tv Key Capitol Hill Hearings CSPAN June 28, 2016 4:00am-6:01am EDT
different parts of the government, saying, will you please look at the case of mrs. so and so who was evicted last week? and that's so common, you can't pick that up. but then you use the word "urge." that's not exactly a legal word. and what i'm looking for is a set of words that will describe in both sides' positions what we should write as the words that describe the criminal activity involved in talking to or influencing the person who does create the official act, like give a pardon. like award a contract. like vote. etcetera. now, those are the words that i can't find, and i'd appreciate your opinion. mr. francisco: sure, your honor. and i think that the answer is that what district courts have to do is understand the general rule, which i think at some level has to be an attempt to influence, and then flesh it out in a way that's appropriate to the facts of the case. justice breyer: you want to use "attempt to influence"? my goodness. letters go by the dozens over to the secretary of
hud, to the secretary of hhs, to the secretary or the assistant secretaries, and they say, my constituent smith has a matter before you that has been pending for 18 months, we would appreciate it if you would review that and take action. and then the elected official says to smith, i did my best on this. and smith thinks, good, he's used his influence. mr. francisco: right. justice breyer: a crime? my goodness. mr. francisco: absolutely not, your honor. justice breyer: all right, fine. mr. francisco: absolutely not. justice breyer: you say "absolutely not." that's what i thought that you would say. mr. francisco: and i think that -- justice breyer: so i want to know but the words you used were "attempt to influence." and so though i don't think that's the right word, and i want to know what the right words are - mr. francisco: sure. justice breyer: in the instruction that the judge is going to give. not in your case
-- mr. francisco: mm-hmm. justice breyer: but in general. mr. francisco: well, can i give you an example from another case that, although i do think instructions are generally tailored to the case, an example -- justice breyer: of course they are. but you have to have the standard that will distinguish the urger -- mr. francisco: sure. justice breyer: from the one who does it criminally and the one who doesn't. mr. francisco: and in the ring case, i thought that judge huvelle had some very useful instructions -- justice breyer: mm-hmm. mr. francisco: where she wrote and this is at page 1083 of the joint appendix 4 "therefore, 'official action' includes the exercise of both formal official influence, such as the legislature's vote on legislation, and informal official influence, such as a legislature's behind-the-scenes influence on other public officials in the legislative or executive branches." justice breyer: well, there we have it. there we have it.
all these letters going over, saying, please look at mrs. smith's eviction notice. mr. francisco: and -- justice breyer: mrs. smith, who, by the way, took me to lunch last week. [laughter] mr. francisco: and i completely agree, your honor, which is why in our proposed instruction - justice breyer: that won't do it. the one you just read won't do it. mr. francisco: well, and that's why in our proposed instructions, i think it needs to be tailored further to the facts of the case. so in our case we went on to say merely arranging a meeting, attending an event, hosting a reception, or making a speech are not standing alone "official acts." either you use it --
justice breyer: all right. so you use that. the key to the word in there is "merely." mr. francisco: yes, your honor. justice breyer: because sometimes it could. mr. francisco: yes, your honor. justice breyer: and somebody might have the embarrassing question, merely when it can or merely when it can't. give me a little enlightenment. mr. francisco: your honor, i think that the answer is, if the evidence shows that there was and i hate to go back to the word that i know you don't like here, but if the evidence shows that there really wasn't attempt an attempt to try to push the separate decision maker that you're supposedly trying to influence one way or another, but you really are just sending it over for a meeting, and that independent decision maker is left to their independent judgment, then you haven't crossed that line. but if -- justice kagan: mr. -- justice ginsburg: the word the word that justice breyer is concerned about comes from birdsall, with intent to influence their "official
action." so we can hardly fault the district judge for using in ring the same words that this court used in birdsall. mr. francisco: i agree, your honor. i thought that judge huvelle did a very good attempt at defining, because she actually went further than what i just read to you, justice breyer. she continues along the lines that we proposed in our instructions that, quote, "mere favoritism as evidenced by a public official's willingness to take a lobbyist's telephone call or to meet with the lobbyist, is not an "official act." so i think that the idea is, your honor i understand, justice breyer, that influence itself doesn't totally solve the problem. but what district court judges do is they then explain to the jury what they mean by influence, and influence is not -- justice kennedy: where can we find the best definition, in your view, of an "official act"? mr. francisco: your honor, i
think that the best definition of an "official act" is essentially the one that i tried to articulate at the outset. you need you need to either make a decision on behalf of the government, or try in some way to use your influence to pressure or urge or persuade or cajole someone else who has governmental power to make a decision on an action. justice kennedy: well, i -- justice kagan: can i -- justice kennedy: i agree with justice breyer. i just don't see the limiting principle in the second part. mr. francisco: your honor, i think in many in some cases, i think the limiting principle might be difficult, it's not a perfect and precise formulation. but i think in this case it's a particularly easy principle, because here the jury wasn't given any instruction on the line at all. so justice breyer, in your hypothetical, sending that letter over is an "official act" under the instructions as given and under the theory pushed by the solicitor general's office in this case because it is the
action -- justice kennedy: i'm not sure that's right. it seemed to me the "official act" is exercise of governmental power to require citizens to do or not to do something, or to shape the law that can that governs their conduct. mr. francisco: i completely agree with you, justice kennedy. justice kennedy: under your view, under the hypotheticals that have been thrown around, the janitor who gets the bottle of beer in order to clean your classroom first, i mean, is that is that a governmental act? mr. francisco: certainly not in my view, but the government -- justice kennedy: well, what's the difference? mr. francisco: the difference is, one is you're exercising power on behalf of the government as a whole. so the janitor, for example, if he's buying if he's using government money to buy janitorial supplies and engaging in government contracting, that's an exercise of governmental power. if you're simply cleaning out a classroom, i don't think you're exercising government power. so, too, when you simply send somebody to another official for an independent and objective decision by that official, but you don't try to put your thumb on the scales of that decision, you haven't crossed the line. and i think it's very important in a criminal statute like this, because if you really do think that a referral, just simply
making a referral, is "official action" that crosses the line into bribery, i think you do have some very serious vagueness concerns with the hobbs act and on a services question -- justice kagan: can i ask -- justice roberts: sure, sure. it depends on who's making the referral or the call, right? in justice breyer's hypothetical, if it's a congressperson calling somebody and saying, could you look into this matter for my constituent, the person should look at it, i suppose, and then and that's one thing. if it's the president who calls and says, i want you to look at this matter for my constituent, that might exercise considerably more influence. mr. francisco: two things, your honor. first, you still do need to tell the jury that that's what they have to find. and here, the jury was never told in any way, shape or form that they had to find an attempt to influence. so i think that is sufficient, in and of itself, to, at the very least, require a new trial here. under these instructions, as the government itself seems to agree, any action within the range of official duties constitutes official governmental action. so justice kennedy, in the letter being sent over from a senator, since that is within the range of official duties, that counts under the government's formulation, and under the jury instruction as given, since it is, after all, a settled practice of officials to send these kinds of letters. that's why it was incumbent upon the district court to draw some kind of limit. and here, the jury could well have agreed with us that even though he was the governor of the state, mr. chief justice, he did not try to influence the actual decision. he simply made the same type of referral that he made day in and day out during this administration where he simply sent a constituent to the appropriate official --
justice kagan: mr. francisco -- mr. francisco: -- to exercise appropriate judgment. justice kagan: if you said something before, and i might have misunderstood you. but do you think that of the five listed "official acts," do you think none of them meet the standards that you're suggesting, or do you think some of them do and some of them don't? mr. francisco: two answers. first of all, we don't think that any of them meet the standard. justice kagan: ok. so let me -- mr. francisco: but secondly -- justice kagan: go ahead, please. mr. francisco: but secondly, the jury could have agreed with us on that, given the evidence we put further. and therefore, the erroneous instruction was critical to this case, because even if they had agreed with us, they would have been required to convict under that erroneous instruction since take the healthcare leaders reception. they could have concluded that that was an "official act" and that was the only basis to convict, and they could have agreed with our evidence on everything -- justice kagan: ok. that that might be right. it might be that that you still have a winning argument even if some of the five are fine. but if we could just focus on them for a bit. i mean, for example, the third one -- justice kennedy: they're at page 60 of the -- justice kagan: the 6091. justice kennedy: middle of the appendix. justice kagan: contacting other government officials to influence virginia state researchers to initiate clinical studies. so that's the one that seems to me to really fall within your own definition.
