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:

3. Campaign Finance

Several areas of the 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.

a. Overview Of Governing Law

"[T]he United States has a compelling interest... in limiting the participation of foreign 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 of the 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 "proof of the defendant's knowledge of the 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).

b. 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 of establishing the value of the 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, Goldstone passed along 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 of that 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 of these 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).

i. 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 of value." 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 phrases serve as "term[s] of art" that are construed "broad[ly]." UnitedStatesv.Nilsen,967F.2d 539, 542 (11th Cir. 1992) (per curiam) ("thing of value" 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 of these 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 of funds, 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.

ii. 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 of Justice, Federal Prosecution of Election 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 of the 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, in light 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 of these 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 ("if it’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

What's Up with American Ambassadors to Canada?

Trump is switching from one strange woman to another as ambassador to Canada.  Don’t we have somebody more professional to send?  In the process we are sending an ambassador who did a questionable job in Canada to be the new US ambassador to the UN. 

The outgoing US ambassador to Canada, Kelly Knight Craft, was absent from Canada during much of her tenure.  Politico reports that at her confirmation hearings for the UN job, the Democrats displayed a chart showing that she had been outside of her post in Canada for over 300 days, about half of her tenure in Canada.  Craft’s main qualification for the Canada post seems to be that she is married to Kentucky coal billionaire Joe Craft, a big political donor.  Globalnews reported that in 2016 she gave $265,400 to Trump’s campaign.   Her husband gave $2 million to Karl Rove’s American Crossroads Super PAC in 2016 and hundreds of thousands to other super PACs in the last few years. 

The incoming US ambassador to Canada is another political donor, Aldona Wos from North Carolina. The Toronto Globe and Mail says she is a retired physician and philanthropist who was born in Poland and whose father was survived the Holocaust.  She served on the board of the US Holocaust Memorial and as Ambassador to Estonia from 2004 50 2006.  Her husband is technology executive Louis DeJoy.  The Charlotte Business Journal says he has a long history as a Republican supporter and contributor and has been raising money for Charlotte to serve as the site of the Republican National Convention in 2020.   

On its HBO TV show, Axios reported on how badly the Trump administration had handled vetting for senior administration officials.  According to the show, Chris Christie had prepared many briefing books with potential candidates for all the top jobs, but Trump fired Christie and threw out his work, probably because Christie had prosecuted Jared Kushner’s father and put him in jail.  Junior staffers and the Republican National Committee then took over the job of vetting candidates, and according the Axios (and the rapid turnover of senior officials), they did a poor job.  The high number of “acting” officials in the Trump administration indicates that Trump is still having a hard time finding qualified personnel for important jobs. 

Hard Times at the State Department

I listened to part of the webinar by outgoing AFSA president Barbara Stephenson.  She said the temporary draw-down at the embassies in Iraq and Afghanistan are being made permanent. Other embassies are also being reduced.  The Iraq reduction is something like 75%.  This means that many positions will not be filled, and that many officers will not be going to the posts they were assigned to.  In addition, it sounds like the administration has requested further budget reductions for the State Department.  Even after the many senior Foreign Service officers who left because of polity disagreements under Secretary Tillerson, there still many senior officers who do not have assignments because of the staff reductions at many embassies. 

I would guess that at least part of the problem is that the Republican administration views the career Foreign Service as too liberal.  There is probably some truth to that perception.  But while many officers may personally lean Democratic, they do let their personal politics enter into their work representing the US overseas, just as military officers perform their duties without reference to their personal politics.  Within the US government, Foreign Service officers will argue for policies that they believe are best of the US, which might mean arguing against some conservative policy proposals, but once the internal debates are over, the officers will soldier on and argue for the policies that have been agreed on when they represent the US to foreign governments. 

It’s sad that after the Iraq war, the Defense Department under Sec. Robert Gates argued for more State Department officers in Iraq.  He pointed out that there were fewer FSOs than there were members of military bands.  He argued that often diplomacy was better than military force.  Now, we don’t even have a Secretary of Defense. 

It’s hard to replace senior Foreign Service officers because much of their value comes from years of serving in countries that are of concern to US foreign policy.  They know the language, the culture, and often many of the senior officials running the country.  When they leave with their 20 or 30 years of knowledge and experience, it will take 20 or 30 years to replace them. 

