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.

 

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White House Submits Some @StateDept/Related Agencies Re-nominations to the Senate

Posted: 4:52 am EST

Via WH, January 16, 2019

 

STATE DEPARTMENT

Brian J. Bulatao, of Texas, to be an Under Secretary of State (Management), vice Patrick Francis Kennedy.

David Schenker, of New Jersey, to be an Assistant Secretary of State (Near Eastern Affairs), vice Anne W. Patterson, resigned.

David Stilwell, of Hawaii, to be an Assistant Secretary of State (East Asian and Pacific Affairs), vice Daniel R. Russel.

Stephen Akard, of Indiana, to be Director of the Office of Foreign Missions, with the rank of Ambassador, vice Gentry O. Smith, resigned.

Marshall Billingslea, of Virginia, to be an Under Secretary of State (Civilian Security, Democracy, and Human Rights), vice Sarah Sewall, resigned.

R. Clarke Cooper, of Florida, to be an Assistant Secretary of State (Political-Military Affairs), vice Puneet Talwar, resigned.

Robert A. Destro, of Virginia, to be Assistant Secretary of State for Democracy, Human Rights, and Labor, vice Tomasz P. Malinowski.

Jeffrey L. Eberhardt, of Wisconsin, a Career Member of the Senior Executive Service, to be Special Representative of the President for Nuclear Nonproliferation, with the rank of Ambassador.

Ronald Mortensen, of Utah, to be an Assistant Secretary of State (Population, Refugees, and Migration), vice Anne Claire Richard.

Kimberly Breier, of Virginia, to be a Member of the Board of Directors of the Inter-American Foundation for a term expiring September 20, 2020, vice Adolfo A. Franco, term expired.

 

AMBASSADORS/POLITICAL

John P. Abizaid, of Nevada, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Saudi Arabia.

Lynda Blanchard, of Alabama, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Slovenia.

Joseph Cella, of Michigan, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Fiji, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Kiribati, the Republic of Nauru, the Kingdom of Tonga, and Tuvalu.

Edward F. Crawford, of Ohio, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Ireland.

David T. Fischer, of Michigan, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Morocco.

Kenneth S. George, of Texas, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Oriental Republic of Uruguay.

Jeffrey Ross Gunter, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Iceland.

Kenneth A. Howery, of Texas, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden.

Ronald Douglas Johnson, of Florida, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of El Salvador.

Doug Manchester, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Commonwealth of The Bahamas.

Lana J. Marks, of Florida, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of South Africa.

John Rakolta Jr., of Michigan, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the United Arab Emirates.

Leandro Rizzuto, of New Jersey, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Barbados, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federation of Saint Kitts and Nevis, Saint Lucia, Antigua and Barbuda, the Commonwealth of Dominica, Grenada, and Saint Vincent and the Grenadines.

Donald R. Tapia, of Arizona, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Jamaica.

Christine J. Toretti, of Pennsylvania, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Malta.

Adrian Zuckerman, of New Jersey, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Romania.

 

AMBASSADORS/CAREER

Kate Marie Byrnes, of Florida, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Macedonia.

Michael J. Fitzpatrick, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Ecuador.

W. Patrick Murphy, of Vermont, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Cambodia.

Daniel N. Rosenblum, of Maryland, a Career Member of the Senior Executive Service, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Uzbekistan.

Matthew H. Tueller, of Utah, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Iraq.

Note: There appears to be three career diplomats on the Executive Calendar whose nominations have not been resubmitted to the Senate with this list (Robert K. Scott for Republic of Malawi; Francisco Luis Palmieri for Honduras, and Joseph E. Macmanus for Colombia). Also many more names that were pending in the SFRC last year that we expected to see renominated but as of this writing, the White House has not done so except for a couple nominees. It could just be a matter of time. We expected this list to come out the first week of January, and the names were only sent to the Senate on January 16. We’ll be in the look out for that other long list. 

USUN

Andrew P. Bremberg, of Virginia, to be Representative of the United States of America to the Office of the United Nations and Other International Organizations in Geneva, with the rank of Ambassador.

Kip Tom, of Indiana, for the rank of Ambassador during his tenure of service as U.S. Representative to the United Nations Agencies for Food and Agriculture.

BBG

Michael Pack, of Maryland, to be Chief Executive Officer of the Broadcasting Board of Governors for the term of three years.  (New Position)

USAID

John Barsa, of Florida, to be an Assistant Administrator of the United States Agency for International Development, vice Marcela Escobari.

Mina Chang, of Texas, to be an Assistant Administrator of the United States Agency for International Development, vice Jonathan Nicholas Stivers.

Richard C. Parker, of North Carolina, to be an Assistant Administrator of the United States Agency for International Development, vice T. Charles Cooper, resigned.

PEACE CORPS

Alan R. Swendiman, of North Carolina, to be Deputy Director of the Peace Corps, vice Carlos J. Torres.

 

EXPORT-IMPORT BANK

Spencer Bachus, III, of Alabama, to be Member of the Board of Directors of the Export-Import Bank of the United States for a term expiring January 20, 2023, vice Patricia M. Loui, term expired.

Claudia Slacik, of New York, to be a Member of the Board of Directors of the Export-Import Bank of the United States for a term expiring January 20, 2023, vice Sean Robert Mulvaney.

