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.
When I wrote that Rawr piece in 2011, I wrote this:
I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers. And as far as I know, they have not technically kicked out anyone who blogs either — unless you call the “push” to retirement a payback kick.
Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog. Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.
A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008. That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee. But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:
The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.
Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.
The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.
The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”
In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”
While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:
1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009. An embassy is a fishbowl. Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years. State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.
2) Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows. After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation. “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral. I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?
3) When grievant departed Country X for a new post, her continued blogging activity prompted other Consular (CID) investigations. Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble. I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs. This is the first case where we’re seeing on paper what happens:
Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”
4) Beyond the consequences of not getting onward assignments, here’s the larger impact: “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…] We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”
5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.” \
Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated? While I can understand the department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees? When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?
According to a job announcement posted earlier this year, there are Foreign Service Regional Medical Officers/Psychiatrists assigned at the following locations:
District of Columbia
RMO/Ps also serve on temporary duty in high threat locations (e.g., Afghanistan, Iraq, Libya, Pakistan and Yemen etc.) and in post-disaster environments (e.g., post-earthquake Haiti, etc). The U.S. embassies in Libya and Yemen are currently on suspended operations, and temporarily located in Tunisia and Saudi Arabia respectively.
The latest available data on FS skills group published via afsa.org in 2013 indicates that the State Department has 24 psychiatrists and 4 mental health specialists. There are 275 overseas posts. As of 2014, there are 13,801 employees (FSOs – 8,042; Specialist – 5,759) and 11,701 adult family members overseas according to an April 2015 FLO data; a total FS population overseas of 25,202. If we include the Civil Service employees and the locally employed staff, the State Department has a total workforce of 71,782. Let’s try and do the math.
— That’s one psychiatrist/mental health specialist for every 492 Foreign Service employees.
— Or one psychiatrist/mental health specialist for every 900 FS employees and family members.
— Or one psychiatrist/mental health specialist covering at least nine diplomatic/consular posts overseas.
— Or one psychiatrist/mental health specialist for every 2,562 State Department employees domestic and overseas.
The 2015 Crime and Safety Report from the Regional Security Office released in May this year, notes that crime in El Salvador can run the gamut from credit card skimming to homicide and is unpredictable, gang-centric, and characterized by violence directed against both known victims and targets of opportunity. The effect and threat of violent crime in the capital city of San Salvador, including the neighborhoods in which many U.S. citizens live and work, leads to greater isolation and the curtailment of recreational opportunities. Crimes of every type routinely occur. U.S. citizens are advised to avoid travel into the downtown area of San Salvador “unless absolutely necessary” and travel outside the cities and to Guatemala or Honduras should only be done during daylight hours and with multiple vehicle convoys for safety. Excerpt:
The threat from transnational criminal organizations is prevalent throughout Central America. There is some evidence that the Mexican drug cartel Los Zetas may have infiltrated El Salvador, although only in extremely low numbers. El Salvador has hundreds of gang “cliques,” with more than 20,000 members. Violent, well-armed, U.S.-style street gang growth continues, with the 18th Street (Barrio 18) and MS-13 (“Mara Salvatrucha”) gangs being the largest. Gangs concentrate on narcotics and arms trafficking, murder for hire, carjacking, extortion, and violent street crime. The gangs have collaborated with Mexican drug cartels to carry out murders and have sold the cartels weapons and explosives left over from the war and/or from the military. Recognizing the threat posed by MS-13, the Department of Treasury’s Office of Foreign Assets Control (OFAC) designated the MS-13 a Transnational Criminal Organization (TCO) in their list of Specially Designated Nationals. Gangs and other criminal elements roam freely, targeting affluent areas for burglaries, and gang members are quick to engage in violence when resisted. Many of the gangs are comprised of unemployed youth who do not hesitate to use deadly force when perpetrating crimes.
A contributing factor to crime is the presence of impoverished shanty communities in the midst of high-income residential and higher-end commercial areas in the capital. There are few if any areas immune from violent crime. However, the presence of armed security and the use of security features at homes have proven to be successful in combating home invasions. In 2014, armed robberies continued to be the greatest security threat facing diplomats, tourists, and business persons. Home invasions/burglaries during daylight continue to be prevalent in residential neighborhoods in San Salvador. Some home invasions occur when individuals posing as delivery men or police officers gain access to a home.
Extortion persists as a very common, effective criminal enterprise. Hitting a peak in 2009, the number of extortions has dropped from 4,528 reported cases of extortion in 2006 to 2,480 reported cases in 2014. Many of the extortion calls originate from prisons.
There were 2,480 car thefts and 1,331 carjackings reported in 2014. Not tracked however, are the significant numbers of smash-and-grab-type of auto burglaries pervasive throughout the urban areas of El Salvador.
