A Conflict of Interest Raises Questions for State Department’s Top Lawyer

Interactions between the head lawyer of any agency and the agency’s inspector general are among the most sensitive in government. The two offices must often work together to achieve the mission of each one, even though there will inevitably be disagreements. But the disagreement between the State Department’s acting Legal Adviser Marik String and the former State Department Inspector General (IG) Steve Linick about the legality of an $8 billion arms sale to Saudi Arabia and the United Arab Emirates raises two serious concerns.

First, did String have a personal conflict of interest, or at least the appearance of a conflict, when he reportedly suggested to the IG’s office that the investigation was not within the IG’s jurisdiction? Second, if the acting legal adviser had a conflict of interest, should he have recused himself as a matter of ethics and professional responsibility?

Based on news reports and testimony gathered by Congress so far, the answer to both appears to be: Yes. There was such a conflict, or at least an appearance of a conflict, and that required him to recuse. He didn’t.

The actions String took in the arms sale were under scrutiny when he reportedly tried to push the IG away from investigating the matter. What’s even more concerning is that the final IG report indicates String may, in significant part, have been successful.

A central piece in the House Foreign Affairs Committee (HFAC) investigation into Linick’s firing is the $8 billion Saudi arms sale. Last week, after several weeks of delayed interviews, the HFAC subpoenaed String and three other senior aides to Secretary of State Mike Pompeo, and accused the Trump administration of “stonewalling” the committee’s investigation. Taking the same approach he took to the House’s impeachment investigation, Pompeo rejected the subpoenas last Friday, telling the congressional committee that he had no intention of complying. String’s testimony could shed light on his role in the Saudi arms sale as a deputy assistant secretary of state in the Bureau of Political-Military Affairs (PM), and the subsequent actions he took regarding Linick’s investigation when serving later as acting legal adviser.

In short, String is reported to have played a central role in formulating an emergency waiver that would push through the controversial arms sale to Saudi Arabia, the United Arab Emirates, and Jordan, and circumvent congressional oversight. As a result of the emergency declaration, Congress did not have an opportunity to engage in its normal and statutorily mandated review of the sale. At the time, the Trump administration knew the sale would face strong pushback from Congress, where Democrats and Republicans had previously placed holds on some of the related arms sales. Bipartisan concerns involved reservations about selling more weapons to Saudi Arabia after the murder of journalist Jamal Khashoggi and the ongoing cilvilian deaths caused by Saudi-led coalition airstrikes using U.S. precision-guided missiles.

The Arms Export Control Act (AECA) requires a 15-30 day congressional review period for arms sales and other similar transactions. But when “an emergency exists” that is related to “the national security interests of the United States,” then the president may bypass these congressional oversight requirements. In the justification for the emergency declaration, which String is reported to have helped formulate, Pompeo hinged his argument for the emergency waiver on the timeliness of sending the defense systems:

“For the reasons cited above, an emergency exists requiring immediate provision of certain defense systems to Saudi Arabia, the United Arab Emirates, and Jordan in the national security interest of the United States. Such transfers, whether provided via the Foreign Military Sales system, or through the licensing of Direct Commercial Sales, must occur as quickly as possible in order to deter further Iranian adventurism in the Gulf and throughout the Middle East. The Secretary of State, therefore, has certified an emergency exists under sections 36(b)(l), 36(c)(2), and 36(d)(2) of the Arms Export Control Act, 22 U.S.C. 2776, thereby waiving the congressional review requirements of those provisions.”

Among other issues, the Memorandum of Justification does not provide strong support for the idea that the emergency arms sale must be done quickly. For example, it discusses the threat posed by Houthi rebels in Yemen, but the threats it mentions go back several years without mentioning why then-current events in Yemen would make the sale more urgent, requiring the 15-30 day bypass of congressional review. An analysis of Department of Defense contracts related to the emergency sale reveal that nearly all contracts related to the sale have an expected completion date in 2022 or beyond. In addition, as Diana Ohlbaum and Rachel Stohl previously noted, some of the arms sales do not bear a clear relationship to the emergency being declared about Iran.

The State Department’s new acting IG, Diana R. Shaw, released a report related to the arms sale on Tuesday. While the report is heavily redacted — redactions that were reportedly sought by Marik String’s office — an unredacted version obtained by Politico and the New York Times reveals that the State Department began discussing using the emergency bypass measure to circumvent Congress at least one month before the White House issued any statements regarding escalating Iranian threats in the region. The report also confirms that most of the arms included in the emergency certification have not yet been delivered.