Kimberly A. Reed, of West Virginia, to be President of the Export-Import Bank of the United States for a term expiring January 20, 2021, vice Fred P. Hochberg, resigned.

OPIC

Irving Bailey, of Florida, to be a Member of the Board of Directors of the Overseas Private Investment Corporation for a term expiring December 17, 2021, vice Matthew Maxwell Taylor Kennedy, term expired.

Christopher P. Vincze, of Massachusetts, to be a Member of the Board of Directors of the Overseas Private Investment Corporation for a term expiring December 17, 2019, vice Todd A. Fisher, term expired.

MCC

Alexander Crenshaw, of Florida, to be a Member of the Board of Directors of the Millennium Challenge Corporation for a term of three years, vice Mark Green, term expired.

George M. Marcus, of California, to be a Member of the Board of Directors of the Millennium Challenge Corporation for a term of three years, vice Morton H. Halperin, term expired.

WHO: Brett P. Giroir, of Texas, to be Representative of the United States on the Executive Board of the World Health Organization, vice Thomas Frieden.

IMF: Mark Rosen, of Connecticut, to be United States Executive Director of the International Monetary Fund for a term of two years, vice Margrethe Lundsager, resigned.

OSCE: James S. Gilmore, of Virginia, to be U.S. Representative to the Organization for Security and Cooperation in Europe, with the rank of Ambassador.

OSCD: Pamela Bates, of Virginia, to be Representative of the United States of America to the Organization for Economic Cooperation and Development, with the rank of Ambassador.

 

 

 

 

 

 

Yo Wanna Spank Schumer But Not @Senatemajldr McConnell For Non-Confirmation of Ambassadors? Very Unfair!

It looks like the President of the United States is ending 2018 by ranting that “heads of countries” are calling and asking why Democratic Senator Chuck Schumer “is not approving their otherwise approved Ambassadors.” Well, first, to be clear, if they are really calling the WH asking about this, they would not be calling about “their otherwise approved ambassadors” because that would mean, these countries are calling about “their” ambassadors representing them in Washington. As far as we know, the U.S. Senate is not the entity that grants agrément for foreign diplomats to be appointed to the United States.

The president appears to be talking about U.S. Ambassadors nominated to foreign countries, which means, these are “our” ambassadors, and not these countries’ ambassadors even if they are assigned to these mysterious countries (whose “heads of countries” are um apparently “calling” and asking about stuff). If this is kinda confusing, try and imagine Saudi Arabia’s MBS or Turkey’s Erdogan calling the WH and asking what Schumer did to “their otherwise approved Ambassador” – that is, the Saudi Arabian and Turkish Ambassadors to the United States. They would not call the U.S. Ambassadors destined to their respective countries “their” ambassadors. We doubt if MBS would even call and ask what Schumer did to John Abizaid, Trump’s nominee to be the U.S. Ambassador to Saudi Arabia. Why would he? He got you know who. Would Erdogan call and ask what Schumer did to Trump’s nominee to be U.S. Ambassador to Turkey? He wouldn’t, cmon. There isn’t one.

https://twitter.com/realDonaldTrump/status/1079830268708556800

Second, we should note that there are indeed multiple nominees pending on the Senate Calendar and waiting for their full Senate votes. Except for two nominations who are subjects to two Democratic Senate holds, the rest of the nominees have been waiting for GOP Majority Leader Mitch McConnell to put them up for a vote. Over the past year, the GOP appeared to prioritized the confirmation of judicial nominees. In the last 12 months, approximately 70 Judiciary nominees were confirmed while only about 47 State Department nominees were confirmed for the same duration (excluding USAID, UN, and Foreign Service lists).

We have a separate post on the nominations that are currently pending at the SFRC. We are anticipating that most of these nominees will be renominated at the beginning of the next Congress, and that most of them will probably get confirmation from the Senate given the GOP’s expanded majority in the 116th Congress. We don’t know how many more judicial nominees the GOP is planning to shovel through the confirmation process, however, but if there is a large enough number, those again could have an impact on the speed of confirmation for State Department nominees.

Below are the nominations pending in the Executive Calendar. May be there is a potential for the U.S. Senate to have mass confirmation of these nominations on January 2? You all can hope, right? We’ll have to wait and see. 

DEPARTMENT OF STATE

Carol Z. Perez, of Virginia, a Career Member of the Senior Foreign Service, Class of MinisterCounselor, to be Director General of the Foreign Service, vice Arnold A. Chacon, resigned.

Ellen E. McCarthy, of Virginia, to be an Assistant Secretary of State (Intelligence and Research), vice Daniel Bennett Smith.

Stephen Akard, of Indiana, to be Director of the Office of Foreign Missions, with the rank of Ambassador, vice Gentry O. Smith, resigned.

AMBASSADORS (CAREER)

Lynne M. Tracy, of Ohio, a Career Member of the Senior Foreign Service, Class of MinisterCounselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Armenia.

Christopher Paul Henzel, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Yemen.

Sarah-Ann Lynch, of Maryland, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Co-operative Republic of Guyana

Earle D. Litzenberger, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Azerbaijan.

Matthew John Matthews, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Brunei Darussalam.

Michael S. Klecheski, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mongolia.

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