government-owned houses located on Kadena Air Base to Consulate General Naha at zero leasing costs. Consulate General Naha has not fully considered this offer. The OIG team estimates accepting the Open Source Center’s offer would save leasing costs of $110,665 per year. The embassy would continue to fund utility and make-ready costs. In Naha, U.S. direct hires already use base services, including the commissary, Post Exchange, and other support services. U.S. direct-hire dependents attend Department of Defense schools. According to 15 FAM 228 b, housing selection should achieve maximum cost benefit to the U.S. Government, and every effort should be made to lease appropriate housing with terms that reflect the likelihood of the housing unit remaining in posts inventory, with lease terms of 5 years or more whenever appropriate.

Private Domestic Staff Inappropriately Housed in U.S. Government-Owned Facility | The embassy continues to house private domestic staff of U.S. direct-hire officers in a separate U.S. Government-owned facility (the former U.S. Marine Dormitory) despite a 2008 Office of Legal Counsel’s opinion cautioning that the legality of operating living quarters for private domestic servants of U.S. Government employees on U.S. Government premises is highly doubtful under Federal appropriations/employment law. The presence of such facilities on U.S. Government-controlled real property also raises liability issues under employment law and tort law. The embassy raised concerns about prior fraudulent domestic staff employment contracts, use of appropriated funds to maintain the facility and collection of utilities reimbursements through the employees association as a probable violation of appropriation law. At the time of inspection, 42 domestic staff resided in the 31-room U.S. Government-owned building designated for domestic staff. According to 15 FAM 244, post personnel may house full-time domestic staff in their own U.S. Government-provided quarters if space is available and approved by the regional security officer. The estimated cost of maintaining the facility is $60,000 per year.

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Related items:

OIG_ISP-i-15-35a JAPAN Aug 25, 2015

OIG – U.S. Embassy Tokyo, Japan and Constituent Posts June 2008

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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Senate Judiciary Sets Sight on Allegations Over Huma Abedin’s State Dept Employment, Senate Hold On

Posted: 4:33  pm EDT

On July 30, Senator Charles E. Grassley , the Judiciary Committee chairman  wrote a letter to Secretary Kerry saying it has learned that State/OIG has opened an investigation to examine the circumstances of Ms. Abedin’s work arrangements, leave status, and conversion from a full-time Department of State employee to a Special Government Employee (SGE) and Senior Advisor to former Secretary Clinton. He writes that the “OIG found at least a reasonable suspicion of a violation of Title 18, United States Code, Section 641, theft of public money through time and attendance fraud, and Title 18, United States Code, Section 208, acts affecting a personal financial interest related to conflicts of interest connected to her overlapping employment as an SGE and her employment at Teneo and at the Clinton Foundation. The Judiciary Committee first inquired about related issues in June 2013.”

The letter outlines questions and allegations related to Conflicts of Interest and Special Treatment, and Improper Designation as an SGE (special government employee). The letter is quite particular, using specific terms like “baby moon,” “out of the office,” “going out of town,” “maternity leave,” and inquiring about Ms. Abedin’s stay at the US Ambassador’s residence in Rome. Here’s a list of what the Committee is interested in:

To aid the Committee in its investigation of these allegations, please provide the following:

