Schiff’s Whistleblower and the Mueller Report

The whistleblower complaint against President Trump alleges acts very similar to those examined by the Mueller Report which occurred during the June 9, 2016, meeting in Trump Tower between the Russian attorney Natalia Veselnitskaya, Donald Trump, Jr., and several other participants.  In both episodes there was the possibility of a foreign government giving Trump opposition research information relevant to his campaign opponent.

The Mueller Report examined the June 9, 2016, meeting in great detail.  Its conclusion was that there was no violation of campaign finance laws.  The same conclusion should apply to Trump’s phone call with Ukrainian President Zelensky.  The Report said:

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.

In particular, on the question of whether opposition research provided by a foreign government constituted a thing-of-value, the Muller Report said:

… no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.

The Democrats working on impeachment refuse to mention the Mueller Report, although it is clearly relevant to their investigations.  Since the factual situations are so similar it is important to review the Mueller Report’s extensive analysis of the June 9, 2016, meeting between Trump Jr. and Veselnitskaya.  The Democrats would no doubt argue that they are different because Trump threatened to withhold aid from Ukraine, but in fact, Trump asked Zelensky to do him a “favor.”  A favor is not something you pay for.  It is something done at the other party’s discretion, and need not be done at all.  Zelensky did not do anything in response to Trump’s request, and Trump did not withhold the aid.  In that sense it was like the June 9 meeting in that nothing happened with regard to providing opposition research.

Because it is so relevant, following is the complete text from the Mueller Report of its legal analysis of the June 9 meeting.

Begin quote:

  1. Campaign Finance

Several areas ofthe Office’s investigation involved efforts or offers by foreign nationals to provide negative information about candidate Clinton to the Trump Campaign or to distribute that information to the public, to the anticipated benefit of the Campaign. As explained below, the Office considered whether two of those efforts in particular- the June 9, 2016 meeting at Trump

Tower Harm to Ongoing Matter —:-eonstituted prosecutable violations of the campaign-finance laws. The Office determined that the evidence was not sufficient to charge either incident as a criminal violation.

  1. Overview OfGoverning Law

“[T]heUnitedStateshasacompellinginterest… inlimitingtheparticipationofforeign citizens in activities of democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J., for three-judge court), ajf’d, 565 U.S. 1104 (2012). To that end, federal campaign- finance law broadly prohibits foreign nationals from making contributions, donations, expenditures, or other disbursements in connection with federal, state, or local candidate elections, and prohibits anyone from soliciting, accepting, or receiving such contributions or donations. As relevant here, foreign nationals may not make- and no one may “solicit,’ accept, or receive” from them- ” a contribution or donation of money or other thing of value” or “an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.” 52 U.S.C. § 30121(a)(l)(A), (a)(2).1283 The term “contribution,” which is used throughout the campaign-finance law, “includes” “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). It excludes, among other things, “the value of [volunteer] services.” 52 U.S.C. § 30101(8)(B)(i).

Foreign nationals are also barred from making “an expenditure, independent expenditure, or disbursement for an electioneering communication.” 52 U.S.C. § 30121(a)(l)(C). The term “expenditure” “includes” “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. §,30101(9)(A)(i). It excludes, among other things, news stories and non-partisan get-out-the-vote activities. 52 U.S.C. § 3010I(9)(B)(i)-(ii). An “independent expenditure” is an expenditure “expressly advocating the election or defeat of a clearly identified candidate” and made independently ofthe campaign. 52 U.S.C. § 30101(17). An “electioneering communication” is a broadcast communication that “refers to a clearly identified candidate for Federal office” and is made within specified time periods and targeted at the relevant electorate. 52 u.s.c. § 30104(f)(3).

