Thursday, May 30, 2019

When Foreign Policy Meets the Law: Greg Craig and the Ukraine

by Caleb S. Rossiter
Director, American Exceptionalism Media Project

(UPDATE: On September 4, 2019, after a three-week trial, Greg Craig was acquitted. Here is a link to an article about the trial and its outcome.)

Greg Craig, a prominent Washington lawyer, was recently indicted for misleading and lying to Justice Department regulators of the Foreign Agents Registration Act. The indictment argues that Craig should have registered under this Act for his actions in carrying out a 2012 contract, brokered by lobbyist Paul Manafort, to conduct a study for the government of Ukrainian President Victor Yanukovych.

The study was on the fairness, under European and American legal norms, of the 2011 trial of the person Yanukovych narrowly defeated in 2010, former prime minister Yulia Tymoshenko. She had been convicted and sentenced to seven years in prison for exceeding her authority and deceiving other officials while negotiating gas prices with Russia after it cut off Ukraine’s supply in the winter of 2009.
The report found a number of violations of due process. When the Ukrainian government claimed that the report vindicated the trial, Craig countered the claim by giving the report to and discussing it with two journalists. According to the indictment, that made him a lobbyist subject to registration as a foreign agent.

The key to understanding this case, and why it could well be dismissed or fail at trial in August, is that Craig was recommended by Manafort and hired by Ukraine precisely because everybody who follows foreign policy in Washington would doubt that Craig, the former chairman of the International Human Rights Law Group, would act as an apologist for the Yanukovych government. As a result, his report, by contract a completely independent inquiry with guaranteed private interviews with the judge, prosecutors, and investigators, would be taken seriously.

The Ukrainian government must have thought that Tymoshenko’s constant disruption and delay of her trial would convince Craig that its conduct was restrained and fair. Her actions were similar to those of the Chicago 8 defendants in 1969, tried for conspiring to disrupt the Democratic convention of 1968, who also refused to recognize the court’s authority in what they considered a politically-motivated case. 

Tymoshenko wasn’t bound and gagged, like Black Panther leader Bobby Seale was when he too kept demanding a different lawyer, but the judge ordered her detained for the remainder of the trial and sentencing to control her disruptions and guarantee her attendance and cooperation.  

Craig delivered a completely independent report, as per his contract. Unfortunately for Yanukovych’s government the report found significant faults in the judge’s decisions on Tymoshenko’s detention, right to counsel, and ability to call and question witnesses. Craig’s judgment that an appeal in an American court would result in reversal, as it did with the Chicago 8, was obvious:

“Tymoshenko’s continued detention during this period, without adequate explanation or justification, calls into question whether Tymoshenko was inappropriately deprived of liberty prior to the conviction…(A)ppellate review…would have been provided under American law and is not provided for under Ukrainian law.” For the Court not to adjourn so Tymoshenko could choose a new lawyer with time to prepare “likely constituted a denial of due process rights.” Questioning of witnesses without her lawyers present “would almost certainly be viewed as a violation of the right” to counsel. “Under Western standard of fairness” the court’s decision not to call the witnesses she requested “compromised Tymoshenko’s ability to present a defense” and “likely constituted a denial of due process rights."

Craig insisted from the start that he would analyze only the conduct of the trial, and not “opine” on questions of guilt or innocence or the political motivations for the trial. The allegations of “exceeding authority” by negotiating the gas deal without cabinet approval and deceptively using a directive with a cabinet seal to convince the necessary Ukrainian official to sign it were certainly presented in detail by the prosecution and contested by the defense. 

Such trials of political figures for exceeding authority in office were not uncommon at the time, both in the Ukraine and in Western legal systems. Yanukovych himself, who was removed from office by parliament and fled the country in 2014, was recently convicted in absentia of treason. In 2014 the parliament also voted to free Tymoshenko by decriminalizing the “exceeding authority” statute. She returned to parliament as leader of her party and ran unsuccessfully for president in 2014 and 2019.        

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The shocked reaction of most people in Washington foreign policy, legal, and media circles when Craig’s work for the Ukraine became public was probably: “What was this Democratic stalwart and human rights activist thinking, getting involved with people like that?” But those of us who know Greg Craig and his work of decades -- and I have been his friend since we were part of what he called “we happy few, we band of brothers and sisters” on the congressional staff working to end U.S. funding for civil wars in Central America -- knew exactly what he was thinking. 

It’s what he always thinks when his legal work intersects with foreign policy: I’ll get involved with “people like that” if it can help promote U.S. interests by expanding the global rule of law.

Americans have seen Greg as President Clinton’s lawyer, addressing the Senate during the impeachment trial, and as President Obama’s counsel, trying unsuccessfully to close Guantanamo prison and successfully to have Sonya Sotomayor confirmed to the Supreme Court. What they probably don’t know is that in private practice Greg often took on controversial foreign policy issues. In 1996 he was the co-founder of the U.S. Committee to Expand NATO, an organization dominated by neo-conservatives like Paul Wolfowitz and Richard Perle. And in 2000 he represented the father of Elián González, the Cuban child whose mother died bringing him to the United States and whose return was a propaganda coup for the Castro government.

I’m no fan of the Cuban dictatorship, and as the director of Demilitarization for Democracy, which opposed destabilizing arms exports, I argued that NATO expansion was a senseless provocation to Russia that would only benefit American arms-dealers. Exhibit A was Lockheed Martin, whose vice-president was the other co-founder of the Committee to Expand NATO. 

But it never crossed my mind that Greg’s motivation in these cases was anything other than protecting and expanding the rule of law, which he sees as fundamental to U.S. global interests. When the Ukraine contract came his way, I’m sure he saw it as an opportunity to continue work he had done, both during the NATO debate and then as the director of the State Department’s office of policy planning in 1997 and 1998, to integrate Ukraine into Europe and its legal values.

I recall a brunch at Greg’s house a few years ago where we talked about the conditions under which he’d represent a foreign dictator. I mentioned Libya’s Muammar Qaddafi, whose government was being sued by American families of the victims of the 1986 bombing of a Berlin nightclub, an apparent retaliation for the sinking of Libyan naval vessels that attacked U.S. forces when they crossed Qaddafi’s “line of death” in international waters in the Gulf of Sidra. “Oh, I'd take that case in a heartbeat,” he said.

Greg answered my shocked expression by explaining that a settlement would be good for the families and good for U.S. interests. Ironically, a few years later I found myself agreeing with him when as counselor to Congressman Bill Delahunt I became involved in the final settlement talks in 2008, meeting with Qaddafi’s son Saif, whose foundation was the face-saving way for Libya to compensate its victims and their families. 

Greg’s motivation for saying he’d take on that difficult case was to promote America’s interests. I believe it was the same for his work on the Ukraine. He wasn’t Ukraine's foreign agent. He was an advocate for America's professed values. I look forward to his vindication.

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