On Monday, the State Department preemptively released a statement regarding the IG report on the Saudi arms sale, declaring that the IG found that the emergency certification was “properly executed” and “complied with the requirements” of the AECA. But this statement obscures the IG’s true findings.

As the report makes clear, the IG did not evaluate whether the “Iranian malign threats” cited in the memorandum of justification constituted an actual emergency that necessitated an arms transfer. Moreover, the IG found that the State Department “did not fully assess risks and implement mitigation measures to reduce civilian casualties and legal concerns associated with the transfer of [precision-guided munitions].” This means that, contrary to the State Department’s statement, the IG report did not determine whether the “emergency” was real or manufactured to fast-track a controversial sale, a sale that String would have supervised as the legal head of the department that oversees foreign military sales (FMS).

Based on recent congressional testimony, it appears that String — once in his new role as acting legal adviser — attempted to convince the IG to drop this investigation into the fast-tracked sale.

The newly published IG report does not probe String’s actions once he transitioned from working in the department that oversees FMS to working as the State Department’s top lawyer. Nor does it address String’s possible actions regarding the redactions of the report, which were applied, according to the State Department, to “protect executive branch confidentiality interests, including executive privilege.”

But at least two senior State Department officials have testified to String’s conduct: both his work on the emergency waiver and his later interactions with the IG’s office. Former Deputy Assistant Secretary of State Charles Faulkner testified on July 24 that String “identified an ‘authority’ in the law ‘that allow[ed] for an emergency declaration of arms transfers,’” as Democratic members of Congress noted in their subpoena to interview String and others involved in the sale. They further noted:

“On the day of the emergency declaration, May 24, 2019, Mr. String was promoted to Acting State Department Legal Adviser, a position he still holds. When asked about those two events happening on the same day, Mr. Faulkner testified: ‘I think I see the significance of those statements.’”

During Linick’s recent testimony on the matter, he recalled a meeting between himself, String, and the current State Department Under Secretary for Management Brain Bulatao. In this meeting, Bulatao reportedly indicated to the IG that he “shouldn’t be doing the [Iranian Arms Sale investigation] because it was a policy matter not within the IG’s jurisdiction.” During the meeting, String agreed, according to the former IG’s testimony:

HFAC Dem Counsel: So Mr. String said that he didn’t think you should be looking into this, and Undersecretary Bulatao said he didn’t think you should be looking into this. Is that correct?

Linick: That’s correct, yes. Yes.

Bulatao at times “tried to bully me,” Linick told the HFAC.

As part of their investigation, members of the Committee want to know exactly what role String played in crafting the emergency waiver for the sale, and then how he may have personally pressed Linick to drop the investigation.

Inexperience as Legal Adviser

String is a relatively inexperienced lawyer who assumed the role as the State Department’s top lawyer in June 2019. He graduated from Georgetown Law School in 2012 and first passed the bar exam in February 2013. As reported previously, his resume is notably slim compared to those who’ve previously held the job. String worked for the Committee of Foreign Affairs as a staff member for Sen. Richard Lugar (R-IN) for several years before and during law school. He then worked as a law firm associate for four years before joining the State Department in a non-legal capacity in 2017. He was promoted to acting legal adviser on May 24, 2019, the same day the State Department filed the arms sale emergency justification. In total, he has been a member of the bar for seven years and has worked five of those as a practicing attorney.

In contrast, all previous legal advisers, since the founding of the State Department, have practiced law for nearly two decades before assuming the post. Many were already partners at law firms and some had argued in front of the Supreme Court, become a federal district judge, and served in other senior government roles. Abraham David Sofaer, legal adviser under Presidents Ronald Reagan and George H.W. Bush, was a barred attorney for 26 years and a federal judge in the Southern District of New York before assuming the post. William Howard Taft IV, legal adviser under President George W. Bush, was a barred attorney for 32 years and held multiple senior roles in government, including as deputy secretary of defense and U.S. permanent representative to NATO, before assuming the post. Harold Hongju Koh, legal adviser under President Barack Obama, was a barred attorney for 29 years, a tenured law professor at Yale Law School, and had previously served as Assistant Secretary of State.