  1. All documents and communications referring or relating to time and attendance for Ms. Abedin, all approved timesheets, leave requests, and any requests for paid or unpaid excused absences or administrative leave.
  2. All documents and communications referring or relating to Ms. Abedin having applied for or having received approximately $33,000 for unused leave.
  3. All documents and communications referring or relating to Ms. Abedin having applied for or having received compensation for unused leave.
  4. All documents and communications between or among Ms. Abedin and any employees, clients, or other affiliates of Teneo.
  5. All documents and communications referring or relating to time and attendance for Ms. Mills, all approved timesheets, leave requests, and any requests for paid or unpaid excused absences or administrative leave.
  6. All documents and communications between or among Ms. Abedin and any employees or other affiliates of the Clinton Global Initiative.
  7. All documents and communications between or among Ms. Abedin and any employees or other affiliates of the Clinton Foundation.
  1. All documents and communications forwarded by Ms. Abedin to a non-State Department e-mail address.
  2. All documents and communications between or among Ms. Mills, Ms. Abedin or Secretary Clinton referring or relating to Ms. Abedin’s leave requests or time and attendance, including the mentioning of Ms. Abedin being “out of the office,” “going out of town,” “maternity leave,” “annual leave,” “sick leave,” “baby moon,” or other similar statements.
  3. All documents and communications referring or relating to the Office of Inspector General investigation into Ms. Abedin.
  4. A description of Ms. Abedin’s duties at the Department of State before her designation as an SGE.
  5. A description of Ms. Abedin’s duties at the Department of State after her designation as an SGE.
  6. All documents and communications previously requested by this Committee relating to communications between or among the Department of State, Teneo, and Mr. Band. Additionally, please provide a written explanation as to why these records have been withheld to date.
  7. All documents and communications referring or relating to Ms. Motley’s meeting with Secretary Clinton that allegedly resulted in the granting of Ms. Abedin’s SGE designation.
  8. All documents and communications referring or relating to Ms. Abedin’s stay at the U.S. Ambassador to Italy’s residence in Italy and her trip to France in 2011.
  9. Did the Department search for or consider any other candidates besides Ms. Abedin for the SGE-expert position requiring expert knowledge on policy, administrative, and other matters? If so, please provide the supporting documentation. If not, why not?
  10. A list of all other instances in which a Department of State employee converted from a regular, full-time position to an SGE, and subsequently became simultaneously employed by a private company.
  11. All work papers, background documents, and communications relating to whether Ms. Abedin’s employment as an SGE presented any ethical concerns or conflicts of interest with her multiple private sector jobs.

The full letter is available to read here: CEG to State (Abedin Annual Leave SGE), 7-30-15-3

And because this is not going to end anytime soon, the HuAb investigation has now turned into a Senate hold for the nomination of the Assistant Secretary of State for Conflict and Stabilization Operation (State/CSO); a bureau which appears to be in fundamental crisis. Having the top nominee snared in a Senate hold is not going to help the already problematic bureau, is it?

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According to time.com, the State Department has provided five letters since 2013 in response to Grassley’s inquiries about everything from its use of SGE designations to Clinton’s use of a private e-mail server. But Grassley says those letters have been incomplete and that the department has willfully withheld responsive materials, demonstrating “a lack of cooperation and bad faith in its interaction with Congress.”

Grassley filed a “Notice of Intent to Object” in the Congressional record on August 4 signifying his intent to block the  nomination of career foreign service officer David Malcolm Robinson , of Connecticut, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be an Assistant Secretary of State (Conflict and Stabilization Operations).

Senator Grassley is quoted in the Time’s report as saying that Robinson was “an innocent victim” of the State Department’s “contemptuous failures to respond to Congressional inquiries.” Grassley also said the department “has engaged in unreasonable delay in responding to Judiciary Committee investigations and inquiries” including the Abedin issue.

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Related posts: 

 

State/OIG Report on ECA Program – Whew! What a relief that this is so boring to everyone!

Posted: 4:08  am EDT

 

On October 24, 2009, the AP reported the following:

The State Department’s internal watchdog concludes in a new report that the nation’s student foreign exchange programs need better federal oversight, after a scandal in which students were placed in shoddy homes in Pennsylvania.

The State Department’s acting inspector general, Harold W. Geisel, said in the report that the department’s Bureau of Educational and Cultural Affairs had largely abdicated its responsibility to ensure the well-being of thousands of exchange students who come to the United States each year.

The day before, the acting State/ECA boss wrote an email to Cheryl Mills on the IG report press coverage:

Via foia.state.gov

 

Screen Shot 2015-08-04

Email in pdf here.

Maura Pally is the the Senior Vice President, Women and Youth Programs, and serves as Acting CEO a the Clinton Foundation.  Previously, she served as Acting Assistant and Deputy Assistant Secretary of State for Educational and Cultural Affairs (ECA). Prior to joining the U.S. Department of State, she also served as deputy counsel for Secretary Clinton’s first presidential campaign.

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Reuters: State Department watered down human trafficking report

Posted: 3:45  am EDT

 

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In the weeks leading up to a critical annual U.S. report on human trafficking that publicly shames the world’s worst offenders, human rights experts at the State Department concluded that trafficking conditions hadn’t improved in Malaysia and Cuba. And in China, they found, things had grown worse.

The State Department’s senior political staff saw it differently — and they prevailed.

A Reuters examination, based on interviews with more than a dozen sources in Washington and foreign capitals, shows that the government office set up to independently grade global efforts to fight human trafficking was repeatedly overruled by senior American diplomats and pressured into inflating assessments of 14 strategically important countries in this year’s Trafficking in Persons report.

