Ex-Pompeo Adviser Ambassador P. Michael McKinley Appears at Impeachment Inquiry

 

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Read: Ambassador Marie Yovanovitch’s Prepared Deposition Statement

 

Excerpt from Ambassador Marie Yovanovitch’s prepared deposition statement:

Before I close, I must share the deep disappointment and dismay I have felt as these events have unfolded. I have served this nation honorably for more than 30 years. I have proudly promoted and served American interests as the representative of the American people and six different presidents over the last three decades. Throughout that time, I—like my colleagues at the State Department—have always believed that we enjoyed a sacred trust with our government.

We make a difference every day on issues that matter to the American people—whether it is war and peace, trade and investment, or simply helping with a lost passport. We repeatedly uproot our lives, and we frequently put ourselves in harm’s way to serve this nation. And we do that willingly, because we believe in America and its special role in the world. We also believe that, in return, our government will have our backs and protect us if we come under attack from foreign interests.

That basic understanding no longer holds true. Today, we see the State Department attacked and hollowed out from within. State Department leadership, with Congress, needs to take action now to defend this great institution, and its thousands of loyal and effective employees. We need to rebuild diplomacy as the first resort to advance America’s interests and the front line of America’s defense. I fear that not doing so will harm our nation’s interest, perhaps irreparably.

That harm will come not just through the inevitable and continuing resignation and loss of many of this nation’s most loyal and talented public servants. It also will come when those diplomats who soldier on and do their best to represent our nation face partners abroad who question whether the ambassador truly speaks for the President and can be counted upon as a reliable partner. The harm will come when private interests circumvent professional diplomats for their own gain, not the public good. The harm will come when bad actors in countries beyond Ukraine see how easy it is to use fiction and innuendo to manipulate our system. In such circumstances, the only interests that will be served are those of our strategic adversaries, like Russia, that spread chaos and attack the institutions and norms that the U.S.helped create and which we have benefited from for the last 75 years.

I am proud of my work in Ukraine. The U.S. Embassy, under my leadership, represented and advanced the policies of the United States government as articulated, first by the Obama Administration and then by the Trump Administration. Our efforts were intended, and evidently succeeded, in thwarting corrupt interests in Ukraine, who fought back by selling baseless conspiracy theories to anyone who would listen. Sadly, someone was listening, and our nation is the worse off for that.

Read in full here:

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SDNY Alleges That Political Donors Target a Career U.S. Ambassador For Removal With Sludge People Assist

 

It is no longer news when political donors end up with ambassadorships. We just did not know until today that political donors apparently are now also able to affect the removal or the recall of a career ambassador according to the indictment (see p.8) from the Southern District of New York. The SDNY alleged that these political donors sought assistance from “Congressman-1” in causing the U.S. Government to remove or recall the then U.S. Ambassador to Ukraine (that would be Marie Yovanovitch). The effort was conducted in part at the request of Ukrainian officials.
Congressman-1 has not been indicted nor identified in the indictment. SDNY said that investigations are ongoing.
The recall of Ambassador Yovanovich in May 2019 followed a persistent campaign for her removal among conservative media outlets in the United States. The State Department reportedly told RFE/RL  on May 6,  that Ambassador Yovanovitch “is concluding her 3-year diplomatic assignment in Kyiv in 2019 as planned.” And that “her confirmed departure date in May aligns with the presidential transition in Ukraine,” which elected a new president in April.
We now know that none of that is true. What other truth-sounding stuff are they telling us?
Those who are quick to point out that she was appointed United States Ambassador to Ukraine by President Obama, should know that Ambassador Yovanovitch was first appointed United States Ambassador to Kyrgyzstan by President George W. Bush.  She was also appointed United States Ambassador to Armenia by President George W. Bush, but her tenure in Yerevan, as a career diplomat, spanned the Bush Administration and the  Obama Administration (2008-2011). We’ve seen folks insists on calling her an Obama “holdover,” perhaps they’ll think otherwise if they realize that she was a Bush “holdover” before she became an Obama “holdover. Career people do tend to serve from one administration to the next.
We expect that we’ll hear more about this case in the days ahead. What is clear to us right now is if this could happen to Ambassador Yovanovitch who has over three decades of dedicated service, this could happen to anyone in the U.S. diplomatic service.
Also, Ambassador P. Michael McKinley, Senior Advisor to Pompeo, Quits.
Read the full SDNY Indictment of Lev Parnas and Igor Fruman here (PDF).