do you disagree with that? mr. francisco: your honor, i don't. and if they had actually proved what was said in the indictment in the case, i think that this would be a we'd be making a different argument here. but the problem is, they didn't prove that governor mcdonnell tried to encourage anybody. the one -- justice kagan: so on something like that, your argument is a sufficiency argument? mr. francisco: yes, your honor. justice kagan: rather than this was this is not an "official act"? mr. francisco: and, yes, your honor. to be clear, we have two separate arguments here. one is on the jury instructions where our argument is that even if they agreed with all of our view of the facts, they still would have been required to convict, given these erroneous jury instructions. and secondly, our second argument is the sufficiency argument. even a properly instructed jury, in our view, could not have concluded that governor mcdonnell crossed that line. justice kennedy: well, just to be clear, you said at the outset you don't think any of these are "official acts," but then i thought i heard you say that, third, contacting other government officials as part of an effort to encourage state research is not an "official act"? mr. francisco: that's the indictment, your honor. if they had actually proved what was -- justice kennedy: what was justice kagan is asking, is that an "official act"? mr. francisco: if it actually -- justice kagan: if it's true, but -- mr. francisco: if he had tried to encourage them to do it, yes. if they had proved that he had tried to encourage them to do
that, that would have been an "official act." our argument is that, first, the jury was never properly instructed on that question, and second, he never did in fact urge university researchers to do anything. and if i could just conclude, before reserving the remainder of my time for rebuttal, at the one event where he actually had direct contact with the university researchers, justice kagan, this was the luncheon held at the mansion. the all of the witnesses who were there actually testified as to two things with respect to the governor. first, he simply asked neutral questions that didn't try to push the researchers' decisions one way or another. and secondly, the one time jonnie williams asked him for something, support before tobacco commission funding, he gave jonnie williams a very polite no. mr. chief justice, if i could reserve my time. justice roberts: thank you, counsel. mr. dreeben. mr. dreeben: thank you, mr. chief justice, and may it please the court, petitioner seeks a categorical carveout from the concept of an "official act" for things like meetings, phone calls, events, that, in his view, do not further or advance or attempt to influence a particular government action, but simply provide somebody with access to the government. justice roberts: well, he's not the only one. one there's an extraordinary document in this case, and that's the amicus brief filed by former white house counsel to president obama, former white
house counsel to president george w. bush, former white house counsel to president clinton, former white house counsel to george h.w. bush, former white house counsel to president reagan. and they say, quoting their brief, that "if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy." now, i think it's extraordinary that those people agree on anything. [laughter] justice roberts: but to agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct. i think is extraordinary. mr. dreeben: it may be extraordinary, mr. chief justice, but that doesn't make it correct. [laughter] mr. dreeben: i think it rests on several fundamental misconceptions about what government actually does.
and i think it's important to pause and look at the implications of what petitioner's pay-to-play theory of government really is, that people can pay for access, that they can be charged to have a meeting or have a direction made to another government official to take the meeting. it would mean, in effect, that if somebody came to me and said, you know, i know you're having a lot of college tuition issues. we can help you with that. the criminal division is not giving us a meeting on whether to appeal a case. just call them and see if you can get them to take the meeting. and i don't know -- justice roberts: you're -- justice kennedy: i don't know -- justice roberts: it's somebody in the government whose client comes to them and says, we'd really like the solicitor general's office to file a brief in our case. and then that person calls you up and says, can you meet with so and so? all he wants to do is sit down with you and persuade you why you should file a brief supporting his case. mr. dreeben: but getting in the door, mr. chief justice, is one of the absolutely critical things. justice roberts: so is your answer, yes, that that's a felony? mr. dreeben: if somebody pays me -- justice roberts: no, no. that's the quid that's the quid side of it. mr. dreeben: yes. justice roberts: i'm talking about the quo side in the quid pro quo. mr. dreeben: taking a meeting, yes, i think taking a meeting is absolutely government action. justice kennedy: so if so if the
president gives special access to high-dollar donors to have meetings with government officials, that is a felony? mr. dreeben: certainly not, justice kennedy. and i -- justice kennedy: why certainly not? mr. dreeben: because the critical issue there is whether the government can prove a quid pro quo. and now we're moving into the realm of campaign contributions, where this court has given very strict guidance about when a jury -- justice breyer: it's not a campaign contribution. what it is, is he takes him to lunch, and an expensive lunch at that, ok? because the quid side is not limited. the government has argued continuously that in for a penny, in for a pound, ok? so we don't have the limitation on the quid side. we have a possible limitation in frame of mind. and now we're looking to the quo side. and you want to remove any limitation there, ok? now, why do i think that's a problem? two very fundamental reasons. and it's not because i'm in
favor of dishonest behavior. i'm against it. and we have just listed some that is dishonest. my problem is the criminal law as the weapon to cure it. and if the criminal law is the weapon that goes as far as you want, there are two serious problems. one, political figures will not know what they're supposed to do and what they're not supposed to do, and that's a general vagueness problem. and the second is, i'd call it a separation of powers problem. the department of justice in the executive branch becomes the ultimate arbiter of how public officials are behaving in the united states, state, local, and national.
and as you describe it, for better or for worse, it puts at risk behavior that is common, particularly when the quid is a lunch or a baseball ticket, throughout this country. now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers since. so in my mind, right in this case, nothing to do with this petitioner, nothing to do with him, but in this case, is as fundamental a real separation of powers problem as i've seen. and i'm not quite certain what the words are. they won't be perfect. they will leave some dishonest conduct unprosecuted. they won't be perfect. they will put some politicians at risk. but i'm searching for those words because, as i said, this is a very basic separation of powers problem for me. mr. dreeben: so -- justice breyer: i appreciate your help on what the right words are, and i'll tell you right now if those words are
going to say when a person has lunch and then writes over to the antitrust division and says, i'd like you to meet with my constituent who has just been evicted from her house, you know, if that's going to criminalize that behavior, i'm not buying into that, i don't think. so i want some words that will help with what i see as knotty and complicated and difficult and basic a problem as i can think of. mr. dreeben: justice breyer, let me first argue the position that i came here to argue, which is that "official action" is not limited by some arbitrary litmus test that was proposed by petitioner that would exclude things that he calls "access." i don't think that that's the right way to look at it. i think that the right way to look at this statute is to recognize that it has multiple elements. we're talking about multiple statutes. but the bribery offense has very similar elements. you first have to decide whether someone is engaging in an "official act." merely going to lunch is not engaging in an "official act." there are opportunities to
engage -- justice breyer: no, no one said it is. the lunch with the chateau lafite wine happens to be the quid, and that's worth, like, $1000, or $500, anyway. i don't go to those restaurants anymore. [laughter] mr. dreeben: justice breyer -- justice breyer: but you understand that -- mr. dreeben: i don't i don't go -- justice breyer: it's the other side of the equation. mr. dreeben: i understand, justice breyer. but what i would think it would be helpful for the court if i could lay out the multiple elements that are at issue here because "official act" does not have to do all the work. you do have to have somebody engaged in their official capacity. you then have to have something that they do within their range of official duties, which going to lunch is not going to be. third, you need a quid pro quo, which means that the government is going to have to show that the person allowed themselves to be influenced in their conduct by the thing of value that they received, which is to say that somebody is basically saying, i'm going to make a referral over to another agency for you only if you buy me lunch. that is not honorable behavior, and there are --
justice breyer: of course, it isn't. mr. dreeben: many regulations that carve out permissible gift situations and create the fourth element issue that i think is an important protection, which is mens rea. justice kennedy: but the problem is, and as you set forth in your brief correctly, you can imply an agreement over time. you can imply a contract over time. and if the lunch takes place first and there's no precondition on the lunch, but after the lunch there is wink, wink, nod, nod, and the contact takes place, it's clear in the standard criminal law that there is a conspiracy there. mr. dreeben: so i agree with you -- justice kennedy: we're in agreement. mr. dreeben: i do agree with you, justice kennedy. i think that's exactly the position that your honor's opinion in evans, the separate concurrence, explained as a proper means of administering the quid pro quo requirement as an intent to issue in a criminal case. there is a very critical protection here. it's a requirement of showing
something beyond a reasonable doubt to a jury. and if you have ordinary conduct that's fully disclosed and in accordance with regulations which do strictly limit when people can receive free lunches -- justice alito: i don't see what the relevance of those regulations is. you say you say there were certain safe harbors created by federal regulations. those apply to federal employees and federal officers. what do they have to do with a governor of a state or a state employee? mr. dreeben: well, they don't, justice alito. this case has been litigated on the submission that section 201 informed the meeting of "official action" for purposes of the hobbs act and the honest services statute. and as a result, the parties have engaged very heavily on the effect on federal officials. and i think that justice breyer's question was primarily directed at them. i do think that there are different issues that arise with respect to state officials, but the mens rea requirements that i've been talking about are going to be fully applicable -- justice breyer: yeah, but how but you're asking --
justice kennedy: but then this doesn't answer justice breyer's basic question and ours. you're going to tell the senators, the officials with the lunches, that, don't worry. the jury has to be convinced beyond a reasonable doubt, and that's tough. [laughter] mr. dreeben: well -- justice kennedy: that was your answer. that was your answer. mr. dreeben: justice kennedy, i do think that the requirements of the criminal law in proving something by beyond a reasonable doubt are a substantial -- justice breyer: what is it they're trying to prove? now, of course, this is a state case, not a federal case. it's a state official it's a federal law but a state official. i don't know. i've only been peripherally involved in political campaigns, but my peripheral convinces me that a candidate will go out and he'll have lunch with hundreds of people, hundreds. everybody wants to give him lunch. great. and he wants to meet as many people as possible. he wants to be friendly.