In all, analysts in the Office to Monitor and Combat Trafficking in Persons – or J/TIP, as it’s known within the U.S. government — disagreed with U.S. diplomatic bureaus on ratings for 17 countries, the sources said.

The analysts, who are specialists in assessing efforts to combat modern slavery – such as the illegal trade in humans for forced labor or prostitution – won only three of those disputes, the worst ratio in the 15-year history of the unit, according to the sources.

As a result, not only Malaysia, Cuba and China, but countries such as India, Uzbekistan and Mexico, wound up with better grades than the State Department’s human-rights experts wanted to give them, the sources said. (Graphic looking at some of the key decisions here: reut.rs/1gF2Wz5)
[…]
The final decision on disputed rankings this year was made in meetings attended by some of the State Department’s most powerful diplomats, including Deputy Secretary of State Tony Blinken, Under Secretary of State for Political Affairs Wendy Sherman and Kerry’s Chief of Staff, Jonathan Finer, according to the sources.

Read in full here.

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Related item:

-07/27/15  Under Secretary of State for Civilian Security, Democracy, and Human Rights Sarah Sewall on the 2015 Trafficking in Persons Report;  Under Secretary for Civilian Security, Democracy, and Human Rights Sarah Sewall; Washington, DC

Clinton Email Staffing Pitches: Loyal and years of successfully making high ranking govt officials look good

Posted: 7:08 pm EDT

 

Another end of the month, another Clinton email dump. Below via foia.state.gov:

The Department is conducting a Freedom of Information Act (FOIA) review of all emails provided by former Secretary Hillary Rodham Clinton. Starting in June 2015, a new set of emails from this collection will be released on this site at the end of each month. These monthly releases will continue until the entire collection of records is reviewed for public release, and all releasable records will be available on this site.

In May 2015, the Department released a set of 296 of these documents which previously had been provided in February 2015 to the House Select Committee on Benghazi. These and additional emails released in coming months from this collection will be available here.

On December 1, 2008, President-elect Obama formally announced that Clinton would be his nominee for Secretary of State. On January 21, 2009, Clinton was confirmed in the full Senate by a vote of 94–2. The emails we have looked at so far from this latest dump are from the start of her tenure with routine staffing issues, folks looking for jobs, people recommending others, stuff like that. There are some interesting ones:

 

This is a June 2009 email to HRC chief of staff Cheryl Mills from an individual (name redacted) seeking other opportunities at the State Department.  Remember this pitch … “years of successfully making high ranking government officials look good.”

cinton email dump july 31 2015

 

Here is an email from an individual (name redacted) “applying for a job” sent to Nicholas Blair, son of former UK PM Tony Blair, forwarded to Cherie Blair, who then forwarded the resume to HRC:

Screen Shot 2015-07-31

 

If the secretary of state wants to hire you, it’s only a question of tasking someone to find a slot for you at WHA, S/P (policy planning shop) or elsewhere, really — but “someone who lacks discretion is not possible.”

Screen Shot 2015-07-31

 

State/OBO’s very difficult time and what looks like a staffing pitch in 2009 from “M”:

Screen Shot 2015-07-31

 

In September 2009, then US Ambassador Susman in London sent an email to Cheryl Mills about a Schedule C appointee referred for a Special Assistant job to the ambassador. Ambassador Susman writes that the individual “was so overqualified for the position we need to fill” and that he appointed the individual to a [REDACTED] which the individual was apparently “very excited about.” Ambassador Susman attached the individual’s letter to him and forwarded it to Ms. Mills.  A Schedule C at every groovy embassy? Since when did we start hiring Schedule C appointees for overseas missions? Is this some big gun or some kid of some big gun, you think?  Schedule C positions are excepted from the competitive service because of their confidential or policy-determining character. Most such positions are at grade 15 of the General Schedule or lower.

Screen Shot 2015-07-31 at 3.36.33 PM

There’s more but gotta make dinner.  In any case as early as May 2009, just four months into her tenure, folks were already talking about 21st statecraft as a “major part of HRC’s legacy.”

Screen Shot 2015-07-31

 

Our favorite email, if we could pick one, is probably the one sent by Huma Abedin to HRC in November 2009 about Kurt somebody who did not want his sleep disturbed:Screen Shot 2015-07-31

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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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