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Know Your Rights: Conversations with Congress (Via Just Security)

Via Just Security:

Secretary of State Mike Pompeo is asserting that Congress is exceeding its authority and trying to bully State Department employees by requesting their testimony about alleged White House and State Department misconduct. His intransigence not only threatens to topple our constitutional system of checks and balances, but it attempts to nullify a basic right federal employees have enjoyed for over a century: the right to communicate with Congress free from intimidation, bullying and unfair harassment.

The Lloyd-La Follette Act of 1912, which granted federal employees this right, reads in relevant part:

The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.

As one of the first statutes enacted specifically to protect federal whistleblowers, the Lloyd-La Follette Act was passed, according to its accompanying House Report, “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” This was especially pertinent in its time, as Presidents Theodore Roosevelt and William Taft had issued executive orders gagging federal employees from communicating with Congress, and punishing violators with termination.

This right applies to all State Department employees, current and former, who wish to testify before congressional committees.
[…]
Whistleblowers and the information they disclose are the life-blood of our system of constitutional checks and balances.  But their vital role means there is an equally strong imperative to silence or discredit them by those threatened by their truth-telling. They should prepare as if it were the most important test of their professional lives. Because it will be.

Read more:

Related items:

Pompeo’s Letter Is the Trump Administration’s Opening Salvo of Obstruction
Deciphering the Pompeo-House Clash Over Witnesses
Overwhelming Confirmation of Whistleblower Complaint: An Annotation
Trump’s Extortion of Ukraine Is an Impeachable Abuse of Power
Ukrainian Funding Delay Created a Paper Trail That Congress Should Follow
There Is No Constitutional Impediment to an Impeachment Inquiry that Concerns National Security
Top Expert Backgrounder: Trump’s Impeachment–What Comes Next?
The Iceberg’s Tip: Ukraine Phone Call and the Months-Long Conspiracy to Violate Federal Campaign Finance Laws
Whistleblower Says White House Took Unusual Steps to Limit Access to Ukraine Call Record
Trump’s Call to Ukraine May Constitute “Honest Services Fraud”—A Core Crime of Public Corruption

USEU Sondland Turns Over WhatsApp Messages and Other Docs to @StateDept

 

Via Yahoo News:

The State Department waited until 12:30 a.m. on Tuesday to tell U.S. Ambassador Gordon Sondland not to show up for his scheduled deposition with three House committees later that morning, the ambassador’s lawyer told Yahoo News. Robert Luskin, Sondland’s attorney, said he got the extraordinary middle-of-the-night directive in a phone call from a State Department official he declined to identify. The official offered no explanation of the grounds on which the State Department was blocking Sondland’s appearance at the last minute.

Michael Isikoff reported that Luskin confirmed that Sondland has already turned over to the State Department WhatsApp messages, text messages and other documents in his possession relevant to the House investigation.
Also, which State Department official made the call to Sondland at 12:30 a.m.? Curious people wants to know.

#UkraineNightmare: “If you still have concerns … give Lisa Kenna or S a call …”

 

According to state.gov, Lisa Kenna is a career member of the Senior Foreign Service. She is currently the Executive Secretary in the Office of the Secretary, a position she has held since June 2017 (under Rex Tillerson). Previously, she served as the Executive Assistant to the Secretary. She has served overseas in Amman, Cairo, and Peshawar. Domestically, she has worked in the Office of the Secretary, the National Security Council, and at the Department of Defense.

The Executive Secretariat, comprised of the Executive Secretary, five Deputy Executive Secretaries, and their staff, is responsible for coordination of the work of the Department internally, serving as the liaison between the Department’s bureaus and the offices of the Secretary, Deputy Secretary, and Under Secretaries. The Executive Secretariat also handles the Department’s relations with the White House, National Security Council, and other Cabinet agencies.

“S” is in reference to the Secretary of State.