Anonymous Sources at NYT

 The failure of the Mueller report to find clear evidence of collusion between the Trump campaign and the Russians makes the New York Times stories about collusion look incorrect and poorly reported.  One of the main problems is the use of anonymous sources.  It looks like NYT reporters have either been making up their stories or their sources have been lying to them.  In any case, the NYT has embarrassed itself and soiled its reputation.  It has proved Trump’s claims of “fake news” to be true.  This is a shame because the NYT in the past has been an excellent newspaper. 

The NYT, like the rest of the Democratic, liberal establishment has been unable to accept Hillary Clinton’s loss in the last election.  The Democrats and the NYT took up the cry of “collusion” between Trump and the Russians as a means of removing Trump from office.  As time went on, however, it became less and less likely that they would be able to do so.  Trump became too firmly established in office, and concrete evidence of collusion failed to appear.  The Democrats turned from trying to change the election results to trying to impeach Trump. 

The Democrats had a handful of accusations that they touted continuously, such as the Trump Tower meeting with the Russian lawyer Veselnitskaya, and the Steele dossier on Trump’s activities in Russia.  I don’t see that anything illegal happened at the Trump Tower meeting.  If the Russians had claimed that Hillary was spying for them, wouldn’t the Trump campaign have been justified in finding out if there was anything to those claims?  Do the Democrats and the NYT believe that Hillary is above reproach and that and to suspect her any wrongdoing is treason?  The NYT and the Democrats are guilty of such blind devotion to Hillary that they cannot see the world as it is. 

The Democrats have betrayed the US by spending all of their time trying to invalidate the last election.  The real problem is that Trump is a bad President, most recently illustrated by his firing of Homeland Security Secretary Kirstjen Nielsen and naming of Stephen Moore and Herman Cain to the Fed.  He can’t keep competent people in his administration and surrounds himself with ideological idiots.  If they were responsible, the Democrats should be trying to keep the US from running off the rails, rather than just throwing up roadblocks to governing and making ad hominem attacks on Trump. 

They need to focus less on ideological purity and more on getting things done.  For example, on the border, they need to focus on what to do about a genuine influx of refugees on the border, rather than on the insensitive handling of a few immigrant children.  A slew of House committee meetings on whether Trump colluded with the Russians will not help govern America.  They will just consume the time of the House and the Administration.  The House and the Senate should try to pass some bipartisan laws reigning in the President.  The huge budget deficit and national debt should be something that some Republicans are interested in, perhaps getting enough Republicans to support a bill passed by the House, hopefully avoiding another government shutdown.  It will be hard, but Sen. McConnell appears to be getting fed up with Trump and may be willing to challenge him on something dear to the Republicans’ hearts, like fiscal responsibility.  They could try to force Trump to name permanent Cabinet secretaries, perhaps by cutting off the salary of any person who has been “acting” in a position that require Congressional approval for more than a year, not the whole agency, just the official, unless perhaps he is granted a Congressional waiver in cases of hardship. 

There are lots of things that need to be done.  The Democrats should let Trump have immigration as his issue, and focus on other, more important things, like the deficit, healthcare, or Income inequality.  Forget the Green New Deal for now and focus on smaller, more achievable goals.  In the meantime, try to maintain good relations with our traditional allies, despites Trump’s insulting rhetoric toward them, try to keep the economy on a sound basis, try to prevent the social safety net from being completely destroyed, and just try to keep America running in a reasonable way.  If the Democrats were patriots, they would take on the job of getting the country through this trying time of the Trump Administration in the least damaging way possible.  Instead, every Democratic leader in Congress seems to be grandstanding by running for President.  What about doing the job at hand?  

The 1995 Government Shutdown

November 14, 1995, was the day the Federal Government shut down.  I was at the American Embassy in Warsaw, Poland, and was supposed to leave on that day to drive to Rome to take up my new assignment at the American Embassy there.  Everything had been moved out of our house in Poland and shipped to Rome, except for what was packed in the car, which included our two dogs.  Just about half an hour before I was to leave Warsaw, I got a call from Rome, saying, “Don’t leave.”  I had no place to go except to live in the car or check into a hotel, with most of my belongings, including most of my clothes, en route to Rome. 