Even President Donald Trump’s current nominee for the top lawyer at State — C.J. Mahoney, who spent at least 14 years as a barred attorney, as a partner at a law firm, and currently serves as the Deputy United States Trade Representative — brings far more experience to the job.

String’s inexperience, a common trait among many top appointees in the Trump administration, is not necessarily a disqualifier. The increasingly narrow pipeline of educational requirements for many top legal posts can be a mark of elitism, not a mark of competency. But two aspects are notable in String’s professional background: He is at the beginning of his legal career, and he has spent most of his working life as a political adviser or staff aide, not as a lawyer.

As one former senior State Department official previously noted, “The idea that someone so few years out of law school, and not even practicing law for all that time, is in the office occupied by people like Abe Chayes—it’s absurd on its face. The only reason you’d do it is to undermine the institution.”

Norm Eisen, former U.S. ambassador and former White House special counsel for ethics and government reform, put it another way, telling Just Security:

“Some of the most consequential legal questions, matters of life and death that can affect our relations with countries and whole regions, go through that office. Typically, the most experienced and distinguished lawyers are entrusted with that role. It raises a question whether that job was given to him as a reward for taking a favorable position on a matter. No matter how smart he is, or how capable, that assignment makes no sense.”

Appearance of Conflict

It’s against this backdrop of inexperience that String found himself in the middle of an inspector general’s investigation into a controversial arms sale to Saudi Arabia, after he allegedly worked on the emergency measure that allowed the sale to go through in the first place. If String did press the IG to stop investigating the background of the sale or to suggest, as a legal opinion, that the investigation was outside of the IG’s mandate, it would raise a serious conflict of interest. Such a conflict would likely violate the D.C. Rules of Professional Conduct for lawyers and/ government ethics law 5 C.F.R. § 2635.502, which requires impartiality when performing official duties.

Whether String had a conflict or merely an appearance of a conflict, he likely should have known to consult an ethics adviser and to recuse himself from the investigation. Presumably one of the questions Congress will ask String is whether he did consult ethics lawyers in the department. As one former senior State Department official told Just Security:

“Once acting legal adviser String knew that Inspector General Linick might be investigating the propriety of String’s past conduct in a prior policy role, String should have recused himself from further meetings with the Inspector General and sent a deputy in his stead. If Mr. String not only met with Mr. Linick, but also urged him to drop the investigation, there was both an appearance of conflict, and an actual conflict of interest, both of which String should have known to avoid.”

String’s reported involvement in the Saudi deal and his subsequent interactions with Linick flash “multiple red flags,” Eisen said:

That is not to say that perhaps when the whole matter is viewed in the light of day, it won’t pass muster. Perhaps it will. But certainly it is a profoundly troubling set of circumstances. It would be highly unusual in any other administration. … Mr. String’s involvement raises some profound questions.

Inspectors general perform a critical function of holding government officials accountable for impropriety and illegality. The system can’t readily meet its objectives if the very officials under scrutiny engage in efforts to terminate an investigation into their own actions. String’s relative lack of inexperience is not an excuse for not being aware of this fundamental ethical obligation.

“I would certainly expect someone who participated in a decision under review to recuse him or herself from the review process, since both the appearance and reality of impartiality are essential to preserve the legitimacy of government decision-making,” said Chimène Keitner, former counselor on international law at the State Department.

Congress is certainly justified in seeking further information on this case.

One key question is whether Bulatao and String were, in significant part, successful in their efforts. While the IG did not drop the investigation, one of the most remarkable aspects of the final report is that the IG decided the investigation could not make any assessment whether the Secretary of State properly determined an “emergency” existed. That robbed the investigation of a core concern that animated Congress, and that restriction is remarkably consistent with what Bulatao and String allegedly told Linick about the proper scope of his jurisdiction.

There is perhaps no bright line on recusal, but, as a common sense matter, recusal would seem appropriate where the IG is investigating an issue in which the legal adviser could, at a minimum, also serve as a fact witness for the investigation if not a potential subject of the investigation itself. 

About the Author(s)

Danielle Schulkin

Fellow at Just Security. JD, New York University School of Law. Prior to entering law school, she worked at the United States Department of Justice on the 2008 Financial Crisis Task Force and at the Geneva Initiative, an Israeli-Palestinian peace process think tank. Follow her on Twitter (@DaniSchulkin).