El Salvador has one of the highest homicide rates in the world, and the Department of State updated the Travel Warning for El Salvador in November 2014 to notify U.S. citizens about travel safety concerns and challenges. Police statistics show an increase in annual homicides during 2014, attributed primarily to the cessation of a controversial 2012 truce between local gangs. Crime statistics showed that the 2014 annual homicide rate — 68.6 per 100,000 inhabitants — was significantly higher than the previous year’s 43.7 per 100,000 rate. In 2014, authorities recorded 3,912 homicides, a 55.7 percent increase from the 2,513 in 2013.
Rape remains a serious concern; in 2013 and 2014, an average of 376 rapes per year were reported. Services for victims of rape are very limited, and many victims choose not to participate in the investigation and prosecution of the crime for fear of not being treated respectfully by the authorities. Many murder victims show signs of rape, and survivors of rape may not report the crime for fear of retaliation.
El Salvador is not a danger post for allowances purposes. It is a 15% COLA and 15% hardship differential post according to the latest bi-weekly update from state.gov.
The Crime and Safety Report is an annual product of the Regional Security Office (RSO) of every U.S. embassy. Read the full report here.
Image from CIA World Factbook 2010
On July 29, the US Embassy in El Salvador issued a security message to American citizens residing in El Salvador on the increased risk of crime and violence in the country:
In recent weeks, there has been an increase in the frequency and intensity of security incidents in El Salvador, including multiple attacks on transportation workers and security forces. The U.S. Embassy is aware that criminal elements in El Salvador have threatened to escalate the level of violence by attacking hotels, restaurants, shopping malls and other public venues. The grenade attack at a major hotel on July 25 demonstrates both a will and a capability to carry out such plans.
The Embassy is not aware of any threat specifically directed against U.S. citizens in El Salvador. However, the violence of recent weeks, coupled with this new information, demonstrates the need for sustained caution and high security awareness at all times. Review your personal security plans, avoid outdoor seating (as at restaurants and bars), and monitor local news stations for updates. Take appropriate steps to enhance your personal security. Please see the below excerpt from the Travel Warning for El Salvador:
U.S. citizens should remain alert to their surroundings, especially when entering or exiting their homes or hotels, cars, garages, schools, and workplaces. Whenever possible, travel in groups. U.S. Embassy security officials advise all U.S. government personnel not to walk, run, or cycle in unguarded streets and parks, even in groups, and recommend exercising only in gyms and fitness centers. Avoid wearing expensive jewelry, and do not carry large sums of money or display cash, ATM/credit cards, or other valuables. Avoid walking at night in most areas of El Salvador. Incidents of crime along roads, including carjacking, are common in El Salvador. Motorists should avoid traveling at night and always drive with their doors locked to deter potential robberies at traffic lights and on congested downtown streets. Travel on public transportation, especially buses, both within and outside the capital, is risky and not recommended. The Embassy advises official visitors and personnel to avoid using mini-buses and regular buses and to use only radio-dispatched taxis or those stationed in front of major hotels.
In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:
In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults).
When we reviewed several sex-related grievance cases in 2012, we came to the conclusion that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. Further, the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage. See: Sex, Lies, and No Videotapes, Just Cases for the Grievance Board
We recently received the following in our mailbox (edited to remove the most identifying details):
The married DCM at the embassy of a major Middle East ally slept with a married ELO whose husband worked for him. He blamed his alcoholism. As “punishment,” he was assigned as DCM at a significant high risk/high threat post. Next up? One of the top jobs at an embassy located in a Western European country. Where’s the accountability at State? Is it only the little people that are taken to task?
Well, that is an excellent question given another allegation we’ve received about another front office occupant involved in domestic violence overseas (another story we hope to write another day).
Extra-marital affairs, of course, are not mentioned anywhere in the Foreign Affairs Manual but below is what the regs say on sexual activity (pdf) and what constitutes, “notoriously disgraceful conduct.” Both sections were last updated in 2012, and applies to Foreign Service employees at State and USAID:
3 FAM 4139.1 Sexual Activity (CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees)
The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.
3 FAM 4139.14 Notoriously Disgraceful Conduct (CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees)
Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be careful to avoid letting personal disapproval of such conduct influence their decisions.
One might argue that an extra-marital affair between two consenting adults is a private matter. And in most cases, it is; who wants to be the sex police? But. If the allegations are true, can you really consider it private, particularly in a case that involves the second highest ranking public official at an embassy and an entry level officer (ELO) assigned under his command? Even if the DCM is not the ELO’s rating or reviewing officer — how does this not affect the proper functioning of the mission? Can anyone exclude undue influence, potential favoritism or preferential treatment? Which section chief would give a bad performance review to a junior officer who slept with the section chief’s own reviewing officer? Even if not widely known outside the Foreign Service, can anyone make a case that this is not disgraceful or notorious? For real life consequences when a junior officer has a “special relationship” and “unrestricted access” to an embassy’s front office occupant, read the walking calamity illustrated in this case FSGBNo.2004-061 (pdf).
Look … if widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service for the lower ranks, why should it be a requirement for the upper ranks? It’s not? Well, how else can we explain a good number of senior officials who allegedly looked the other way?
Can’t you see I’m busy? Besides I did not/did not see anything!