he might receive a raincoat. he might receive all kinds of things. and at some point, it becomes very dishonest. mr. dreeben: so -- justice breyer: but that's a matter for campaign laws. wait. now, i've also been involved in the justice department. and we would receive many, many letters in the antitrust division. have you looked into such and such? i know perfectly well that that senator just wants to go back to the constituent and say, see, i did my best. that's all. now, you're saying to the jury, take those facts i just gave you, and you look into the state of mind, the state of mind of which the amounts being given will be somewhat indicative, of which the nature of the letter will be somewhat indicative, of whether he writes in personal writing at the bottom will be somewhat indicative, and we're going to let you 12 people work out what was really in that senator's mind. i say that is a recipe for giving the department of justice and the prosecutors enormous power over elected officials who are not necessarily behaving honestly. and i am looking for the line.
i am looking for the line that will control the shift of power that i fear without allowing too much honesty through this law. you know, other laws exist on the other side. mr. dreeben: well, justice -- justice breyer: that that's what i want your view on. mr. dreeben: justice breyer, i'm going to push back, because i think that the line that petitioner has urged is one that is a recipe for corruption, not a recipe for drawing a safe harbor for public officials. what he has basically urged the court to hold is that paying for access, if somebody does not put a thumb on the scale of decision if i, for example, tell the criminal division, take the meeting, make whatever recommendation is in your best judgment, just take the meeting, i can take money for that. and i think the message that would be sent, if this court put its imprimatur on a scheme of government in which public officials were not committing bribery when all they did was arrange meetings with other governmental officials, without
putting, in his metaphorical way, a thumb on the scales of the ultimate decision, would send a terrible message to citizens. what -- justice alito: well, what i think we're looking for is some limiting principle. now, you started to say something about campaign contributions -- mr. dreeben: correct. justice alito: and i know that this case doesn't involve -- revolve around campaign contributions. but certainly a campaign contribution can be the quid, can it not? mr. dreeben: certainly. justice alito: all right. well, gaining access by making campaign contributions is an everyday occurrence. and maybe it's a bad thing, but it's very widespread. how does it how does that play out? mr. dreeben: so, justice alito, gaining access and ingratiation and gratitude as a result of campaign contributions is not a crime. when it's done as a quid pro quo, it is. and that is not the -- justice breyer: that's -- mr. dreeben: that is not the -- justice breyer: that's what i want, your view. mr. dreeben: that is not my view, justice breyer. justice breyer: but, i mean -- justice alito: mr. dreeben, if i could just follow up on that. if a senator writes to a federal
agency and says, this union or this company is, you know, critical to the economy of my state, and, by the way, he doesn't say this, but, by the way, they are the biggest contributors to his campaign -- would you please meet with them? what would not make that a crime? the fact that the jury might not find beyond a reasonable doubt that the reason why he was urging this meeting was because these people, this entity, happened to be a very big supporter? that would be the only thing separating lawful from unlawful conduct there? mr. dreeben: well, let me say two things in response to that. first, this court has addressed that very issue in the mccormick case. and it is established that merely taking favorable action at or around the time of the receipt of campaign contributions is not sufficient to show a quid pro quo and is not a crime. nobody doubts that if there's a quid pro quo for a vote, something that i think mr. francisco is prepared to concede is "official action," although i'm not sure why since it doesn't personally exercise sovereign power if a legislator casts vote as a dissenting vote from a majority action. but nobody disputes that that is a crime.
therefore, this court has already carved out evidentiary and instructional safeguards that prevent against a jury inferring a quid pro quo merely from the coincidence of timing. but i want to come back to something that is even more fundamental, and that is the role of the first amendment in this case. because petitioner has sought to wrap himself in the mantle of the first amendment, probably because the gifts that he received have nothing to do with the first amendment, they have to do with personal loans and luxury goods. this is not a case about campaign contributions. but when campaign contributions are at issue, he relies very heavily on citizens united while ignoring a critical piece of citizens united. this court, in citizens united, looked back to the circumstances that prompted the federal election campaign act in 1972, and those involve circumstances
that were delineated in the buckley decision in the court of appeals. and the court specifically cited to those practices. and what were those practices? they involved the american milk producers paying $2 million in campaign contributions, spread out among a variety of committees, to get a meeting at the white house. that's all they did. they said, in order to gain a meeting with white house officials on price supports, they paid that money. other corporate executives testified that paying money was a calling card, something that would get us in the door and make our point of view heard. and this court said, on page 356 of the citizens united opinion, "the practices buckley noted would be covered by the bribery laws, ceg 18 u.s.c. 201, if a quid pro quo arrangement were proved." now, of course, it's very difficult to prove a quid pro quo arrangement, and that's why there are campaign finance limitations on contributions to candidates. but the court had no doubt that paying for access was a criminal violation.
and so -- justice roberts: so -- mr. dreeben: and that's what -- justice roberts: if you have a governor whose priority is jobs for his state, and there's a ceo who's thinking about locating a plant in his state, but he can only do it, he says, if he gets tax credits from the state. so the governor is talking to him, and he says, look, why don't you come down to my, you know, trout stream and we'll go fishing and we'll talk about this. and the governor does that. he has a nice day fishing for trout, and they talk about whether they can get tax credits, deferred taxes if the ceo opens his plant in the state. now, is that a felony, because he's -- mr. dreeben: i -- justice roberts: accepted an afternoon of trout fishing, and he discussed official business at that time? mr. dreeben: i don't think so, mr. chief justice, but if you change the hypothetical and said instead of an afternoon of trout fitting-- fishing, i'll fly you out to hawaii and you and your family can have a vacation, and during that time we can go over my policy -- justice roberts: but i thought i didn't think the government put any weight on the amount of the quid, in other words, you know
-- ok. i don't know how much an afternoon of trout fishing is worth, but i gather you get you can be charged for that and pay for it. i thought that didn't matter. i thought it was whether he was engaged in an "official act" under circumstances in which a jury could find he did it because of the gift. mr. dreeben: yes. justice roberts: and so if all he's doing is talking about ways to get jobs for virginia, and he's talking with the person who's going to make that decision from the private sector, based in part on whether or not he gets, you know, tax credits, it would seem to me that under your definition, that governor is guilty of a felony. mr. dreeben: i'm not sure that he is guilty of a felony. but the reason why i changed the hypothetical to involve a larger quid is because the implications of carving something out from "official action" mean that it can be sold, and that it's lawful to be sold. and when you change the trout when you change the trout fishing to a trip to hawaii and it becomes more enough areas that is message -- >>
exactly what the chief justice asked. what is the lower limit in the government's opinion on the ?uaid -- on the quid if you are going to say $10,000, i feel quite differently. if you say an afternoon of trout see it quite differently. it is hard to see it as honest. what is the government's position? you don't tell me i'm wrong. you are telling me it is not the government's position that trout fishing afternoon is sufficient to be a quid. if you say that, i will feel differently about the case. -- you do need to
run this through all the elements of the offense. what the courts hypotheticals are suggesting -- the only thing that you could possibly do to remedy this is to shrink the definition of official action with no textual basis in 201 or any common sense basis -- >> that is why i asked you at and you say you are going to push back and you complained about their definition. if i thought their definition was perfect i wouldn't have asked you. -- iell me how to do this am not in the business of sending messages in the case like this. i'm in the business of trying to figure out the structure of the government. that separation of powers -- i expressed my concern. i dissented in citizens united. point is the one i
raised at the beginning that every single one of us has raised. because like any other organization, the prosecutors can be overly zealous. that can happen. we need some protection on both sides even though the line of the perfect. perfect and ite will fail to catch some crooks. i understand that and i want to know your view. it helps a little. >> i want to know your view as to the language we write. >> i don't think you and i agree on where the line should be. you want be satisfied with petitioner's language which requires there be influence on other governmental decision. >> no.