I was furious and called Rome to get them to rescind the order, but they wouldn’t.  Then I found out that the number two officer in Rome, the Deputy Chief of Mission (DCM), was a friend I had served with in Brasilia, Brazil.  I called him, and he agreed to unfurlough me and allow me to travel to Rome.  When I arrived in Rome, I didn’t know anything about my job, such as who my Italian contacts were, but I was the only one in the office who was not furloughed.  I had to carry out the duties of the office while the shutdown continued. 

I was doubly angry because it had not been my idea to move from Warsaw to Rome.  The State Department in Washington had asked me to go because the Science Counselor in Rome had reached the end of his temporary assignment to the State Department and had to leave.  Just as he was leaving, Italy was assuming the rotating Presidency of the European Union, which meant an increase in work for the embassy because the Embassy and the Italian Government would have to deal with all EU issues as well as the normal bilateral issues between the US and Italy. 

I’m still not sure what happened, but I think that Ambassador Reginald Bartholomew and the State Department had a running feud because the State Department would not approve permanent status for the Ambassador’s friend who had been serving as Science Counselor.  Thus, I arrived apparently imposed on the Ambassador by the State Department in Washington, and he did not want me.  As a result, my wife and I had to stay in temporary housing for months because the embassy could not find a place for us to live permanently. 

I think that because the Foreign Service had refused to accept the Ambassador’s friend into its permanent ranks, the Ambassador wanted to prevent the Foreign Service (me) from filling the job.  Thus he identified a civil service employee in Washington whom he wanted to fill the job.  Ironically this man worked in the office that was supposed to support Foreign Service science officers in the field.  He ended up displacing a Foreign Service officer (me) whom he should have been supporting. 

In any case, the episode led to my retiring from the Foreign Service, which I felt had stabbed me in the back.  The whole business, the government shutdown and the antagonism from the embassy staff left a bad taste in my mouth, although I had enjoyed most of my career in the Foreign Service.  It was a disappointing way to leave, and the government shutdown played a memorable, nasty role in my retirement.    

China and the MTCR

In his book The Hundred Year Marathon, Michael Pillsbury spends several pages discussing China’s role in and attitude toward the Missile Technology Control Regime (MTCR).  I was one of the first people to work on what became the MTCR, because President Jimmy Carter had several people who wanted to create something like the Nuclear Non-Proliferation Treaty (NPT) to limit the proliferation of missile capable of delivering a nuclear warhead.  I was a junior officer working in the State Department Bureau of Intelligence and Research INR), State’s small intelligence operation that works with the other intelligence organizations, such as the CIA and NSA.  I became the main person in INR working on the issue.  When Carter was defeated by Reagan, the Carter people who had been working on the issue left, and when the Reagan people arrived, I was one of the few people who knew anything about the issue.  It took about ten years, but eventually the MTCR came into being as an international agreement.  It is not a treaty that limits missiles, but an export control regime that limits trade in things that problem nations like North Korea and Iran could use to develop their own missiles. 

Pillsbury says that when the US offered to increase space cooperation with China in 1998, China refused the offer.  China was more interested in exporting missiles to rogue states that in cooperating with US.  China has agreed to abide by the MTCR standards, but it is not a member.  When the MTCR first offered China membership, China declined to formally join.  Later China offered to join, but the MTCR demurred because it was not sure that China would abide by its rules.   

President G.H.W. Bush and the Biodiversity Convention

While George H.W. Bush was President, the UN held a big environmental meeting in Rio de Janeiro, Brazil, called the UN Conference on Environment and Development (UNCED) in June 1992.  Two of the issues UNCED would consider were global warming and the conservation of ecosystems, species, and genes.  The main climate change document under consideration was the UN Framework Convention on Climate Change (UNFCCC).  The main document dealing with conservation was the Convention on Biological Diversity (CBD). 

I was deputy director of the State Department office with primary responsibility for the CBD.  The office next door was responsible for the UNFCCC.  The director of my office spent most of the year leading up to the Rio conference in Nairobi, Kenya, negotiating the CBD text that was to be presented in Rio. 

