February 13, 2020
Outlines eight pillars for Congress to reassert its oversight role, increase transparency, and provide enforcement mechanisms to hold the executive branch accountable. Announces a Marie Yovanovitch Act to improve protections and resources for whistleblowers and diplomats, and measures to bolster the U.S. commitment to Ukraine.
WASHINGTON – U.S. Senator Bob Menendez (D-N.J.), Ranking Member or the Senate Foreign Relations Committee, today delivered keynote remarks laying out a comprehensive series of reform proposals in the wake of President Trump’s impeachment and his conduct regarding Ukraine. At a Brookings Institution event titled Transparency and Governance in U.S. Foreign Policy, Menendez examined solutions for the President’s commandeering of foreign policy for his own benefit, unprecedented stonewalling of Congress, and ongoing attacks against diplomats and public servants.
“The Ukraine scandal must serve as a case study to inform how Congress can better serve as a check not only on this President but any future president who believes they are above the law,” remarked Senator Menendez. “But even if this President has yet to learn his lesson, I hope Congress has. We have learned we must bolster our oversight tools and curb the vulnerabilities exploited by this President … we have learned we cannot rely on norms to perform our oversight role, because all it takes is one president to shred them. Simply put, we’ve learned it is time for Congress to strengthen its hand. That is why today, I am calling for a package of new reforms to guard our Republic against future abuses of power.”
Senator Menendez announced he will introduce a series of proposals to respond to the abuses of power and breaking of norms that came to light during the Ukraine scandal. Among those will be the Marie Yovanovitch Act, legislation that ensures the U.S. government supports and protects career officials and diplomats; additional mechanisms to ensure that Congress is not kept in the dark about foreign military assistance it appropriates; and new requirements to limit the role of private citizens to engage in foreign policy.
Menendez also laid out a vision to reaffirm the U.S. commitment to Ukraine, a key ally on the front lines of fighting Kremlin aggression. Building on his prior successful efforts to pass mandatory sanctions on Russia for its unjustified aggression, the Senator argued that Congress must immediately send a unified, bipartisan message that Ukraine will remain a top priority through increased military and development assistance. “We stand with Ukraine against Russian aggression because it is in our national interest to do so. It is a defense of our democratic values and everything that we have fought for since the end of World War II,” said Menendez.
In warning about the sense of urgency for enacting his proposed reforms, Menendez noted: “Before we find ourselves talking about the next Ukraine scandal, before we are bemoaning yet another set of inexcusable actions, I suggest we do something now.”
Senator Menendez’s post-impeachment agenda includes eight key pillars:
1. Ban Foreign Solicitation: Make it against the law for any U.S. government official to solicit foreign action for personal or political benefit and require anyone aware of such an attempt to report it to Congress, with consequences for failing to comply.
2. Strengthen Congress’s Hand: Impose new penalties for the executive branch’s failure to comply with congressional requests and expedite judicial review for resolving congressional-executive disputes.
3. Increase Protections for Diplomats & Public Servants: Introduce the Marie Yovanovitch Act to better protect diplomats and career public servants in the face of an administration that fails to and openly attacks them.
4. Better Transparency: Require agencies to tell Congress if foreign assistance is not spent as directed by Congress, within clear timeframes and with clear consequences for failing to do so.
5. Reduce Potential for Conflicts by Private Actors: Set up new guardrails to ensure that U.S. foreign policy occurs via official channels, not private ones.
6. Improve Whistleblower Protections: Strengthen protections and make whistleblower protection training mandatory for all State Department employees.
7. Protect Public Servants: Root out corrosive rhetoric used to disparage non-partisan public servants, who serve our country and the Constitution, not just any one president.
8. Strengthen U.S. Commitment to Ukraine: Repair our relationship with Ukraine and protect it from being used as a political football.
A copy of the Senators full remarks can be found below:
“Thank you, Suzanne, very much, for that kind introduction. I hope that that slip actually becomes a reality again at some point, in terms of chairing the committee, but I appreciate your warm welcome.
Let me apologize to everyone, but when we talk about checks and balances and the systems of checks and balances in our government—which is a focus of what I’m going to speak about today—none can be more important than for the Congress to ultimately have the exclusive power to declare war. And the war powers resolution that we are debating, which is specific to Iran, is critical to that check and balance, and those are the votes that we were taking until just a little while ago. And we will have a final vote that I will have to go back for, so we’ll give as much time as we can before that vote is called.