i think that it is too narrow. if the court is going to reject the government's submission, that won the governor calls his secretary of health and says open vote take the meeting with my benefactor," and he doesn't disclose the benefactor, other citizens who do not pay will have to make his case before you. i think that is official action. petitioners say it is not an official acts and -- official action. if the court is going to reject the government's position in this case, then i think a fallback position for the anernment is when you have in disputed actions such as will the universities of virginia study a particular product or will the tobacco commission it, or to-- fund
advance his benefactors interest with respect to that decision, that constitutes the crime of bribery. >> there is, given the difficulty we are having in settling on what these words mean, there is an argument in the petitioners brief that the statute is unconstitutionally vague. >> i do not think it is unconstitutionally vague. we are talking about multiple has been which construed in mccormick and evans valid if hisectly action will be controlled by a thing of value that he has received. we are talking about the question of what constitutes official action for purposes of a common-law crime that goes
back centuries and was incorporated into the hobbs act. we are talking about the statute which this court six years ago determined -- >> could be construed. there are three votes finding it unconstitutional and the others saying you could narrow it this way to the core definition of bribery. the difficulty in coming up with clearing off instructions suggest the caution the court showed at that point was ill-advised. it would be absolutely stunning if this court said bribery and corruption laws which have been on the books since the beginning of this nation and have been consistently enacted by congress to combat both federal, state, and look crimes -- >> do you mean to say the government has given us no workable standard? >> the standard that comes from this court's decision in 1914 where the court said things government officials do under a bribery statute are covered as
official action and they are not limited to things -- what you are talking about is how evil the conspiracy is. it is not able to fish or have a bottle of wine but it is evil if you up the ante. >> what i am trying to say, justice kennedy, is it is extremely difficult for anybody to believe that you could i a governor's position on a multimillion dollar tax report for an afternoon of trout fishing. that is why those cases don't get brought. it is not even clear there is a quid pro quo. >> one of the official acts here, it is allowing johnny williams to invite individuals important to star scientific's business to exclusive events at the governor's mansion. aat is essentially hosting party and allowing mr. williams to invite some people. -- why is that an
official act? >> he wasn't hosting an official party. we are talking about two events. one was a product launch with a government -- governor was giving his credibility to a new product in the invitations were critical to johnny williams plan. >> my question is this. statute,ial act, the it requires there be some particular matter clause suit proceeding our controversy. and if i understand the theory , is the attempt to get the university of virginia to do clinical studies of this product. is that correct? >> it is now more than our full scope of the charge but it is potentially correct. just -- if thed
indictment and the instruction based on the indictment had said is getting thet university of virginia to do readsal studies, that very differently from the way this indictment was structured. is ithis indictment does takes a lot of different pieces of evidence that might relate to that official act and charges them as official acts themselves. so the party becomes an official or calling somebody to talk about the product becomes an official act. you see what i mean? this might have been perfectly chargeable. instruct double. i guess i am troubled by these particular charges and instructions which seemed to make every piece of evidence you have an official act rather than
just saying the official act was the attempt to get the university of virginia to do something they wouldn't have done otherwise. >> justice kagan, what the crime was here, was the governor accepting things of value in return for being influenced and taking official actions to legitimize, promote, and insured research studies. it then alleges that he would do this as opportunities arose in the course of his official actions. because he is the governor and he has a tremendous amount of instruments -- influence, he heorts the board members, sets the budget, they know he is an important guy, he has lots of opportunities to do this in different ways over time. directing people to meet with stars representatives, ranging -- arranging events at the
mansion, the doctor she wanted to influence with the star people who were trying to influence it, the governor is taking every step he can do short of saying to uva, "do the studies." at the if you look indictment the way that it is actually structured, it talks about a person who, as opportunities arose, was going to engage in a -- in official acts. this was validated and cited in skilling as at perfectly -- as a perfectly valid form of corruption. did he intend to allow his official conduct to be controlled by the things of value that he received? taking them altogether, even if the court has trouble with any individual one, they allowed a rational jury to ensure that he did. the only way a petitioner could
you could include that jury instruction must exempt certain types of official actions like directing your secretary of health to take a meeting. which is a kind of significant event in the life of a cabinet member and the governor or hosting an event at the mansion can't possibly count because it should be viewed as social when, in fact, the governor is allowing his benefactor to get all the people in the room who he wants to influence to do the studies. was nothingthere wrong in the way the indictment is structured, the crime in this case, the official acts were exemplary, they were approved and the journey could properly sign them. >> mr. francesco, five minutes remaining. >> i have three points i would like to make. i would like to start out with the argument that a lot of the problems with theory are solved by the quid pro quo
requirements. -- theeral route judy federal gratuity statute has no print quote quote -- no quid pro quo requirements at all. then remember the name of bottle of wine you mentioned, but if you took them to that lunch to thank them for referring you to a meeting with a mid-level staffer, even if there was no suggest and at all that you were going to do anything other than call that stafford to say "can you take a meeting? " that would be a violation of the federal gratuity statute. if you took the person out to that lunch as thanks for giving you a two or of the capitol building, you would likewise have violated the gratuity statute because there is no quid pro quo requirement at all. >> there is a difference between for ae saying "thank you ,"cision you made independent
and someone buying you an extensive lunch and saying "i paid for this lunch but make sure i get into her." you don't see the difference? >> thanking somebody for giving you an official act, an official act is a tour of the capitol building, you have in fact violated the gratuity statute when you take them to lunch as a thanks for that particular task. trying to figure out the right form of verbalization, if we can't figure out the proper verbal formulation there are some very serious problems with the statute. >> i have read the brown commission report, i have read all these efforts to get language and i have looked at the presidents statute and i think i can limit that because i
think the statute itself seems to cover things like contracts but it is also true that a person who tries to influence those things has committed bribery. allroblem is with the birds sohow we write those words that we do catch those people who are doing that dishonest thing without allowing the government the freedom to do these ridiculous cases. >> i think the d.c. circuits decision -- i think the right answer you start out with bbc circuit processes and -- the d.c. circuit's are you making a decision on that? if you are the final decision maker or the final decision-maker because of your thecial talent, you have
ability and authority to influence other decision-makers, then are you doing that? -- mr.trayvon's argument eeban's argument that any government official who says "do you want to have a meeting? give me a thousand dollars." that is corruption inherent in the position that it is ok to .acilitate a meeting it is ok to say, i will do it for you if you pay me $1000. frankly, this was leading to my third point, which is, if there is no indication you are trying to influence the outcome and it really is just a meeting, yes, but that reflects the fact that these statutes are not conference of codes of ethical
conduct. wouldf other statutes prohibit exactly what you are suggesting. sorry.ry very my apologies. there are lots of other statutes despiteld inhibit that conduct and you don't need to take statutes like the hobbs act. >> what is one? take the example of somebody running a business and he is taking $5,000 a pop every time he arranges a meeting with the criminal division for somebody. >> there is a statute that prohibits supplementing your public salary with private money so you are essentially taking outside money for the performance of your duties. that is illegal. there is another statute that prohibits you from doing any -- taking anything from anybody who's interest can be substantially affected by a
performance or nonperformance of your duties. provision thatr prohibits you from taking any in violation of your official duties. >> why aren't they any less vague? when you are saying is that holding a meeting, taking a phone call, having a party is not illegal. that is something you are entitled to do. so why would those statutes be any less? >> they may well be in certain circumstances but i think that is the one that is officially , you can't take anything from anybody who is a covered person. that is not vague, it just says you can't take anything from anybody in your job. that is why you don't tickets from anyone. have ablem here is we
state regime that is much less stringent than the federal regime and the government wanted to use the open ended hobbs act to fill that gap in what they perceived as the state law. i would respectfully submit that is an inappropriate use of federal power. in, can i invite you to return? you are the second person to reach that rare milestone this century. i distinctly recall your first argument in january of 1989. throughout your career, you have advocated positions on behalf of the united states in an exemplary manner. on behalf of the court, i extend to you our appreciation for the many years of advocacy and dedicated service as an officer of this court. we look forward to hearing of you many more times. >> coming up c-span, the future
role of nato as followed by --lary clinton campaign was with senator elizabeth warren. >> special presidential envoy bret mcgurk testified today about the u.s. effort against isis. that hearing is live at 10:00 a.m. eastern on c-span. in his first major speech since being confirmed, army secretary eric fanning speaks today to the association of the united states army. coverage begins at 7:20 a.m. eastern on c-span two. c-span's washington journal, live every day with news and policy issues that impact you. the supreme court ruled 5-3 against the abortion access law.
national journal correspondent sam baker talks about this significant ruling. ydra elizabeth wh discusses other key rulings this turn and henry olsen, author of the four faces of the republican party shares his thoughts on the cases and their potential impact on the presidential campaign. watch washington journal beginning live at 7:00 eastern this morning. join the discussion. former national security adviser to president obama james jones and former ambassador nicholas burns talk about the future of nato in an event at the atlantic council today. this is one hour and 15 minutes.