In preparing to go to Rio, President Bush basically said he could not support two environmental agreements.  His Republican base would not stand for it.  He came down on supporting the climate change convention, but refusing to sign the biodiversity convention.  The job of opposing the biodiversity convention appeared to fall on Vice President Dan Quayle’s office.  His chief of staff was William Kristol, who still writes and appears on TV regularly as a Republican pundit.  Quayle, Kristol, and their staffers made sure the US would not sign the CBD.  My boss, Assistant Secretary Buff Bohlen, was disappointed at this result, because he had been president of the World Wildlife Fund, but he recognized that climate was a more urgent international  issue than biodiversity if President Bush could only sign one. 

The UNFCCC continues to exist and holds conferences of the parties to the convention annually.  It provided a forum for negotiating the Kyoto Protocol on climate.  The Biodiversity Convention was signed by many nations in Rio, but not by the US.  It has 196 parties which meet every two years, most recently in 2016 in Mexico.  

President George H.W. Bush and the MTCR

I worked on several issues at the State Department that at least came close to being reviewed by President George H.W. Bush. 

As deputy director of a non-proliferation office in the Politico-Military Bureau (PM) I was the most senior person dealing exclusively with missile proliferation, the Missile Technology Control Regime (MTCR).  Everybody above me dealt with missile proliferation and other issues.  The initial members of the MTCR were the G-7: the US, UK, France, Germany, Japan, Canada, and Italy. As an international plenary meeting of all the original members was coming up in July 1990, there was a debate about whether to invite the Soviet Union to join.  The US government was split on this issue and could not come to a consensus on whether to invite them.  The assistant secretary for PM was Richard Clarke, later famous as the anti-terrorism chief for the White House on 9/11.  Clarke held several interagency meetings of his counterparts, but there was no agreement.  The State Department position was that we should invite the Soviets.

No one ever would tell me what the problem was with inviting the Soviets, but the resistance seemed to be coming from the intelligence community.  The best explanation I heard was that it might have complicated the CIA's program of providing Stinger anti-aircraft missiles to the Afghan resistance, a program well described in the book and the movie "Charlie Wilson's War," although the Afghan war was winding down by then.   The US was supplying its Afghan proxies with small Stingers, while the Soviets had supplied their proxies with SCUD missiles, a large ground-to-ground missile capable of destroying multiple buildings over 100 miles away.  The MTCR only covered large missiles capable of delivering a nuclear warhead.  The MTCR covered SCUDs, but not Stingers.  Thus the MTCR might have imposed limits on the Soviets in Afghanistan, but not on the US.  Although it was a diminishing problem it might have been imprudent to add it to the existing stress in the relationship.

Another problem was that the Soviet Union was disintegrating.  The Soviets appeared willing to join., but the mysterious American ambivalence could have been due to President Bush's overall goal of ending the Cold War with minimal turmoil  Was it better to get the Soviet Union (and presumably any successor state) on board with the MTCR's arms control  guidelines while we had the chance, or was it better to wait and try to get agreement from a more stable successor government?  Unfortunately, no one ever discussed these issues in any meetings that I attended.  I did not detect any such concern on the part of the State Department Soviet desk, which was willing to approve an invitation. 

In any case, we could not get an agreement, and so I prepared a memo to the White House to get President Bush to make a decision.  The memo gave the background and then asked the President to check a box on whether to invite the Soviets: yes or no.  Attached to the memo were two draft instruction telegrams, giving the US delegation talking points: one telegram told our MTCR partners that we wanted to invite the Soviets, and one told them that we did not want to invite them.  The White House would send the appropriate telegram depending on which box the President checked.  I think around this time,  I also drafted a memo from Secretary of State Jim Baker to Chairman of the Joint Chiefs of Staff Colin Powell asking the JCS to join State in recommending that the President approve inviting the Soviets, but the JCS declined. 

We sent the decision memo to the White House weeks before the MTCR meeting, but heard nothing back.  One of the main NSC staffers working on the issue was Condi Rice, because she was responsible for Soviet affairs.  I tried repeatedly to call her, but could never talk to her.  I could only talk to her assistant, who kept saying that they were working on it.  Finally it was time to go to the meeting in Ottawa, and we still had no instructions. 