The statute defines “foreign national” by reference to FARA and the Immigration and Nationality Act, with minor modification. 52 U.S.C. § 30121(b) (cross-referencing 22 U.S.C. § 61 l(b)(l)-(3) and 8 U.S.C. § 1101(a)(20), (22)). That definition yields five, sometimes- overlapping categories of foreign nationals, which include all of the individuals and entities relevant for present purposes-namely, foreign governments and political parties, individuals

outside of the U.S. who are not legal permanent residents, and certain non-U.S. entities located outside of the U.S. ·

A and willful[]” violation involving an aggregate of $25,000 or more in a calendar year is a felony. 52 U.S.C. § 30109(d)(l)(A)(i); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation will require some “proofofthe defendant’s knowledge ofthe law”); United States v. Danielczyk, 917 F. Supp. 2d 573, 577 (E.D. Va. 2013) (applying willfulness standard drawn from Bryan v. United States, 524 U.S. 184, 191-92 (1998)); see also Wagner v. FEC, 793 F.3d 1, 19 n.23 (D.C. Cir. 2015) (en bane) (same). A “knowing[] and willful[]” violation involving an aggregate of $2,000 or more in a calendar year, but less than $25,000, is a misdemeanor. 52 U.S.C. § 30109(d)(l)(A)(ii).

  1. Application to June 9 Trump Tower Meeting

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty ofestablishing the value ofthe offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

In brief, the key facts are that, on June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of”official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father.” The email described this as “very high level and sensitive information” that is “part of Russia and its government’s support to Mr. Trump-helped along by Aras and Emin.” Trump Jr. responded: “if it’s what you say I love it especially later in the summer.” Trump Jr. and Emin Agalarov had follow-up conversations and, within days, scheduled a meeting with Russian representatives that was attended by Trump Jr., Manafort, and Kushner. The communications setting up the meeting and the attendance by high-level Campaign representatives support an inference that the Campaign anticipated receiving derogatory documents and information from official Russian sources that could assist candidate Trump’s electoral prospects.

This series of events could implicate the federal election-law ban on contributions and donationsbyforeignnationals,52U.S.C.§3012l(a)(l)(A). Specifically,Goldstonepassedalong an offer purportedly from a Russian government official to provide “official documents and information” to the Trump Campaign for the purposes of influencing the presidential election. Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those materials. Documentary evidence in the form of email chains supports the inference that Kushner and Manafort were aware ofthat purpose and attended the June 9 meeting anticipating the receipt of helpful information to the Campaign from Russian sources.

The Office considered whether this evidence would establish a conspiracy to violate the foreign contributions ban, in violation of 18 U.S.C. § 371 ; the solicitation of an illegal foreign- source contribution; or the acceptance or receipt of “an express or implied promise to make a [foreign-source] contribution,” both in violation of 52 U.S.C. § 3012l(a)(l)(A), (a)(2). There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning ofthese provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

 

  1. Thing-of Value Element

A threshold legal question is whether providing to a campaign “documents and information” of the type involved here would constitute a prohibited campaign contribution. The foreign contribution ban is not limited to contributions of money. It expressly prohibits “a contribution or donation of money or other thing of value.” 52 U.S.C. § 3012l(a)(l)(A), (a)(2) (emphasis added). And the term “contribution” is defined throughout the campaign-finance laws to “include[]” “any gift, subscription, loan, advance, or deposit of money or anything ofvalue.” 52 U.S.C. § 30101(8)(A)(i) (emphasis added).

The phrases “thing of value” and “anything of value” are broad and inclusive enough to encompass at least some forms of valuable information. Throughout the United States Code, these phrasesserveas”term[s]ofart”thatareconstrued”broad[ly].” UnitedStatesv.Nilsen,967F.2d 539, 542 (11th Cir. 1992) (per curiam) (“thing ofvalue” includes “both tangibles and intangibles”); see also, e.g., 18 U.S.C. §§ 20l(b)(l), 666(a)(2) (bribery statutes); id. § 641 (theft of government property). For example, the term “thing of value” encompasses law enforcement reports that would reveal the identity of informants, United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979); classified materials, United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991); confidential information about a competitive bid, United States v. Matzkin, 14 F .3d 1014, I 020 (4th Cir. 1994); secret grand jury information, United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985); and information about a witness’s whereabouts, United States v. Sheker, 618 F.2d 607, 609 (9th Cir.

1980) (per curiam). And in the public corruption context, ” ‘ thing of value’ is defined broadly to include the value which the defendant subjectively attaches to the items received.” United States v. Renzi, 769 F.3d 731,744 (9th Cir. 2014) (internal quotation marks omitted).