>> good afternoon everyone. my name is damon wilson. i'm executive vice president of the atlantic council. i am delighted to welcome you for the launch of a very important report on nato. we are here for days after the british electorate decided the u.k. would leave the european union. while we are all trying to understand what it means and the implications, our community here believes one thing is for certain. no matter what, our alliance will become more important. it will be the glue that keeps us together across the atlantic, within europe, and the vehicle to defend our way of lives. we are talking about a report to restore need of power and porpoise -- power and purpose. general jim jones and ambassador james -- dave burns, thank you for your service and for being with us today.
we are joining us with a .onversation from evelyn farkas we are here for a conversation on nato after brexit and we are joined by a larger audience online and on tv and we encourage you to contribute to this conversation using the #strongerw and also ithallies. year ago, we set out to look at what was happening on both sides of the atlantic. concerns about america's role in the world and our ability to play a leadership role. what wasme time, happening in europe as forces of fragmentation were undermining a sense of solidarity among our allies in europe. brexit has deliver that message in sharp terms. we come together through nato.
our alliance. of wherehe uncertainty the european project is headed, we believe the u.s. role in europe is going to become even more important, to ensure a sense of predictability. reporting to leave the to ambassador burns and general jones. the reasons why the atlantic council moved forward at this the latestore debate, there was concern about the marlett -- the marginalization of nato, that it was no longer the center of our foreign policy. there is a lot about nato and them across the atlantic. in europe, they refer to them as the americans. we want to make a call for leadership and imagination, particularly american leadership.
headed to warsaw, which has proven to be a very significant summit for this alliance. now, inhappening right terms of european security and certainty of the world, we need to be prepared for the long-term. look at our budget, if you look at political resolve, we are not yet postured for the long-term reality we will face. worry our response is commensurate with the challenge we face when you look to the east and the south and internal challenges. third, there is beginning to be the remnants of a very strong narrative playing out across europe today. it is the broken promise narrative resident putin used in the wake of the annexation of crimea. europe, nato exercises in poland and the baltic states, that warsaw's strategy is provocative. we felt there was a problem,
that if we could not actually demonstrate the reality of our ability to protect our allies in the east, we would be negligent of our responsibilities. i think that will be a coming theme we will see play out in the way we frame the public perception. was it responsible or provocative overreach and beginning to make the case for sanctions against russia when we go through our own transition. atlantic council has been one of the stronger voices calling on our european allies and canadian allies to do more in terms of our defensive estimate. that will continue. if our only debate through that arene of burden sharing, we going to undermine that sense of understanding of the value our alliances. we believe our alliances are forced hires from our values and interests and it is one of our greatest strategic assets.
i am going to invite evelyn farkas up to the stage, a strong voice on these issues both in and out of government and a former key advisor to nato to moderate our conversation. general jones and the masseter burns join her. general jones was the chair of the atlantic council itself. he currently is the chairman of the center of the atlantic council and the head of the jones group. ambassador burns, who serves on the board, served under secretary for political affairs -- political affairs and is currently a professor at harvard. let me turn it over to evelyn to get started. >> thank you all for being here today. i am honored to be here with these gentlemen to discuss this report.
hoping that through this report and this discussion, we can transform the discussion and make the discussion about nato institutions more sizzling and get these gentlemen the spice boys of internationalism. we are trying to keep it light and interesting because if bernie sanders can do it i think you can to. let's make it more conventional. think it is important to spring forward a little bit and use some of the words that damon discussed about values and defending our way of life. looks like, while it a very dry report on nato -- good -- both of you have read a lot of these reports. whendoesn't convey often we have these conversations is it is really about our values. why do we have collective
security? you have to have some understanding of the history, what we are trying to prevent, but it is also about strengthening democracy, protecting our economic freedom of navigation and commerce. takenthings are not to be for granted. without deterrence, you cannot have all of those economic things, the prosperity, and of course democracy. you are here to listen to the sizzling spice boys so you each have five minutes to give your pointss or just the high that you think are most important about the report. i have a few questions for you and i am sure these folks have interesting questions and comments. >> good afternoon ladies and gentlemen. first i want to say thank you to the atlantic council. it is the fastest-growing think tank in washington.
when fred and damon took it over, it had fallen on hard times. it is now one of our most influential centers for learning. andratulations to david everyone else at the atlantic council. i want to say what a pleasure it has been to work with general jones. we worked at nato at a tough time after 9/11. i think jim for his continued leadership. we believe that nato and the european union -- the european allies -- are facing the greatest set of challenges since the end of the cold war 25 years ago when the soviet union imploded. i never thought we would come back to this time. i was serving in the administration of george h w bush on the nsc on soviet affairs. liberated from the cold
war and in the words of president bush 41, europe had become whole, free, and at peace. that was our mantra through the george w. bush administration and into the obama administration. that all changed in march of 2014 when president clinton decided he would invade crimea and annexed after having invaded georgia in 2008. so this report is underlined by some strategic clients that i find very negative. first is the re-division of europe by the russian federation, the search for strategic depth. that is why they went into georgia. that is why they had intimidated armenia and azerbaijan. it is what have divided ukraine. in the current pressure on the
baltic state. it requires a response from nato. the number one recommendation i think is important is nato should station troops permanently in the baltic countries, permanently in poland, permanently in romania and the black sea and have the capacity to act on the air and sea. this is not warmongering. this is what the russian government wants you to believe. damon and i were in europe last week. the russians are saying nato is provoking a crisis. these are clearly modest in terms of the two commitments. measures designed to stabilize the alliance, protect our smaller allies in the east and do what the nato alliance has to do, protect the member states and collective security in europe. we need to establish effective deterrence against putin. and that is why our number one recommendation is the permanent basing of nato troops.
the united states and canada and you should maintain sanctions on russia. those are now in question. the prime minister said we ought to trade more with russia. president hollande says we should question the sanctions and maybe take them off in december. there is a big debate in germany. we saw it in berlin on thursday and friday between the two political parties whether they should maintain sanctions against the russian federation. the europeans will extend them this week. but in december in the middle of our presidential transition, some europeans want to make a move to return to business as usual with russia. thankfully, chancellor merkel has been given every indication adheres to putin them to the letter, germany is not going to relax sanctions. there is going to be a big
battle in europe and across the atlantic on this issue. and we believe sanctions should be maintained. that is what effective deterrence is. third, we have got to have a stronger nato as we move forward with deterring the russian federation and president putin. right now, five of the 28 spend more than 2% of gdp on defense. that is the floor. those are the minimal expectations. --used to be three present to be 3%. it is true that 20 of the allies have inched up in their defense spending but not many close to 2%. we believe germany at 1.1% of gdp, spain, italy, the netherlands, need to do more in response to the crisis in europe. when donald trump, and it pains me to say this, because i am opposed to donald trump, has hit a chord with the american public that somehow we are being taken
advantage of because our allies don't spend enough on defense, maybe is incentive for the europeans to do more for their own defense and collectively in nato. we also have other recommendations. that is to be much more proficient in our cyber capabilities, to fully deploy missile defense, to be active to nato's south in places like morocco, tunisia, jordan, iraq, in training air forces at their request in these countries. there is a big set of challenges ahead and we believe it requires american leadership. i will end on this point. we are the leader of this alliance, the united states of america. we always have been. the alliance desperately needs leadership. when president obama goes to the warsaw summit in 10 days, he is going to be going there in the wake of this very dramatic consequential, historic british vote to leave the european union. while it is too early to know exactly where this is leading,
want to havebrits a second referendum to counteract the first, if britain does leave, we are looking potentially at a fractured united kingdom with the scotland question and irish question coming back a century later to bedevil the future of the united kingdom. we are going to need to see the united states embrace the united kingdom and our special relationship. it is the fifth-largest economy in the world. it is the second strongest military in nato. we will still be able to work with them in nato, but we won't have the british to be the tough minded and pragmatic voice in e.u. councils on issues like do you continue sanctions against russia. we talked about this in berlin in a public forum on friday morning. the united states is going to have to seek a deeper relationship with germany. germany, the dominant country in the european union the most respected leader in europe, angela merkel. that relationship is one we will
have to build further in this administration and the next. thank you very much. gen. jones, usmc, ret.: thank you, nick. thank you for being here. i would like to echo portions of this report and acknowledge my predecessor twice removed at nato who is here, mentor, a great friend to all of us who were privileged to follow in his footsteps. i would like to underscore the work of jeff lightfoot in writing this report. jeff, thank you very much. your performance was extraordinary. i think nato -- this nato summit sees nato facing forward strategic challenges.
the first with regard to russia. the chaos and disorder imitating from the middle east, a less than certain u.s. leadership and engagement policy, which does not just start with this administration. it actually started a for this administration. union thateuropean his weekend, maybe fatally so. time will tell. aboutmmit in 2014 was reassurance. the warsaw summit of 2016 is about deterrence. there are a lot of people talking about deterrence and dialogue. and as nick correctly pointed out, if you want to have an effective dialogue, the first thing you need to have is effective deterrence. otherwise, there is not much of a conversation. and that is extremely important
and i'm pleased to see the shift towards deterrence. the highlight of the summit will be nato's enhanced presence of the four battalions stationed in each of the baltic countries and the use of the bases in romania and bulgaria. the u.s. quadrupling resources is also extremely helpful. and the fact that nato is moving to declare cyber and official domain is also quite useful. i think as a report points out, nato's activities on levels of ambition need more emphasis in certain areas. the first one it comes to my mind is what nato is going to be used for in the 21st century. the simple paradigm is if nato was a defensive, reactive alliance in the 20th century, in
the 21st century given the nature of the threats that face us and the speed at which these threats are coming at us, it seems to me that nato must become a more difficult alliance. i don't mean starting wars were triggering wars, i mean preventing wars. preventing predictable disasters from happening so we wind up in another afghanistan and iraq for a decade or more. this proactivity speaks well to an enhanced program involving partners started years ago. i think we need to do more of that but on a grander scale. migration is a big problem and causing incredible tensions politically. it may have had something to do with brexit as well, obviously. preventing this uncontrolled movement of millions of people
is something i think the grand alliance of 28 countries should be focused on and should be doing something about and preventing those kinds of colossal movements of people is something we should worry about. i think nato's first job is to enhance the security of itself and also to help other like-minded countries in africa and other developing countries figure out how to ensure their own security so they can move into economic governance. a i think this proactivity is new word in nato. in the glad to see this report because it speaks to what nato can and should be in the 21st century. spending, nick covered very
well. if we don't achieve this 2% of gdp, shame on us. this was agreed to in the summit of 2002. and it is now 2016. we still have too many countries falling short of what they agreed to many years ago. and frankly, if we don't achieve that then nato's credibility is suspect. leadership, i want to dwell on that a little bit. it is clear u.s. leadership over the history of nato has been central. it does not mean it is dictatorial or we talk down to our allies. but it means that a u.s. president has to be engaged in what nato is about. we cannot walk away from a 28 member nation alliance. 27 including us, and pretend it is not useful.