We went and looked up the Foreign Service Grievance Board cases related extra-marital affairs or related to notoriously disgraceful conduct. Here are some quick summaries.
In 2011, the State Department handed down a 30-day suspension to a junior officer for “off-color and offensive emails about women he dated, which were widely disseminated” after his private email account was hacked. State said this constituted “notoriously disgraceful conduct.” (pdf)
Another case in 2011 involves an FSO who was told by the State Department: “Given the nature of Foreign Service life, you are aware that you are on duty 24/7. These multiple extramarital affairs involving sexual relations with an estimated 13 women during two separate assignments overseas without your spouse’s knowledge show poor judgment for a Foreign Service Officer.” (pdf) (note: two separate assignments could mean 4-6 years; untenured tours at 2 years, tenured tours typically at 3 years).
A Diplomatic Security (DS) Special Agent was suspended for three days for Notoriously Disgraceful Conduct arising from a domestic violence incident with his spouse. (pdf)
A married FP-04 Information Management Specialist (IMS), received a 20-day suspension, subsequently reduced to 10 days, for improper personal conduct and failure to follow regulations. The employee served at a critical threat post, and admitted having an extramarital relationship with a local embassy employee as well as engaging in sexual relations with two “massage techs.” (pdf)
An untenured FP-04 Diplomatic Security (DS) agent was disciplined for poor judgment and improper personal conduct. The employee brought a woman to his hotel room and engaged in sex with her. Although the employee voluntarily disclosed the incident and asserted that the woman was not a prostitute, the Department contends that the incident at a minimum gave the appearance of engaging in prostitution and as such violated 3 FAM 4139.14 or Notoriously Disgraceful Conduct. (pdf)
A married FS-02 Information Management Officer (IMO) with seventeen years in the Department, with numerous awards and no disciplinary record, was found in his personal vehicle that was parked in an isolated area, and in a dazed condition with injuries suggesting he had been assaulted. He stated that during the prior night he had picked up a woman unknown to him, shared wine with her while driving, pulled over to the side of the road and then had no recollection of what followed, presumably because she had introduced a substance into his drink. During the ensuing investigation, the employee revealed he had picked up four or five women on previous occasions over a four-month period and had sex with them without the knowledge of his wife. As a result, the Department proposed a ten-day suspension based on the charges of Poor Judgment and Notoriously Disgraceful Conduct. (pdf)
An FP-04 Diplomatic Security (DS) agent was given a five-day suspension without pay on the charge of Improper Personal Conduct. The charge is based on an incident in a criterion country in which employee (an unmarried person) engaged in consensual sex with a local woman and gave her $60.00 after the sexual activity had concluded. There was no evidence that the woman was a prostitute and there were no witnesses to their encounter. The employee self-reported the incident immediately to his supervisors, who took no disciplinary action. Eighteen months later, the Department opened an investigation and eventually suspended the employee. The deciding official concluded that employee’s conduct had violated two regulations governing behavior subject to discipline: 3 FAM 4139.1 (Sexual Activity) and 3 FAM 4139.14 (Notoriously Disgraceful Conduct). (pdf)
We have so far been unable to locate FSGB cases of “notoriously disgraceful conduct” involving senior Foreign Service officials; certainly nothing at the DCM or COM level. It could be that 1) our search function is broken; 2) the folks are so risk-aversed and discreet that there are no cases involving a single one of them, or 3) potential such cases were swept under the rug, nothing makes it to the public records of the Foreign Service Grievance Board.
A local employee of the U.S. Embassy in Pakistan was reportedly killed by unidentified gunmen in the capital city of Islamabad. The victim was identified as Iqbal Baig who worked for the US Drug Enforcement Agency (DEA) reportedly for about a dozen years. The AFP citing the victim’s brother reports that the victim had received threats in the recent past.
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
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.)
A U.S. Marine with Special-Purpose Marine Air-Ground Task Force Crisis Response-Africa emplaces a machine gun on the roof of a notional American Embassy during a training exercise in the urban training facility in Baumholder, Germany, July 6, 2015. More than 78 Marines and sailors conducted the full-mission rehearsal, which demonstrated the unit’s ability to rapidly deploy and conduct embassy reinforcement. (Photo from marines.mil)
U.S. Marines and sailors with Special-Purpose Marine Air-Ground Task Force Crisis Response-Africa (SPMAGTF) from Sigonella, Italy, conducted a training exercise at an Army training facility in Baumholder, Germany serving as a simulated American Embassy on July 6-9, 2015.
According to marines.mil, the full-mission rehearsal demonstrated the unit’s ability to deploy to conduct embassy reinforcement and validate the communications capability of the platoon. More than 78 members of the SPMAGTF patrolled the urban training facility, and set up communication and defenses to protect the notional American personnel and assets.
“This is the type of mission is what we’ve been training to since before we deployed to Sigonella,” said Staff Sgt. Edward Erdmann, the platoon sergeant. “The training was a good test for the Marines because they didn’t know what to expect, and the unexpected is what we need to train to.” A team of Army Green Berets provided the opposing force for the Marines securing the embassy.