Ambassador Bill Taylor was previously the U.S. Ambassador to Ukraine from June 21, 2006 – May 23, 2009, spanning the G.W. Bush and Obama Administrations.

For Kurt Volker, see Trump’s Special Representative For Ukraine Negotiations Kurt Volker Steps Down

For Gordon Sondland, see here and Oregon Public Broadcasting: Portland Businessman Will Cooperate With US House Impeachment Inquiry; The Intercept: Portland Executive Covertly Donates $1 Million to Inauguration After Being Shamed Over Trump Support.

 

Read: Text Msgs From Ambassadors Volker, Sondland, Taylor, and Others on #UkraineNightmare

State/OIG Shares Documents With Congress on Misinformation About Amb. Yovanovitch

 

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116th Congress Regulations for the Use of Deposition Authority and 3 FAM 4170/10 FAM 130

The long-standing governing guidelines at the State Department for public speaking, teaching, writing, and  media engagement is 3 FAM 4170. The provisions of this subchapter apply to all public communications as defined in 3 FAM 4173, such as speaking, teaching, writing, and press/media engagement, including that prepared for electronic dissemination in an employee’s official capacity, or in an employee’s personal capacity if on a topic “of Departmental concern,” as defined in 3 FAM 4173. This subchapter makes no exceptions for special government employees (SGEs).
The most recent update for this subchapter was in March 2017 and it says in part:

The provisions of this subchapter are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by statute or executive order relating to: (1)  Classified information; (2)  Communications to Congress; (3)  Reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4)  Any other whistleblower protection.

3 FAM 4170 Overview notes:

The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4)

On March 14, 2019, the State Department also updated 10 FAM 130 REMARKS AND WRITINGS FOR THE MEDIA AND GENERAL PUBLIC.  This subchapter defines “official” as public remarks including speeches, congressional testimony, press statements, and remarks prepared for photo opportunities.
This subchapter’s policy also says that “Official appearances before the media or general public to give formal interviews, speeches, or remarks must be cleared with the Assistant Secretary for Public Affairs.  See 10 FAM 131.4.  See also 3 FAM 4174.2 and 3 FAM 4174.3.” And it says that “former employees remain obligated by law not to disclose classified information, and certain employees may be bound by nondisclosure agreements.  See also 3 FAM 4174.2 paragraph d.”
On the matter of noncompliance, last updated in July 2015 per 3 FAM 4177:  “Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. … Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.
We dug this up due to the forthcoming depositions by State Department officials in the coming days. In one hand, the FAM says that 3 FAM 4170 is consistent and do not supersede, or conflict with an employee’s obligation related to communication with Congress, and yet 10 FAM 130 updated in March 2019, a couple of months after congressional rules on depositions was adopted, specifically notes that congressional testimony is considered “official” remarks and require clearance. Somebody would have to sort this out very soon. Or we’ll know soon enough.
The first depositions in the Impeachment Inquiry will start tomorrow with the scheduled appearance of former U.S. Special Representative for Ukraine Negotiations Kurt Volker (described by NBC News as an “unpaid volunteer” and reportedly classified as a “Special Government Employee”).  Given that he is only the first to be deposed and we expect there will be many more before this is over, we thought we’d also dig up the rules for depositions in the 116th Congress.
Per section 103(a)(2) of House Resolution 6, 116th Congress, the following regulations regarding the conduct of depositions by committee and select committee counsel was printed in the Congressional Record on January 25, 2019. The Congressional Record version is available to read here, and in PDF file here. Perhaps most notable here is #3 regarding the presence of USG observers or counsels during depositions.
This is probably not a bad time to remind folks why Professional Liability Insurance is needed. Read here and here.

1. Notices for the taking of depositions shall specify the date, time, and place of examination. Depositions shall be taken under oath administered by a member or a person otherwise authorized to administer oaths. Depositions may continue from day to day.

2. Consultation with the ranking minority member shall include three days’ notice before any deposition is taken. All members of the committee shall also receive three days written notice that a deposition will be taken, except in exigent circumstances. For purposes of these procedures, a day shall not include Saturdays, Sundays, or legal holidays except when the House is in session on such a day.

