State’s Selective Cooperation with Congress Raises Legal Questions that Demand Answers

Nearly a year after President Donald Trump asked Ukrainian President Volodymyr Zelenskyy to do him a “favor” by announcing an investigation into former Vice President Joe Biden and the Ukrainian oil company Burisma, the State Department is cooperating with Senate Republicans’ partisan inquiry into Burisma, while ignoring basic oversight from congressional Democrats. This raises significant concerns about whether the Department is illegally stonewalling or playing favorites to help the president’s electoral future. 

While federal agencies certainly should be responsive to congressional requests, the Trump administration’s general recalcitrance to oversight, with the apparent exception for Burisma, invites serious legal questions. In fact, this practice suggests that State employees could be violating one or more statutes that prevent interfering with communications with Congress and the use of federal resources to influence an election. This is exactly the kind of misconduct that State’s inspector general (IG) could investigate. Curiously, Secretary Mike Pompeo recently orchestrated the president’s removal of Steve Linick, State’s Senate-confirmed IG, who has been replaced by a political appointee reporting to Pompeo.

Now, the State Department appears to be engaged in coordinated cooperation with an oversight investigation designed to harm the presumptive nominee of the Democratic Party for president, Biden, while ignoring requests that could be damaging to Trump. Last November, after Trump’s infamous call with the Ukrainian president gave rise to an impeachment inquiry, Republican senators pushed State to release information about Biden’s son, Hunter. Ron Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, and Chuck Grassley, chairman of the Senate Finance Committee, wrote to Pompeo requesting information about how a consulting firm hired by Burisma Holdings allegedly tried to leverage Hunter’s role on Burisma’s board, including to influence State Department matters. While it stonewalled Democrats’ requests for information during the impeachment proceedings, which featured several State Department witnesses, the Department voluntarily produced thousands of pages of documents to Johnson and Grassley earlier this year. 

By contrast, the State Department has refused to provide documents, testimony or information to satisfy more than a dozen requests from the House Committee on Foreign Affairs, chaired by Democratic Rep. Eliot Engel, since January 2019. Many of these inquiries relate to “serious allegations about President Trump’s conflicts of interest and abuse of the power of his office.” At least three of these requests, including for information related to Trump’s communications with Russian President Vladimir Putin, Jared Kushner’s shadow diplomacy, and concerns of politicized and distorted intelligence regarding nuclear, biological, and chemical weapons, have been outstanding for more than a year. 

Trump has consistently demonstrated hostility toward oversight throughout his tenure in office. In 2017, the Trump White House directed federal agencies to refuse oversight requests from congressional Democrats, and the Department of Justice issued a legal opinion that justified the policy. While no administration welcomes oversight, particularly from the opposition political party, these instructions were an “escalation” of the normal give and take between the branches and the parties. The Trump administration’s recalcitrance escalated further after Democrats took control of the House in 2019, leading to litigation to force compliance with duly authorized subpoenas. Not to be outdone, Trump took the extraordinary step of suing House Oversight Committee Chairman Elijah Cummings and a Democratic aide to block a private company from turning over his financial records. Trump has maintained this stance in 2020, announcing that he would allow Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, to testify about the administration’s coronavirus response before the Republican-led Senate, but not at a House subcommittee hearing led by Democrats.

While the president and the White House have flouted congressional oversight with impunity, any State Department employees involved in executing this strategy could face legal jeopardy under several statutes. For example, a rider in federal appropriations law provides a “governmentwide prohibition on the use of appropriated funds to pay the salary of an officer or employee who prohibits or prevents, or attempts or threatens to prohibit or prevent, another federal officer or employee from communicating with Congress.” The Government Accountability Office (GAO), which interprets federal appropriations law, most recently opined on this provision in 2016, concluding that the Department of Housing and Urban Development (HUD) appropriation was not available to pay the salaries of two agency officials, where it found that their communications with congressional staff as well as with a third HUD employee “resulted in prohibiting or preventing, or attempting or threatening to prohibit or prevent, [that third] HUD employee from communicating with Congress.” GAO concluded that despite HUD’s decision to ultimately produce the requested witness without a subpoena, at some point, the ongoing dialogue about the congressional request ceased to “reflect a continuing negotiation of mutual accommodation with the committee to reach resolution of its request,” and instead, “the delay became a denial to make the [employee] available for interview.” Ironically, the request at issue here was from Grassley, who now seems unbothered by the Trump administration’s refusal to cooperate with his Democratic colleagues. 