Federal Election Commission (FEC) regulations recognize the value to a campaign of at least some forms of information, stating that the term “anything of value” includes “the provision of any goods or services without charge,” such as “membership lists” and “mailing lists.” 11 C.F.R. § 100.52(d)(l). The FEC has concluded that the phrase includes a state-by-state list of activists. See Citizens for Responsibility and Ethics in Washington v. FEC, 475 F.3d 337, 338 (D.C. Cir. 2007) (describing the FEC’s findings). Likewise, polling data provided to a campaign constitutes a “contribution.” FEC Advisory Opinion 1990-12 (Strub), 1990 WL 153454 (citing 11 C.F.R. § 106.4(6)). And in the specific context of the foreign-contributions ban, the FEC has concluded that “election materials used in previous Canadian campaigns,” including “flyers, advertisements, door hangers, tri-folds, signs, and other printed material,” constitute “anything of value,” even though “the value ofthese materials may be nominal or difficult to ascertain.” FEC Advisory Opinion 2007-22 (Hurysz), 2007 WL 5172375, at *5.

These authorities would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply. A campaign can be assisted not only by the provision offunds, but also by the provision of derogatory information about an opponent. Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value. At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.

  1. Willfulness

Even assuming that the promised “documents and information that would incriminate Hillary” constitute a “thing of value” under campaign-finance law, the government would encounter other challenges in seeking to obtain and sustain a conviction. Most significantly, the government has not obtained admissible evidence that is likely to establish the scienter requirement beyond a reasonable doubt. To prove that a defendant acted “knowingly and willfully,” the government would have to show that the defendant had general knowledge that his conduct was unlawful. U.S. Department ofJustice, Federal Prosecution ofElection Offenses 123 (8th ed. Dec. 2017) (“Election Offenses”); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation requires “proof of the defendant’s knowledge of the law”); Danielczyk, 917 F. Supp. 2d at 577 (“knowledge of general unlawfulness”). “This standard creates an elevated scienter element requiring, at the very least, that application ofthe law to the facts in question be fairly clear. When there is substantial doubt concerning whether the law applies to the facts of a particular matter, the offender is more likely to have an intent defense.” Election Offenses 123. ·

On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context. The government does not have strong evidence of surreptitious behavior or effo11s at concealment at the time of the June 9 meeting. While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter, see Volume II, Section II.G, infra, that concealment occurred more than a year later, involved individuals who did not attend the June 9 meeting, and may reflect an intention toavoidpoliticalconsequencesratherthananypriorknowledgeofillegality. Additionally,inlight of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge ofthese legal issues.

iii. Difficulties in Valuing Promised Information

The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment. See 52 U.S.C. § 30109(d)(l). The type of evidence commonly used to establish the value of non-monetary contributions-such as pricing the contribution on a commercial market or determining the upstream acquisition cost or the cost of distribution-would likely be unavailable or ineffective in this factual setting. Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable. And while value in a conspiracy may well be measured by what the participants expected to receive at the time of the agreement, see, e.g., United States v. Tombrello, 666 F.2d 485, 489 (11th Cir. 1982), Goldstone’s description of the offered material here was quite general. His suggestion of the information’s value-i.e., that it would “incriminate Hillary” and “would be very useful to [Trump Jr.’s] father”-w as non- specific and may have been understood as being of uncertain worth or reliability, given Goldstone’s lack of direct access to the original source. The uncertainty over what would be delivered could be reflected in Trump Jr.’s response (“ifit’s what you say I love it”) (emphasis added).

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.

Mueller 183-188

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George Marshall vs. John Brennan

The media is going crazy about the fact that Donald Trump revoked the security clearance of former CIA chief John Brennan.  Trump has been criticized by a number of senior former intelligence and military professionals.  The media has particularly emphasized the letter by retired Adm. William McRaven, who was the Navy Seal commander.  I particularly look up to former CIA chiefs Robert Gates and William Webster, who wrote to support Brennan.

More than them, however, I look up to World War II General George Marshall, who went on to be Secretary of State and namesake of the Marshall Plan.  As General Petraeus said in this interview with the Armed Forces Journal, General Marshall did not vote, because he felt that even the slightest degree of political participation would compromise his professional independence and judgment.  In this article, General Petraeus said he had not voted since he was a major general.

Of course, none of the people signing these letters was an active duty officer.  Nevertheless, the non-political position taken by Marshall and other conscientious officers illustrates the importance of nonpartisanship among the military and other public servants.  If these officers feel so strongly about an issue that they cannot continue to serve, then they have to leave the service.  This is what happened to the State Department’s Foreign Service during the first year of the Trump administration under Secretary of State Tillerson.  The Foreign Service lost many of its senior officers.