3. Witnesses may be accompanied at a deposition by personal, nongovernmental counsel to advise them of their rights. Only members, committee staff designated by the chair or ranking minority member, an official reporter, the witness, and the witness’s counsel are permitted to attend. Observers or counsel for other persons, including counsel for government agencies, may not attend.

4. The chair of the committee noticing the deposition may designate that deposition as part of a joint investigation between committees, and in that case, provide notice to the members of the committees. If such a designation is made, the chair and ranking minority member of the additional committee(s) may designate committee staff to attend pursuant to regulation 3. Members and designated staff of the committees may attend and ask questions as set forth below.

5. A deposition shall be conducted by any member or committee counsel designated by the chair or ranking minority member of the Committee that noticed the deposition. When depositions are conducted by committee counsel, there shall be no more than two committee counsel permitted to question a witness per round. One of the committee counsel shall be designated by the chair and the other by the ranking minority member per round.

6. Deposition questions shall be propounded in rounds. The length of each round shall not exceed 60 minutes per side, and shall provide equal time to the majority and the minority. In each round, the member(s) or committee counsel designated by the chair shall ask questions first, and the member(s) or committee counsel designated by the ranking minority member shall ask questions second.

7.  Objections must be stated concisely and in a non-argumentative and non-suggestive manner. A witness’s counsel may not instruct a witness to refuse to answer a question, except to preserve a privilege. In the event of professional, ethical, or other misconduct by the witness’s counsel during the deposition, the Committee may take any appropriate disciplinary action. The witness may refuse to answer a question only to preserve a privilege. When the witness has refused to answer a question to preserve a privilege, members or staff may (i) proceed with the deposition, or (ii) either at that time or at a subsequent time, seek a ruling from the Chair either by telephone or otherwise. If the Chair overrules any such objection and thereby orders a witness to answer any question to which an objection was lodged, the witness shall be ordered to answer. If a member of the committee chooses to appeal the ruling of the chair, such appeal must be made within three days, in writing, and shall be preserved for committee consideration. The Committee’s ruling on appeal shall be filed with the clerk of the Committee and shall be provided to the members and witness no less than three days before the reconvened deposition. A deponent who refuses to answer a question after being directed to answer by the chair may be subject to sanction, except that no sanctions may be imposed if the ruling of the chair is reversed by the committee on appeal.

8. The Committee chair shall ensure that the testimony is either transcribed or electronically recorded or both. If a witness’s testimony is transcribed, the witness or the witness’s counsel shall be afforded an opportunity to review a copy. No later than five days after the witness has been notified of the opportunity to review the transcript, the witness may submit suggested changes to the chair. Committee staff may make any typographical and technical changes. Substantive changes, modifications, clarifications, or amendments to the deposition transcript submitted by the witness must be accompanied by a letter signed by the witness requesting the changes and a statement of the witness’s reasons for each proposed change. Any substantive changes, modifications, clarifications, or amendments shall be included as an appendix to the transcript conditioned upon the witness signing the transcript.

9. The individual administering the oath, if other than a member, shall certify on the transcript that the witness was duly sworn. The transcriber shall certify that the transcript is a true record of the testimony, and the transcript shall be filed, together with any electronic recording, with the clerk of the committee in Washington, DC. Depositions shall be considered to have been taken in Washington, DC, as well as the location actually taken once filed there with the clerk of the committee for the committee’s use. The chair and the ranking minority member shall be provided with a copy of the transcripts of the deposition at the same time.

10. The chair and ranking minority member shall consult regarding the release of deposition testimony, transcripts, or recordings, and portions thereof. If either objects in writing to a proposed release of a deposition testimony, transcript, or recording, or a portion thereof, the matter  shall be promptly referred to the committee for resolution.

11. A witness shall not be required to testify unless the witness has been provided with a copy of section 103(a) of H.Res. 6, 116th Congress, and these regulations.