In Ottawa just hours before the meeting, around midnight, we got a call at our hotel that the embassy had a niact (night action) immediate telegram that we had to come down and read at the embassy.  When we got to there, we found that the White House had sent an instruction telegram, but it was neither of the ones I had drafted.  It looked as if they had picked alternate paragraphs from the two cables and combined them into one that did not make sense.  It did not clearly say whether to invite them or not.  We called Assistant Secretary Clarke the first thing in the morning, and he made a command decision to go ahead and invite the Soviets.  So, just minutes before the meeting started, we met with our fellow members and told them that we supported inviting the Soviets.  In the meeting, it was formally decided to invite them. 

When we got home, we found that the President had decided that he did not want to invite the Soviets.  So, we had to quickly tell our partners before the invitation was issued that we had changed our minds and that we did not want to invite the Soviets.  The invitation was not sent, but the US looked pretty bad for the way it had handled the issue.  Russia later joined the MTCR in 1995.  

NYT Racist Op-Ed

The op-ed by Pankaj Mishra, "The Religion of Whiteness Becomes a Suicide Cult," is just an erudite-sounding rant against white people.  It's arguable that much of Mishra's erudition is due to the British colonial empire which brought India into the modern world, despite whatever racial prejudices the British may have held.  

While his article portrays a deep-seated hatred of all Anglo white men, he ignores what has happened in his native India.  The existence of Pakistan and Bangladesh testify to the racism of India's Hindus, who mistreated Muslims to such an extent that they left India and formed their own countries.  Does Mishra really believe that Indians are morally superior to Anglos? 

Who does Mishra find morally superior to Anglos?  The Chinese, who have recently been found to be creating camps for the mass detention of their Uiger minority?  The Russians or the Japanese, who have maintained ethnically homogeneous populations?  Latin Americans, who have brown populations of varying colors, but who also have violent societies?  Would he want to live in El Salvador, Guatemala or Venezuela?   Would he want to live in Israel, which as declared itself a Jewish state and built walls to divide itself from non-Jewish neighbors?  Would he want to go to Africa, where despite a fairly uniform skin color there is and has been frequent genocide in the Congo and Rwanda, for example? 

Anglos are the objects of such hatred because it has been effective in the past, because Anglos are generally moderate and caring about all kinds of people and thus are more susceptible to accusations of bias.  Anglos are among the most enlightened people when it comes to acceptance of other races.  While blacks in America may still experience discrimination, they are better off than blacks in almost every other country on earth.  Most African-Americans would choose to stay in America, rather than move to Africa, because their life is much better here.   

Unfortunately, Mishra is smart to vilify Anglos, because they are more likely to respond than any other race.  He would be wasting his time criticizing his fellow Indians, who are much more racist than Anglos. 

I see this article as part of a racist attack by the Jews at the New York Times on American whites.  Trump may be a racist, but so is Arthur Gregg Sulzberger, the half-Jewish publisher of the New York Times, who published this article.  Sulzberger's other ancestral half is apparently Episcopalian, and thus he also represents the Anglo Biblical tradition of acceptance of other races.  I don't know which side predominates in the decision to publish such an inflammatory article.  

Paper Ballots

There is a relatively easy solution to concerns about Russian hacking of American elections: just use paper ballots.  Some states are probably completely dependent on electronic voting now, but they can have paper ballots printed up quickly.  If the Secretary of State for a given state thinks his computerized voting is reliable, he can use it, but require him to have paper backups.  If there is no dispute after the election, the electronic voting can stand.  If there are questions, then they would have to look at the paper ballots.  If the totals don't match, courts and experts will have to decide which system is the most accurate and reliable.  In an ideal world there would be a serial number linking a paper ballot to an electronic ballot, but it may be too late to set up such a system. 

This would not be a problem for Colorado, since most voting is done by mail on paper ballots.  There is concern that computers totaling election returns might be hacked.  If there is any indication of such hacking, the ballots would have to be counted by hand.  Paper ballots and hand counting worked for centuries; it can still work. 

 All the hype about Russian interference in actual voting seems to be overblown.  I think that Russian and Iranian interference in elections through the use of posts on social media is also overblown.  Americans should be able to think for themselves.  The US broadcast political information into the old Soviet bloc for decades through the Voice of America and Radio Free Europe, as well as through some more secret CIA interference.  It's not a new things, just the way of doing it through social media is new.  If a foreign country can change the results of an election by broadcasting false information, then the American educational system and political system are as much to blame as the foreigners.  

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.  

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. 

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.