The US has had a number of military presidents, starting with George Washington, but by and large they have retired and gone through the traditional political process.  One exception to this military deference to the political system may be General Douglas MacArthur.  MacArthur appeared to defy President Truman’s orders during the Korean War.  When he tried to appeal to Congress and the people over Truman’s head.  The firing led to a Constitutional crisis; Truman’s popularity fell to 22 percent, but he prevailed and MacArthur faded away.

Compared to George Marshall’s non-partisanship and MacArthur’s firing, the removal of John Brennan’s security clearance is nothing.  Brennan appeared to be a strong supporter of Hillary Clinton and the Democratic Party while he was still head of the CIA.  His partisanship, combined with the accusations of Russian interference in the US election placed a huge cloud over the CIA and the rest of the intelligence community from President Trump’s perspective.  He thought that the Democrats were trying to invalidate his election and that the CIA was helping them.  Pompeo’s terms as head of the CIA seems to have helped close the rift between Trump and the CIA, but tensions remain because of the continuing Mueller investigation.  Brennan, who has accused Trump of treason, clearly wants to see Trump removed from office.  We’ll see whether that happens.  Trump certainly has no obligation to help Brennan remove him from office.

The New Yorker on Bill Browder

This New Yorker article, “How Bill Browder Became Russia’s Most Wanted Man,” discusses a number of people who worked on passing the Magnitsky Act, most of whom were Jewish, including:
Bill Browder himself
Edmond Safra, Browder’s billionaire partner in Hermitage Capital
Senator Ben Cardin
Ambassador Dan Fried
David Kramer of Freedom House
Stephen Sestanovich of the Council on Foreign Relations
The Ziff brothers, millionaire friends of Browder

Sergei Magnitsky, Browder’s tax lawyer and accountant who was killed in a Russian prison and was immortalized in the Magnitsky Act, was not Jewish; he was an ethnic Russian.

According to the New Yorker article, the men working to pass the Magnitsky Act wanted to find a substitute for the 1974 Jackson-Vanik Act, since that old law would become unenforceable when Russia joined the World Trade Organization and the US had to drop discriminatory trade legislation in 2012.  Jackson-Vanik was designed to help Jews get our of the old Soviet Union.  Although Senator Jackson was not Jewish, his staffers who worked to pass it became some of the leading Republican Jewish foreign policy officials in the United States: Richard Perle, Paul Wolfowitz, Elliot Abrams, and Doug Feith.  According to the Bush White House, the Jackson-Vanik Amendment helped an estimated 600,000 Jews emigrate from Russia to the US, and another 1,000,000 to emigrate to Israel.  Instead of applying to emigration by ordinary Jews, the Magnitsky Act applies to some of the oligarchs who surround Putin; it prevents them visiting or doing business in the US.

While lobbying for the bill, Browder presented a list of 280 Russians to be sanctioned.  The US initially sanctioned 18, and later added 31 more.  A significant number of Putin’s oligarchs are Jewish, and some of them are included in the Magnitsky sanctions, such as Viktor Vekselberg, for example.  It seems strange that Jackson-Vanik, which broke down Soviet restrictions on Jewish travel has been replaced by Magnitsky which imposes American restrictions on Jewish travel, but there are probably some Jewish issues I don’t understand.

From Magnitsky’s viewpoint, I think it is mainly about money.  Browder’s Russian hedge fund, Hermitage Capital, made him a billionaire.  Putin kicked Browder off the Russian gravy train, and Browder wanted revenge on Putin.  Somehow he played this move in a way that attracted the support of the US Congress, led by Senator Ben Cardin, despite resistance by the Obama administration.  It may have gained support mainly from legislators who did not like Putin, and who thought the Act said, “Hey, Putin, take that! We hate your guts!”

In response, Putin banned Americans from adopting Russian children.  This doesn’t seem to have much to do with the Magnitsky issues, but it may have been something that came up for review about the same time and gave Putin a little something to retaliate with.  This is the reason the Trump campaign initially said the famous Trump Tower meeting with the Russian lawyer Veselnitskaya was about adoption.  It was, because that’s the Russian half of the Magnitsky saga.