 

Pompeo Now Concerned About Improper Treatment of “Distinguished Professionals”

 

Secretary Pompeo who has not done much about the improper treatment of career professionals
— such as inappropriate practices including disrespectful and hostile treatment of employees, accusations against and harassment of career employees premised on claims that they were “disloyal” based on their perceived political views, and retaliation associated with conflicts of interest — despite the departure of some 50 employees from a bureau with 300 staffers —
is now concerned about “attempt to intimidate, bully, & treat improperly the distinguished professionals of the Department of State, including several career FSOs” from congressional committees exercising their oversight function.
Oopsie! We almost peed from laughing so hard!
Also, late breaking news says that State/OIG Steve Linick will be holding an “urgent” briefing Wednesday afternoon for staffers from several House and Senate Committees apparently “to discuss and provide staff with copies of documents related to the State Department and Ukraine.” The reported source of the documents is the Acting Legal Adviser.
The most recent Senate-confirmed Legal Adviser was Jennifer Gillian Newstead who served from January 22, 2018 to May 31, 2019 and is now the General Counsel at Facebook.
Marik A. String assumed office as Acting Legal Adviser on June 1, 2019. Mr. String state.gov’s bio says that he has 15 years of legal, policy, and military experience at the Department of State, Department of Defense, United States Senate, think tanks in the United States and overseas, and in private legal practice.” He also previously served as Senior Advisor to Deputy Secretary of State John Sullivan. Prior to private law practice, Mr. String served on the U.S. Senate Committee on Foreign Relations, where he held responsibilities as Deputy Chief Counsel and Senior Professional Staff Member. Mr. String, an officer in the U.S. Navy Reserve was educated at Georgetown University (J.D., Global Law Scholar), where he was an editor for The Georgetown Law Journal and at the University of Vienna (M.A., Fulbright Scholar). See Just Security’s piece on this appointment from June 2019.

Statements of Support For Former US Ambassador to Ukraine Marie Yovanovitch

 

Ambassador Marie Yovanovitch was previously scheduled to appear for a deposition in Congress on Wednesday, October 2. Reports indicate that she is now scheduled to appear before the oversight body on Friday, Oct. 11, 2019.
In the meantime, the American Academy of Diplomacy has issued a joint statement signed by AAD Chairman Thomas R. Pickering  and AAD President Ronald E. Neumann supporting Ambassador Marie Yovanovitch.
Ambassador Marie Yovanovitch Must Be Supported

Washington, D.C. – The American Academy of Diplomacy calls on the Administration to make clear that it will not act against career diplomat Ambassador Marie Yovanovitch for doing her duty and working to support long established US policies and values. The Administration removed Ambassador Yovanovitch from her post in Ukraine prematurely. Now, we note with great concern the statement by President Donald Trump in the recently released memorandum of conversation with Ukraine’s president, in which the President said of Ambassador Yovanovitch, “Well, she’s going to go through some things.” The threatening tone of this statement is deeply troubling. It suggests actions outside of and contrary to the procedures and standards of a professional service whose officers, like their military counterparts, take an oath to uphold the Constitution. Whatever views the Administration has of Ambassador Yovanovitch’s performance, we call on the Administration to make clear that retaliation for political reasons will not be tolerated.

The Academy is a non-partisan organization of former senior U.S. diplomats, career and political appointees, who have served over decades. Our mission is strengthening American diplomacy. In our careers, we have worked around the world and under Republican and Democratic administrations alike and frequently acted publicly and privately against foreign corruption. Speaking out against foreign corruption is consistent also with the Foreign Anti-Corruption Act that binds U.S. business.

The American Foreign Service Association, the “voice of the Foreign Service” has also issued a statement on The Importance of a Non-Partisan Career Foreign Service but made no specific mention of Ambassador Yovanovitch’s case.
On October 1, NBC News reports that more than 50 former female U.S. ambassadors are calling on President Trump and Secretary of State Mike Pompeo in a letter to protect foreign service officers from political retaliation in the wake of the ousting of the former U.S. ambassador to Ukraine, Marie Yovanovitch.  The signatories of the letter are members of an organization of current and former ambassadors, Women Ambassadors Serving America.
The report notes that “Only one current U.S. ambassador signed the letter: Catherine Ebert-Gray, a career foreign service officers who serves as the U.S. envoy to Papua New Guinea, the Solomon Islands and Vanuatu. Her signature comes with a notable caveat; She adds that “The views expressed are my own and not necessarily those of the U.S. government. Signing a public letter critical of the Trump administration could put current ambassadors at professional risk, which likely explains why Ebert-Gray is the only one to sign the letter.”