it is terribly useful. the potential for nato in the rest of the century is, as far ahead as i can see, is tremendous. but it has to be used correctly unless thet be sitting qs president devotes a fair amount of time to devoting a fair amount of time to making sure the secretary general of nato is recognized almost at head of state level and is as important an ally as any single country. when the nato secretary-general walks into the oval office, he brings the voice of 27 sovereign countries. f is important. how we react to that is also very important. summituld hope that the will see a reassertion of u.s. commitment to supporting the alliance and making sure that the members live up to what they have agreed to do. nato-eu relationship has
always been slightly uncomfortable. we have never really figured out how those organizations coexist. mostly at the political level. this is not a military problem. the military knows how to solve these problems extremely well. it just remains to see if they are politically acceptable. but we cannot afford to have two separate militaries and two separate hierarchies of the militaries. and we have proven that in the balkans. and i think militarily, that could be proven again. i would say especially at this time, very important for the united states leadership and nato and e.u. to come together and figure this out once and for all. i think it is possible. those would be the points i would make by way of opening bid. dr. farkas: that is great. i will leave out the names.
but well before the whales summit, a very high-ranking nato official said to a very high-ranking u.s. official, deterrence before dialogue. , think it was interesting there was transatlantic unity on that amongst individuals and we are seeing that come to fruition. i am going to ask a macro question and you can cherry-pick a little bit from the macro question in the interest of saving time and getting a few other things into discussion, which the audience can pick up on if they like. it is clear if you had to take these 10 recommendations, the two most important are leadership and being proactive. if you have those two elements, you can take care of the other eight. there are a couple of other items. you cannot fit everything into one report. you did touch on some of these in your comments. there are three other areas where i think we want to think
about how we can use leadership and be proactive. one has to do with expansion. if i were to make a recommendation to the heads of state going into the warsaw summit, i would say make a big deal about the fact that you are expanding. damon said this before. insecure institutions don't expand. they don't allow the members if they are feeling insecure. i think the fact that montenegro is being admitted to nato, while it is a small country and is not going to contribute phenomenally to nato's defense, it will contribute to its own defense and has been contribute all along to nato operations in afghanistan and elsewhere. i think the question of expansion is important because right now, he mentioned the dialogue and the russians pushing back. they are pushing back on nato expansion.
save this is a move against russia. when in reality and both of you nato expansion was actually aimed at spreading security and stability throughout europe. and that is an unfinished piece of business for nato. so if you would like to comment on that, it would be useful. i think we still have aspirin, if you have a message for them. the other element touched on in the report but could be fleshed out is the issue of hybrid warfare, unconventional warfare, little green men or demonstrators. that is where the e.u. comes into play. if you have anything that requires law enforcement and strategic communications, those are areas nato does not have competency in and would have to work closely with the e.u. on. i believe in warsaw they will make a statement about that. i would be interested whether either of you have comments on
that, about what more we could just in that area. finally, you mentioned being proactive in the middle east and africa. and you mentioned the refugees. and hanging over all of us is the catastrophe that is syria, the cause of the refugee flow. is there something nato could or should be doing? those are my three big ideas. you can pick and choose as you like. ambassador, i will start with you. amb. burns, ret.: in one minute or less? i will much i to answer all your questions, i think some are better for jim as a military leader to answer. let me say a couple of things. first, it was striking to be in europe last week. damon and i went to brussels to present this report and went to berlin to do the same thing. the europeans, some of them are quite reluctant to be too truculent with president putin. the bumper sticker that will
emerge at the warsaw summit on russia is deterrence and dialogue. many of the europeans were advising us that you americans need to believe in those equally. my response is i don't think so. i don't worry about dialogue with the russian federation. kerry,ry of state john who i deeply admire is on the phone constantly. there is no absence of discussion between the u.s. and russia. there is an absence of productive work on behalf of the russian federation. one thing i learned as a diplomat is you often succeed in diplomacy when your position is strong strategically. deterrence, moving troops into the baltic states, moving troops -- and by the way, these are very modest levels. but to show president putin we will be true to our article five commitment to protect these countries should that be necessary, that is vital. if he believes we are powerful and unafraid to exercise that power, he will be much more
likely to engage in productive dialogue. my advice to our german friends was that they are both important -- deterrence and dialogue -- but deterrence at this stage given what putin has just done, is much more important. we need to stand up to putin, and i hope that will be the message from warsaw. second, there is a very aggressive russian propaganda campaign, well financed, across europe trying to insinuate it is the united states that has caused the problems presently in europe, not russia. i was personally dismayed when the german foreign said publicly a week ago on saturday that nato exercises in the baltic states were saber rattling. that is exactly what the russians want the european public to believe. fortunately, angela merkel came out on wednesday and said she
supported these exercises and felt germany should for the first time, put together a plan to get to 2% of gdp on german defense spending in the future, which was a very welcome message. saber rattling, to accuse the nato allies of protecting their own territory is not saber rattling. saber rattling and more was the invasion of crimea and invasion of georgia. dr. farkas: and nuclear saber rattling. amb. burns, ret.: it has , the russian federation, has withdrawn from the treaty and is not respecting the core of the arms agreements we negotiated in the 1980's, 1990's, and after 2001, to try to secure europe. russia walked away from it. the united states has not walked away from any commitments.
of 1987. i think we have to be clear about what the problem is. we may have witnessed in germany, the opening of the german elections of 2017. my german friends kept telling me stein mart only said that because of the elections. i said but you don't want to play into russian hands. it is very important americans have enough self-confidence to be clear about what we are trying to do is protect security in europe, our own vital interests, and those of the europeans. last, on nato expansion, montenegro will come in, a very positive development. positive in tangible terms for them, symbolic terms for the rest of us. we have always been an open alliance of democracies. we never said this. but underwriting, underlining nato history is the repudiation of yalta.
we are not going to trade one country's future over their heads with the russians. we are not going to do that on georgia. we should not do it on ukraine. since the end of the cold war, i think all of us in every administration have believed every european nation should get to choose, have the right to choose its future. nato enlargement was demand driven. a lot of us here in this room worked on this together in the clinton administration and in the george w. bush administration. these countries wanted to be part of the eu and they wanted to be part of nato. we were happy to take the ottoman -- happy to take them in. we filled that security void in central europe left after the collapse of the warsaw pact. imagine where we would be today had we not expanded nato into the baltic states. i think president putin would have his forces right up on the river separating estonia and russia if not over the river. those states would be
threatened. it is very important, a very important decision by three american presidents, democrat and republican, to do this. i know a lot of people want to blame us. this is another putin line. if we hadn't expanded nato, putin would not be putin. i don't believe that. we should be proud of what we have created and strengthen it. that is the opportunity president obama has. dr. farkas: thank you. general? gen. jones, usmc, ret.: i completely agree with the last statement with regard to the current russian president, who in 2009 informed our president at a breakfast in moscow there was an agreement that nato would never expand and take in to its membership any of the former warsaw pact countries. that we violated that agreement. we have been looking for the agreement. [laughter] gen. jones, usmc, ret.: somehow
it is hard to find. somebody lost it. there was no such agreement. it is interesting the president of russia deeply believes there was such an agreement. that complicates the issue when you don't look at history the same way. on enlargement, i think one thing nato might consider is to look at the enlargement and partnership program because they are all kind of lumped together, and i think they are vastly different things. i think it is for the alliance to determine when a new member is eligible and has met the requirements for membership. in my book, new members should bring value to the alliance. not problems, but value. and we should have common values. when nato decides to do that, we should do that. on the partnership program
started years ago, i think this is a potential for enormous influence. while people are waiting to become members, and that is their choice, the possibility of expanding the partnership program and membership program for that aspect is off the page. it ought not to be limited to just european countries. i would suggest it may be possible to reach out to moderate arab states, even african countries, even countries in the far east who want to have interoperability with nato and common tactics, training, and procedures to respond when needed across the board on humanitarian missions to other kinds of missions. i think it is important to do that. when you think about the middle east, you think about a
collection of countries that have common language, generally common religion, common values, common culture. you kind of wonder if nato could be an interesting example for them to follow as an organization. nato could be very helpful in helping arab states develop their own kind of security treaty organizations. i am for enlargement. i am also for taking a look at the partnership for peace program. on the hybrid question, it is a very interesting question. it is one we have not addressed very well. this is where i think nato and the e.u. could work together because part of the missioning in that type of warfare would be definitely in the e.u.'s wheelhouse.