According to the New Yorker article, Veselnitskaya worked for the wealthy Russian Katsyv family.  Browder got the government to bring charges against the Katsyv family, which he said had brought some of Hermitage’s tax money into New York to buy property,  Veselnitskaya hired Glenn Simpson of Fusion GPS, the same Fusion GPS that hired the former British spy Christopher Steele to spy on Trump in Russia. While it seems farfetched and doesn’t seem to have come up in the Trump Tower meeting, the Russian Katsyv response to Browder’s charges played up Browder’s connection to the Ziff brothers (American Jewish millionaires who donated a lot to the Democrats), the implication being that Hillary’s campaign may have “colluded” with the Russians through the Ziff connection.

In a deposition related to the Katsyv case, Browder said he did not regularly talk directly to Magnitsky or Magnitsky’s lawyers.  This indicates to me that Browder didn’t really care that much about Sergei Magnitsky and his “human rights” but was more concerned about the financial implications for his business in Russia.  Yet, somehow, as a native-born American citizen who had renounced his American citizenship, he persuaded the US Congress to pass a bill that gave him revenge against Putin in the name of “human rights.”

I am guessing from his name that Joshua Yaffa, who wrote this article is also Jewish. Although there was a  lot of rehashing of old news reports and Bill Browder’s book, Red Notice, it did shed some interesting new light on the issue.  It did not change my opinion that Putin is probably justified in hating Bill Browder, who is a slimeball.

 

 

John Oliver on Trade

I just watched John Oliver’s “Last Week Tonight” show on trade and I was disappointed.  Usually his main topic is well done, but tonight’s was not.  He said there is no such thing as a trade deficit, when clearly there is.  Just Google “trade deficit.” Investopedia says:

A trade deficit is an economic measure of international trade in which a country’s imports exceeds its exports. A trade deficit represents an outflow of domestic currency to foreign markets. It is also referred to as a negative balance of trade (BOT).

From <https://www.investopedia.com/terms/t/trade_deficit.asp>

Oliver seems to be saying, as many anti-Trump people do, that there is no trade deficit because you get something for the money you send to another country.  We may pay China much more for goods than China pays us, but we get lots of T-shirts in return for the extra money.  This is like saying that you can charge all you want on your credit card, because you get lots of stuff for the money you charge.  At some point, you have to pay the bill.  That is true in trade, too.

He also criticized the amounts cited by the administration as “trade deficits.”  He probably has a point but only regarding the definitions.  The huge numbers cited as “trade deficits” were probably numbers for a “balance of trade over an extended period.”  The Census Bureau says the monthly US trade deficit in goods with China for 2018 averaged around $35 billion.  The New York Times, hardly a conservative mouthpiece, said the annual 2017 “trade deficit” with China reached a record $375.2 billion.  The US finances its trade deficit with China by giving China IOUs, selling bonds to China that the US will have to pay off or roll over one day.  Bloomberg reported that China last year held $1.18 trillion of US debt, up $126.5 billion from the previous year.

Oliver also said that a tariff is stupid because it is a tax on ourselves, which is to some extent true, but he ignores the fact that there are various purposes for taxes.  The point of a tariff is not at this time to raise money, but to penalize what appears to be bad conduct.  It’s true that raising prices of aluminum and steel will raise the price of goods made from aluminum and steel in the US in the short term.  But if China subsidizes its steel exports to the US to make Chinese steel so cheap that no one in the US will buy American steel, then American steel companies will go bankrupt.  Then, when there are no American steel producers, China can raise the price of its steel to whatever it wants, and American end users will find themselves paying much higher prices for steel and having to raise prices for US consumers, or go out of business.

Oliver said trade is a complicated issue, but then he tried to oversimplify it, doing a disservice to his viewers.  Trump’s trade adviser, Peter Navarro, is not a conventional economist and is probably leading our trade discussions (or war) in the wrong direction.  But Oliver made Navarro look good by failing to present an accurate picture of the US trade situation.

 

Leaving the Foreign Service

My Foreign Service career was not going well in Rome.  The embassy did not want me there.  There was a civil service employee in the State Department in Washington whom they wanted for the job.  I’m not sure why, but I think maybe the Ambassador or my predecessor who was forced to leave by the State Department, had picked him out.  The Ambassador wanted him and my boss the Economic Minister wanted to please the Ambassador by getting him.  Or maybe the Economic Minister was the one who wanted him.