State’s quick and fulsome response to Senate Republican inquiries about Burisma, in the midst of a global pandemic, no less, makes clear that fulfilling such requests is achievable when the Department intends to do so. Given the numerous unfulfilled requests from Engel and other Democrats to Pompeo, it seems highly likely that one or more employees at the State Department has violated federal appropriations law barring the prohibition or prevention of a federal officer communicating with Congress. Once GAO finds a violation of this provision, the agency is required to recoup the appropriated funds used to pay the salary of the offending employee. Failure to do so is a violation of the Antideficiency Act, which prohibits federal agencies from obligating or expending federal funds in advance or in excess of an appropriation. Once a violation of the Antideficiency Act is determined, the agency head must “immediately” report the matter to the president and to Congress. Federal employees who violate the act may also face administrative or even criminal penalties.

Another statute potentially implicated by State’s opposition to congressional oversight from Democrats while readily cooperating with Senate Republicans’ partisan investigation into the president’s political rival is the Hatch Act. The law explicitly prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.” Prohibited political activity is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Penalties are generally administrative in nature, but can include removal from government service, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or a civil fine. To date, the Office of Special Counsel (OSC), which enforces the Hatch Act, has found more than a dozen Trump administration officials in violation of the law, including Kellyanne Conway, who has been cited for dozens of offenses and has been recommended for firing.

There is ample reason to suggest that the Senate investigation into Burisma is politically motivated to damage Biden’s electoral prospects. Chairman Johsnon has admitted that the investigation could and should impact Biden’s candidacy. In addition, as the New York Times recently noted, Johnson and Grassley “are effectively picking up where the president left off last year when he pressed [Ukraine’s]leaders to investigate the Bidens.” But in order to prove a violation of the Hatch Act, there has to be evidence that State Department employees used their official positions to impact an election. Compliance with a congressional investigation, without more, is not enough to make a prima facie case. 

Even if we assume that the requesters have a partisan or nefarious purpose, we cannot impute that intent to agency employees working to satisfy the request. For example, every year, agencies receive FOIA requests from political parties and candidates to find dirt leading up to an election. OSC does not appear to have issued any public opinions or guidance suggesting that compliance with those requests runs afoul of the Hatch Act. In fact, it would be highly problematic and stunting to all congressional oversight for OSC to conclude that federal employees violate the law merely by cooperating with a politically motivated congressional investigation. OSC would be accused of playing politics. Federal employees could become collateral damage in partisan disputes between the branches over congressional inquiries. However, if the underlying facts show that an employee intentionally deviated from her agency’s normal practices or guidance to coordinate the disclosure of politically damaging or advantageous information about a candidate, OSC might take a different view. Even under those circumstances, the potential unintended consequences suggest a high bar and judicious approach.

The State Department’s prioritization of oversight requests from Republicans and refusal to comply with those from Democrats demands further investigation to determine the extent of the problem and what agency rules or statutes are implicated. For example, the Department of Transportation Office of Inspector General is conducting a review of alleged political favoritism by Transportation Secretary Elaine Chao’s office to benefit her husband, Senate Majority Leader Mitch McConnell. The Treasury Department’s acting IG also examined whether that department followed appropriate protocol in its handling of Democrats’ request for the president’s tax returns. State OIG can and should review how the agency has approached congressional oversight. If that investigation uncovers any evidence that State Department employees’ response to Johnson and Grassley’s Burisma investigation is designed to undermine the Biden campaign, OIG could make a referral to OSC for potential Hatch Act violations or take other corrective action. Of course, earlier this month, Trump removed the State Department IG and replaced him with a political appointee, suggesting that independent oversight may not be in the cards.

The Trump administration has bent or broken all legal standards and norms related to congressional oversight. The president’s directive that his administration respond only to requests from Republicans is among the clearest evidence of this abuse of power. At the State Department, this policy has manifested in the agency moving mountains to cooperate with a Senate investigation aimed at damaging Trump’s political opponent while ignoring inquiries from congressional Democrats that could tarnish the president’s own political prospects. These tactics undermine our system of checks and balances. And they could also create significant legal liability for any State Department officials involved in implementing the president’s unscrupulous strategy.

Image: US Secretary of State Mike Pompeo takes a question from a reporter during a news conference at the State Department on April 29, 2020, in Washington, DC. Photo by ANDREW HARNIK/POOL/AFP via Getty Images

 

About the Author(s)

Donald K. Sherman

Deputy Director at Citizens for Responsibility and Ethics in Washington (CREW); Adjunct Professor of Law at the Georgetown University Law Center. Follow him on Twitter (@donaldonethics).