this is something that i think we ought to work on. nato ought not to be impervious to cyber security threats and energy security and even economic security. that should be part of the dialogue. one of the responses i think would be very meaningful and certainly send a message to the russian president is the construction of a north/south corridor from the baltic's to the adriatic for transportation, telecommunications, and energy. this is not a pie-in-the-sky dream. this is actually ongoing in the dialogue in the e.u. and washington with very favorable support. it involves freeing 13-14
different countries and reducing their dependents on russian energy, for example. this would be a long-term consequence to mr. putin's actions in ukraine and crimea, which i think are well worth considering. this is a hybrid type of response to russian aggression in those areas. i think it would have tremendous impact on russian thinking in terms of doing it elsewhere. and lastly on syria, i actually believe a few years ago we might have had an opportunity to perhaps forestall certainly the tremendous migration problems that are being squarely faced by the europeans. that is by borrowing a page from operation "provide comfort" in
northern iraq in 1991. had we been more forceful in enforcing the redline, i think we could have created, along with our nato partners and moderate arab states, a humanitarian zone, no-fly zone, whatever you want to call it, as a consequence to president assad's use of chemical weapons on his own people. i think you could have had a safe zone for refugees and could have taken a significant chunk of syria and with the military capability of nato and the arab states and the united states, i think you could have forestalled the migration problem we have had. who knows what could have happened? i am not sure it is off the page completely. i know there are different views about that. dr. farkas: you preempted me. is it possible today? gen. jones, usmc, ret.: it is more complicated because of the russian presence.
back then, there was no russian presence. i would not completely dismiss it. thank you. amb. burns, ret.: i think it is hard to envision nato as a whole amb. burns, ret.: i think it is hard to envision nato as a whole going into syria simply because we operate by consensus. each of the 28th allies would have to agree, which is not goig to happen. what if the humanitarian situation worsens, think of the data point at the beginning of the war and april of 2011. the u.n. thought there were about 22.5 million syrian citizens. over 12 million are now homeless. 7 million inside the country. 5 million outside the country. should that situation worsen, assad now says he wants to
reclaim the rest of the country. russia violating the reassurances it gave other countries, the humanitarian imperative demands we ask what we can do. we don't want to put a big american land army there. we've learned our lesson from iraq. but do we have a humanitarian obligation to create -- help create humanitarian corridors? how do you help the refugees who are starving? there are two possible places for a safe zone. i don't think we should give up on that idea. it is two minutes the complicated. there are 80 million reasons not to do it. if that 12 the number becomes 14 million, you get into the situation we were in bosnia. you have to act. you have to challenge the russians to help us. that ought to be the first call. let's see what they say, see how cynical they are about all those lights he lost in syria. we cannot stop talking about it.
dr. farkas: i agree 100%. it has been my feeling for a while having worked in bosnia after the war and studied and written about it. and of course, you are both actively engaged in diplomacy and in your military careers at the time, so you know what it looked like in 1994-95. i think we are exactly there with syria. even if you don't know how you will resolve the conflict, you still have a responsibility to do something to alleviate the suffering. we did have a safe zones which did not work. i should not say they did not work. they did not work in every case. i think this has been incredibly informative, dynamic i think. i don't know whether it is spicy yet. you have a chance to make it more interesting. i think there are probably people out there with microphones. i will call on folks. i will try to be democratic. i will take right here from the front. get ready on that side of the room.
>> jim cunningham, atlantic council. thank you for the report and recommendations. in order to try to be a little bit provocative, given the events of the last couple of years in the european union and nato's own difficulties given the fact we have an administration that only has eight months left in office and the british having now decided to withdraw and all of the effects that will have in the european union and in nato, because they may be separate organizations, but they are not separate entities. and given the fundamental
question, do we have shared values and a shared view of what our way of life is? that is certainly underlying part of the debate in the united states and u.k. in europe. east and west and north and south among alliance members. do you think it is possible to restore the power and purpose of the alliance? that is exactly the right question. amb. burns, ret.: jim cunningham was our great american diplomat and most recently our ambassador to afghanistan. we left us out of our report. it urges the alliance to stay in afghanistan. i know you feel deeply about that. when damon and i met with the secretary-general last tuesday, he assured us nato was staying in. the defense ministers had taken that position the week before. i think you put your finger on the central issue about nato. we are many things. we are a military organization we are a political alliance. we are bound together by shared, democratic values. that is who we are. we don't invite countries in who are not democratic. if you look at the end of the executive summary, we are
concerned about some of the populism, nativism, right-wing nationalism occurring in europe. look at viktor orban, with look at questions people have over the new polish government. we have some of that going on in our country. nativism, populism, in a person of donald trump. dr. farkas: i'm comfortable with you speaking for me. amb. burns, ret.: there is a candidate for the presidency who questions whether the united states should continue to be in nato, who has threatened nato allies if they don't pay up, he will walk out on them. i think the answer to your question is we need presidential leadership. we have always needed american presidential leadership. we are the outsized country in that alliance. we are up to 75% of the defense spending. we would like to reduce that ratio and have the europeans contribute more.
i think president obama in the wake of the brexit vote has a responsibility but also an opportunity for him and the united states to show our faith in nato. and to show our faith in the united kingdom, and to show our faith in a stronger leadership role for germany. having looked at this over the last several months and working through the report believe we need a stronger germany, stronger militarily, stronger politically. i would say angela is probably the most respected leader of all the great powers right now. the relationship between the american president any german chancellor with the bridges the british exiting, the european union become central to everything the united states needs to do in europe. i admire president obama very much. i hope he can give that ringing speech, declaration at nato of american commitment. if there are any doubts in our country, trump may be in a minority of one, that nato, then
the president can speak to that. i'm proud to say hillary clinton is definitely standing up for the nato alliance. gen. jones, usmc, ret.: i would add one caveat to that. it is not only about paying your way. you should do what you agreed to do. there is no doubt about that. but i think the american public is no longer willing to be the only ones who didn't majority of the fighting and dying in these missions -- do the majority of the fighting and dying in these missions. they will have to step up in combat roles. a lot of them do. dr. farkas: even partners like georgia. gen. jones, usmc, ret.: exactly.
a lot of them do. but it would be much better if everyone did. one of the difficulties of a 28-nation, maybe 30 in the near future, one of the big challenges is getting everybody to agree to the same thing. i think you are going to have to have a more agile voting capability before some allies want to do things and others want to sit it out like we did in libya. i think you're going to have to have that agility. if you insist on unanimity, it is going to be very difficult. but i do think it is fair to say some of our allies need to not only step up financially, but also step up to the troop commitment to do the hard work. dr. farkas: we have a question from this side of the room.
we will start with the gentleman here. i promise i will go to the back and be democratic. >> my question is, what could nato do for ukraine to help this country become closer to the western alliance and what ukraine should do to become closer? thank you. gen. jones, usmc, ret.: go ahead, ambassador. [laughter] amb. burns, ret.: and then over to you. we both wore our nato ties today. i think one of the big policy questions for the united states and nato is the extent of our support for ukraine. ukraine has very sound political support from the nato alliance about what happened to it, the dismemberment of its own country. annexing crimea is crossing the brightest redline in the u.n. charter. i think they felt the political support with a have not felt the military support.
i believe we should provide legal assistance to ukraine. i think ukraine deserves that and they have a right to defend their country. but that is a policy question that president obama has answered in the negative on that. we will have to continue to debate that in our country. on ukraine in nato, we have been partners for a long time. we have had a formal relationship going all the way back to before joe and i arrived at nato in the last decade. ukraine had a long way to go to be considered for membership in nato because of the territorial divisions, the corruption, because of some of the lapses in democracy. we don't call in this report for ukraine to be admitted next
month to nato. but i certainly believe what all of our presidents have believed, and that is ukraine has the right to think about a future with nato, to work towards that future. the timeline, who knows? it depends on events in ukraine itself. let me finish by going back to a point i made earlier. it is important signal to the russian federation that russia has no veto over who joins nato. even if russia invades countries, that will not stop nato countries from working with them and having a relationship which could or could not turn into membership. a lot will depend on the ukrainians themselves and whether ukraine can build a fully fledged democracy. let's hope that it can. dr. farkas: do you want to add anything, general? i will add i think ukrainian government has passed a lot of good legislation lately. the question now will be on information. i am feeling bullish this week. back of the room. it is hard for me to see. i will go the furthest back on the right with two fingers up.
>> nick, i think many of us in this room remember a time when the slogan in this town about nato was out of business. i wonder whether we allowed ourselves to be distracted, whether it was that kind of thinking that led us to pull our major land forces out of germany, that were not central to article five. i wonder if we have to be careful about making that mistake, that nato not be the tool for dealing with migration issues, that we need to be careful about nato's training missions, about expanding the role of nato in the middle east. i wonder if when he to focus on nato as a self-defense organization focused on europe. dr. farkas: i notice we have only about 15 minutes left, so i am going to until these with my colleagues. -- i'm going to bundle these with my colleagues. margaret?