When the State Department told my predecessor in Rome that he had to leave because he had served the maximum eight years as a Schedule C political appointee, I think the Embassy tried to get the civil service employee to replace him, but the Foreign Service balked, because it was a Foreign Service job which should be filled by a Foreign Service officer.  Thus, I got a call in Warsaw from the State Department personnel office, asking if I would be willing to move to Rome and take the job.

My job was not going well in Warsaw.  I had been assigned there primarily to oversee a joint science cooperation program, named after Madam Curie, the Maria Sklodowska Curie Fund.  The US and Poland had signed an agreement to fund the program for five years, starting the year before I arrived.  The first year it was funded with $2 million from each side, and received the same amount the second year, the first year I was in Poland.  Bill Clinton was President, but after the second year, the Republicans under Newt Gingrich took over Congress and refused to fund future years, despite the agreement between the US and Polish governments.  I still remember my last meeting with the Assistant Secretary of the Polish Foreign Ministry who was responsible for the entire Western Hemisphere, and who upbraided me as the representative of the United States for dishonestly failing to fulfill formal promises that we had made.  I was ashamed of my country and myself.

In addition, one of my policy responsibilities in the Embassy was the environment.  As part of the USAID program to assist Poland after the fall of Communism, the US undertook a number of envonmental projects to help clean up Poland.  One was to build a scrubber on an old coal-fired plant generating electricity for the Krakow area.  The pollution had been so bad under the Communists that rain was turning into sulfuric acid and eating away some of the old statues and buildings in Krakow.  USAID had a big dedication for the scrubber when it was completed; it was supposed to remove most of the sulfur from the smokestack emissions.  After a while, one of my Polish contacts came to me and said the scrubber was not working.  I didn’t really want to know that, because I did not want to interfere with the AID mission’s programs, but I felt like I had to look into it.  When I did, it turned out that he was right.  The scrubber design worked fine in the United States with the limestone found in the US, but it did not work with Polish limestone, which was a poorer quality.  I would only work if limestone were imported from another country, which was logistically and financially impossible.  To make matters worse, my contact had me visit another power plant with a scrubber build by the Netherlands, but using General Electric technology.  It worked well.

I was reaching the end of the second year of my two-year tour in Poland.  The Ambassador had said that since the cooperation program had been cancelled by Congress, the embassy did not need a science counselor; so, I would not be replaced, but I could stay on for the third year.  About that time, the personnel office in Washington called and asked if I would be willing to go to Rome.  That sounded like a great job, while the one in Poland was self-destructing; so, I said yes.

Rome wanted me to come right away, but I had one good thing going in Warsaw.  As part of the US assistance program for Poland after the fall of Communism, we (my backstop in Washington and I) got the US Treasury to agree to forgive $10 million of US debt, if the Poles would agree to use it for environmental purposes.  I worked with a Polish NGO, the Ekofundusz (Ecofund), to get this money for them to use.  I wanted to attend the first meeting of the Ecofund after they got the money to make sure that everything was in order.  The reason they wanted me in Rome so quickly was that Italy was about the assume the rotating presidency of the European Union, with meant an increase in work for the embassy in Rome, because it had to deal with Italians on all EU matters as well as on all bilateral Italian matters, more or less doubling the workload.  It worked out that the annual meeting of the Ecofund was a week or two before Italy assumed the EU presidency, which gave me the opportunity to do both things.

The Ecofund meeting went smoothly, but it turned out that day I was planning to leave for Rome was the day Newt Gingrich shut the government down.  All of our household effects had been packed; the car was packed with two dogs and suitcases for the drive to Rome ready to leave at 5:00, when Rome called and said, “Don’t come.”  It meant I had no job, no place to live, no idea what to do next.  It turned out that in Rome the Deputy Chief of Mission (DCM, deputy to the Ambassador) was someone I knew from a previous assignment.  He said to go ahead an leave for Rome; he would work something out.

When we arrived in Rome, everything was pretty much a mess, because the embassy was closed except for a skeleton staff.  I turned out that I was part of that skeleton staff, because that was the only way my travel had been approved.  Of course I knew nothing about the embassy or my new job.  To make matters worse, the Administrative Minister, the person responsible for running the day-to-day activities of the embassy, was a woman literally dying of cancer.  As she was a long time Foreign service officer, the State Department had agreed to let her stay in Rome as long as she could.  This meant, however, that she was hardly working and was very seldom in the embassy.  During the government shutdown, all of her assistants were working their little fiefdoms — housing, personnel, finance, etc. — but without supervision.

The first sign, other than the government shutdown, that something was wrong, was that the embassy had no housing for my wife and me.  My predecessor had obviously lived somewhere, but the embassy would not tell me anything about it.  My impression was that because he had been a political appointee and a confidant of the Ambassador, he had had a much nicer apartment than he would have ordinarily received for his position, and they were not willing to let me have it.  There as a rumor that there was one empty apartment the day we arrived, but that it had been given to a DEA agent who had arrived a few hours earlier than we did.  I thought this was strange because the State Department runs the administration of the embassy, even for other agencies like DEA.  Thus, I thought normally State Department officers would have assigned the empty apartment to a fellow FSO and let the DEA wait for an apartment.  I was surprised to see the State Department give precedence to a DEA officer over a fellow State Department officer.  We ended up in a temporary apartment for months as the embassy said it could find nothing available for us on the Roman rental market.

In addition, after my predecessor left, the office had been remodeled.  The embassy is an old palace where every room opens on to a central hall, but because of embassy security, some of the doors had to be locked.  As a result, there was no way to get to my assistant’s office except by going through my office.  I suppose I could have switched offices with her, but it seemed silly and petty to do so.  Nevertheless, it bothered me that it looked like I was her receptionist when she had visitors.

Just about the day I arrived, my office was being sued in New York by four environmental organizations for failing to force Italy to comply with UN resolutions regarding fishing for swordfish in the Mediterranean.  The Italians often used long driftnets which had been outlawed.  The environmental organizations won the case, with the result that a Federal District Judge in New York had ultimate responsibility for approving any actions taken by my office with regard to fisheries to assure that they complied with UN regulations.  In theory he would run every action by my office by the environmental organizations for their approval.  In practice this usually meant they would ask the Greenpeace office in Rome for its approval.

Despite the fact that I had worked on scientific and environmental issues for years at the State Department, I had never worked on fisheries issues before.  Fisheries had its own bureaucracy, laws and regulations which were unfamiliar to me.  My assistant had worked on fisheries issues in previous jobs, and had been working on the issue since she had arrived in Rome.  I was happy to leave the issue to her, although it was a big part of the office’s responsibilities.

We had a big bilateral meeting in Rome with a delegation of 10 or 20 officers from Washington meeting in Rome with their Italian counterparts.  My assistant and her Italian counterpart worked out a plan, which was ratified by the meeting.  In a few months, however, the issue blew up again.  Most of the fishermen lived in Sicily and resented the new restrictions under which they were supposed to work.  They hired Mafia assassins who threatened to kill the Italian officials who were supposed to enforce the agreement, and they organized big protests in downtown Rome that tied up traffic for miles.  When this blew up, my assistant became very sick.  The Agriculture Minister called in the Ambassador because he was afraid some of his officials were going to be killed by the Mafia, and said we had to relax the restrictions.  My assistant could not brief the Ambassador or work on a solution, which fell to me.  The Ambassador was very unhappy about being called in by the Minister.  My main job was to tell the Ambassador that he could not agree to anything without first getting the approval of the judge in New York, which further angered him, since he felt that as the Ambassador he should have been able to speak for the US, which would have been true except for the lawsuit.  One of my last acts in Rome was to work out a compromise that was accepted, although I don’t know long it lasted after I left.  I left with the Ambassador mad at me, although the fisheries problem had been going on for years before I arrived in Rome, and I had had no role in the lawsuit.  However, I had agreed to the original solution worked out at the big bilateral meeting after I arrived, which had led to the Mafia threats.

While I was in Rome, the Italians flew a joint mission on the Space Shuttle to test a tethered satellite which was released on a wire from the Shuttle while it was in orbit and then was supposed to be reeled back in so that it could be used again.  While the satellite was deployed, the wire broke, and the satellite drifted off into space.  I had worked with NASA on space issues in other jobs before, and was much more familiar with these issues than fisheries.  In general NASA was a great selling point for the US.  Everybody loved NASA and the Shuttle and wanted to work with us.  Thus, this mission was unusual because it appeared to have failed, although part of the reason for it was to experiment with the method.  The Shuttle crew came to Rome to brief Italians scientists on the mission, but unlike most NASA visits, this one was sort of an apology tour.  It was awkward for me, the Shuttle crew, and my Italian contacts.