>> there is talk that they will lose a vigorous friend in the eu if it goes forward, how do you feel that if, at all, it would affect britain's role in nato, and in particular, how muscular a partner it has been for the u.s., not only militarily, but just a viewpoint. dr. farkas: and when on this side, the gentleman. >> just to follow-up up on margaret's point, could you in the general -- could you envision something like a joint policy planning council, in order to consider threats of two european allies that could be dealt with by both institutions, since 22 out of 28 members and members of both?
dr. farkas: ok, let's take those three. >> i want to salute bob in the first decade, and bob asked the first question. bob, i agree. what i found implicit in your question, we are not back to the cold war, but we are not -- a re-division of europe by putin, and if our core responsibility in nato is to respect the people and the people's in the alliance, then we have the primary goal -- it has to be effective deterrence against russia going forward, and as you
imply, that means we cannot do everything, and we cannot be in every mission around the world. you have to choose. i would say that we made the right decision to go into austria in september or october of 1995, and we stopped the war, and we did not lose a single soldier in a combat death, and the general was a huge part of that, and then we made the decision to go into kosovo to stop the annihilation of the population by milosevic, so i am proud of those that nato undertook, and, frankly, i think we were right to put nato in afghanistan as a collective mission in august 2003, when we
deployed, and we believe in this report that we should stay there. it is a longer subject. margaret, to your question, the big loss if britain is permanently out, and even if written splinters and weakens and is consumed by internal angst, the big loss would be written's voice in the eu, because we tend to share a common strategic outlook with britain, but you are right to focus on nader. i think jim will be a better -- a country willing to deploy in willing to fight, the british certainly have done that in afghanistan as well as iraq, so we really do need a strong britain in nato, and given some of the -- we argue everything, and we operate by consensus, and sometimes we argue for years. britain is a voice of reason and strength, and we need that voice in nato, i think, going forward, and jim has been ringing the village bell on nato and the eu, and he ought to. there ought to be a joint council between nato and the eu that would bring the united states and institutional linkage, which we desperately need at a time when the british may be withdrawing.
dr. farkas: general? gen. jones: the rise of terrorism and entire countries that could be overtaken by that kind of an ideology, if we can afford to have a nato that is just sitting, waiting for something to happen with the borders of nature. i just do not think that is -- if nato is going to be a main contractor to our collective security. i think while you cannot do everything, there are certain
events that are coming toward us that mandate that we pay attention to them, unless we want to have another afghanistan or another iraq, so to me, proactive consideration is cheaper and more effective, and it is a big training mission, really, with partners and allies , but you could prevent any number of countries from being overwhelmed by radical ideologies that seek to transform their societies against us, by the way. we are the collective bad guys here for all of this radical fundamentalism that is going on, so i think they should be engaged, and i think they should be engaged in a way that is less expensive and would yield better results. you're not going to have economic develop it and freedom of governments and will of law unless you have security, and
nato is the 10 security organization there is, and it should be emulated. it should because we'd. it should be admired, and we should expand it. -- i think we should duplicate it. one of the most powerful militaries there are, i think their role will continue. i would like to see the u.k. stepping up a little bit and get up to the percentage and definitely not go below it, but i think they have a very important role. i think maybe even more so now with this maybe even more so now with this >> it -- this brexit. dr. fargas: basic to the ukrainian troops right now, which is really the number one thing we are giving ukraine these of the russia. -- vis a vis russia.
jones: this is to help them seal their borders, to help them defend themselves, to help them train their military, to have a function under civilian leadership, and i think you would avoid many future conflicts by being there a little bit earlier. timothy: i am timothy, a retired ambassador and a colleague of nick, 31 years in the state department. i think this is fabulous and that it is important that these
ambassadors and news men get the word out, because it is very important to nature. my question is for my friend nick. you listed three or else you are things that are vital, and three of them get the attention of everybody, racy things like exercises, stationing permanent troops in sovereign countries over there. a stronger nato, i can hear the music, but then you talked about sanctions. well, that gets pushed back on the business section of "the new york times" sometimes. people ignore it. i wonder if you and everybody else here -- you talked about those business as usual, pro-russian types. you mentioned donald trump. i wasn't, but you mentioned, so i will, and three weeks ago, somebody asked about brexit, and he said, what is that? i will get back to you. and then he is over there in scotland, saying this is the end of the world. why don't we push the sanctions bit and point out this new wizard, what is his name, is a lawyer who does business in
russia and loves putin. the rest of us have to register as foreign agents because we are not lawyers, and they can run around down here without registering. why don't you go after the 12 -- trump crowd? was a very spicy question. -- dr. farkas: thank you. that was a very spicy question. over there. >> afternoon, the atlantic council. the question is region specific. we have a mission and a coordination in the baltic region.
what about the black sea? and the black sea, you have disparate militaries, disparate countries, romania, bulgaria, and turkey as nato members, and you have georgia and ukraine as potential nato allies but not currently members. what kind of coordinating structure would you recommend to create, and maybe as a recommendation, for the nato summit? because otherwise, it is not clear to me how do you coordinate the air, sea, and ground limits of that, and what timeframe you would be looking at implement that. thank you very much. dr. farkas: i do not know if it was he or elsewhere, but he talked about the security initiative, so i think you are continuing towards that. ok. a third question. over here. sorry.
and this will be, i think, our last question, because we need time. >> from the hudson institute. my question is with the number of active military declining, 400,000, 500,000, and with the pivot to asia well underway, how can the united states reassure our european allies without becoming overextended in multiple regions around the world? how can we balance our priorities while still deterring russia, especially when they look at 100,000 troops. dr. farkas: ambassador? >> our report,
it is one of the recommendations, that we be tough-minded about maintaining the sanctions on the russian federation. obviously, chancellor merkel and others may be correct decision when putin went into ukraine and not to fight. they are not a member. we had no article five with them, and we do not want a war. that sanctions was the response, and now we see at least three european union are -- leaders imply or state that they think it is time to end the sanctions before putin has met any of the sanctions. it would be giving a victory to putin and leaving him towards territorial aggrandizement, and i am quite confident the obama administration is going to hold the line on this, and from what i heard in germany last week, chancellor merkel is going to roll that, but everyone has to
agree to pitch the sanctions forward to continue them, so it is going to be a real battle forward, and smacked in the middle of our presidential transition, and as private citizens, we advised some of these europeans do not challenge the united states during a presidential transition. do not challenge our outgoing president or our incoming president and do the right thing and support the sanctions. i certainly do not want to see us cut the defense budget. i think the pivot, the rebalancing to asia is the right idea, and president obama is right to build up american resources in guam and the air
force base and in australia and south korea. it was impressive to see the carriers go through international waters in the south china sea last week. it makes a big statement, but you have to have a healthy defense budget to do it. we are big enough. we are wealthy enough, and we are a global leader, so in rebalancing to asia, there is no contradiction in pivoting back to europe. we hollowed out our military in europe to fight the afghan and iraq wars, and i very strongly support what -- carter has done to convince congress that he can use defense funds to rebuild the american military in poland, the baltic states, and on our basis -- bases in europe. we need to do that if we will have a strategic advantages with putin and not just have a one off, to put it into the regular budget so we can have a regular military presence in europe, which is very welcomed by the europeans, by the way. general jones: there is an expression that virtual presence is absence. if you want to be a superpower
call you have to be a superpower, and you cannot pick and choose where you want to be a superpower. there is all this discussion about pivoting and rebalancing and all of this other stuff. it is kind of restating the obvious, in my view. i think most americans really want this country to have the same type of primacy in terms of what goes on in the globe in 2050 as we did in 1950, and if that is the case, then withdrawing from the world or withdrawn from regions will create vacuums, and vacuums are filled by people who do not have your best interests at heart. we have seen that recently in the middle east and with russia. we have seen it in different other places, as well. the next administration is going to have to get on board fully with where is it you want to take this country, and where do you want this country to be, and places like the black sea are important, and they are important not only militarily and strategically. they are important economically, and one of the things that i have noticed is that there is a different dialogue when you talk to eastern europeans these days and western europeans.
western europeans seem to be much more willing to forgive and find a reason to say, well, they did not say it, or they did not mean it, and we shouldn't do the sanctions, but in eastern europe, you do not get that at all. and having just come back from romania, i was very pleased to discover on my arrival there that 700 u.s. marines were training on the romanian bases that we got them to modernize back in 2006 when we were in nato together. the same in bulgaria, so if you go to those countries, and you talk about how serious they think the threat is, you get the
same kind of rhetoric that the germans and the british and the french were talking about in 1950 when there was a cold war, so the united states, i think, find itself as a global power, not focused only on an east/west strategy, which is dominated our thinking for the last 70 years or so, but also having to think about new realities in our own hemisphere and also the rise of the african cotton that is a reality that is going to be upon us before you think, and so, we have to be engaged as a global power, and we cannot withdraw. it is in our own national interests, not because we are magnanimous and want to do good things all over the world, but it is in our own national interest to be able to do that, and it is our inheritance, really, from the 20th century, but it is a different world, and we have to organize ourselves differently. we have to be more agile. i ha