In a different space matter, the US had agreed to launch a communications satellite for the Italians.  They had a big cocktail party timed to coincide with the launch.  At the party, one of the Italian telecommunications officials came up to me and said something like, “Your government must really hate me.”  I was taken aback and asked him why he thought that.  He said that he had wanted to give his daughter a trip to Disney World, but that the US had denied her a visa to travel to the US.  I said I would look into it.  When I did, I found that the Italian communications ministry has some connection with the Cuban telecommunications ministry and because of that the Helms-Burton Act prohibited that official or any members of his family from traveling to the US.

Sometime in the past, I had read Herman Wouk’s “Winds of War” and “War and Remembrance.”  In that story, the Jewish heroine who was living in Rome during World War II wanted to travel to Israel, but the Nazis in Rome would not give her child an exit visa, which effectively prevented her from leaving. I found the parallels uncomfortable and disturbing, but it was illegal to give the daughter a visa.

As the science officer in Rome, I handled nuclear non-proliferation matters.  Thus, I was the responsible officer when the US was unable to meet its obligations to North Korea under the 1995 Agreed Framework that set up the Korean Peninsula Energy Development Organization (KEDO) to oversee North Korea’s agreement to end its nuclear weapons program in return for two light water nuclear power reactors that would not produce bomb grade nuclear materials.  While I was in Rome, the Republican Congress refused to fund the US payments for its part of the agreement.  As a result, I had to go hat in hand to ask Italy, as the Presidency of the European Union, if it would fund the money the the US Congress refused to provide.  This was too much like my experience in Poland when the US Congress refused to fund the Maria Sklodowska Curie Fund despite a formal agreement to do so.  In addition , the failure to fund KEDO would give North Korea an excuse not to abide by the agreement and to revert to its production of nuclear weapons.  I was unhappy to once again be part of an American failure to meet its international commitments.

I had joined the Foreign Service to see how the government worked.  After college, I had been drafted and sent to Vietnam, where I served in an artillery battery in the A Sau Valley, on the Laotian border, and on the DMZ.  I came home to be classified as a baby-killing war criminal, simply because I had not tried to get out of the draft.  I wanted to see what had plucked me out of my comfortable life and sent me into combat in Vietnam.  Once in the Foreign Service I wanted to do good — be part of the solution and not part of the problem.  My last two assignments, in Warsaw and Rome, had not made me feel part of the solution.  So, I decided to retire, since I was eligible to do so.

When I decided to retire and the embassy had to replace me, it became obvious that they did not want me to be replaced by a Foreign Service officer. The embassy had identified a Civil Service officer at the State Department whom it wanted in my job.  Apparently, the embassy had tried to get him to replace my predecessor, but the State Department had tried to keep the Foreign Service position filled by a Foreign Service officer.  That was why I had gotten that unexpected call in Warsaw asking if I would be willing to go to Rome.  The State Department was trying to force Rome to fill the position with a Foreign Service officer.  Apparently that was why Rome did not welcome me and resisted providing me with an apartment and in general making my assignment there difficult.

The odd thing was that the person they wanted in my position worked in the State Department office that was supposed to support and backstop science officers in the field.  In my Washington assignment before Warsaw, I had worked on environmental issues in an office across the hall from his office.  It appeared that the office that was supposed to have my back had actually stabbed me in the back.  Because I was retiring outside of the normal summer assignment cycle the embassy was able to manipulate the system to get the man they wanted.  I was so disgusted with the whole system that I did not protest.  On the day before I was actually set to leave Rome and return home, the State Department retirement office informed me that they had miscalculated my retirement pension and that I would receive less than they had promised when I was negotiating my retirement.  That was like a last insult from an organization that for some reason seemed to have turned against me.

Unfortunately, my service in the Army in Vietnam and my twenty-five years in the Foreign Service left a bad taste in my mouth about the integrity and decency of the United States government.  I felt that I had served my country patriotically but had been abused because of it.  I guess I think (to paraphrase Churchill) that the US is the worst of countries, except for all other countries.  I try to love it, but I look at it with a jaundiced eye.