It’s an honor to be here at Brookings taking part in the Batkin International Leaders Forum, which already has hosted so many distinguished voices in global affairs.
We come together this afternoon at a truly historic and in my view deeply troubling moment for our nation. I stand before you just one week after the conclusion of an impeachment trial in the Senate that left many of us, myself included, wondering where exactly we go from here.
It was a trial that laid out, in sobering detail, how President Trump subverted our national security interests and solicited interference from a foreign power for his own personal political benefit. A trial that exposed just how deep of a divide there is between a party seeking to hold a president accountable and a party willing to look the other way no matter how egregious the conduct.
A trial in which the Senate majority not only excused the President’s misconduct on Ukraine, but in doing so, sent a dangerous message to future Presidents that they too can misuse congressionally-appropriated security assistance in order to extract political favors from a foreign power. They too can intimidate, threaten, and degrade distinguished diplomats, decorated military officers, and career public servants. And they too can engage in the wholesale obstruction of a co-equal branch of government by blocking access to documents, withholding witnesses, and refusing to cooperate with Congress’s constitutional responsibility to conduct oversight, in general, and the power to impeach.
Some say this moment is not that different from past events in our history. But I submit that the challenges we face are deeper than ever before—and shake the very foundation of our constitutional system of checks and balances.
Our Framers designed our three co-equal branches of government—sometimes to work with each other, sometimes to work in conflict with each other—but always to be a check on each other, and in doing so, to protect the American people from tyranny.
They also sought to protect the Republic from an overly powerful executive. Indeed, the Framers gave Congress the power to impeach and remove because they feared there could come a day when a president would abuse their Article II powers, disregard a co-equal branch of government, and trample our Constitution.
That is why the day the Senate failed to remove this President—failed to even hold a legitimate trial—I called it a dark day for our constitutional order. But as is often said, it is always darkest before dawn.
This moment calls for us to take stock and assess the health of our Republic, and the blemishes in our constitutional order. If we do nothing, the continued erosion of our checks and balances may very well destroy the delicate balance of powers designed by our Founders, which has made our nation so exceptional.
So the question I put before you today is this: How do we restore Congress as a co-equal branch of government? How do we guard our nation against any president who believes his powers have no bound?
And what can we do to prevent the kind of abuses of power carried out during this President’s pressure campaign on Ukraine from ever happening again?
A distinguished thirty-year career diplomat smeared and attacked without justification. Career officials sidelined and shut out. Congressionally-appropriated funds held up for political gain. Unofficial foreign policy channels proliferated. Congressional oversight utterly disregarded. That’s the experience we just went through.
Indeed, even before the Ukraine scandal, this Administration repeatedly disregarded the role of Congress. Before it defied the House impeachment subpoenas, it withheld documents and information from Congress necessary for everyday oversight. Before it ordered witnesses not to testify in the impeachment inquiry, it already prevented Administration officials from testifying on routine policy. And before the President cast a legitimate congressional investigation as a “hoax,” he referred to Congressional oversight as “presidential harassment” and “all-out war.” In every congressional request for information, this administration sees—in its words—“all-out war.”
I’ve seen it firsthand. As the Ranking Democrat on the Senate Foreign Relations Committee charged with overseeing this President’s foreign policy, I’ve been stunned by this Administration’s utter contempt for the other branches and the rule of law. Now, I’ve been doing foreign policy for 28 years, between the House and the Senate. There’s always a tension between the executive and legislative branches. But the absolute, utter contempt that this administration has in providing witnesses and documents is beyond the pale.
They have refused to comply with statutes and provided Congress with no legal basis for doing so. They’ve entered into international agreements without informing Congress of key details. They’ve withheld information on nominees that should disqualify anyone from serving in government. They’ve circumvented long-observed processes on arms sales to foreign nations. And the list goes on.
What we’re left with is an Administration not only stretching executive power to its maximum, but actively reducing the role of Congress in foreign policy to its bare minimum.
Our democracy deserves better. I cannot make decisions about war and peace—which is about life and death—unless I have the information to understand what is before us. I cannot decide what is the right policy as it relates to Iran and its nuclear ambitions, or North Korea and its nuclear ambitions. I can’t make decisions on how we deal with the Middle East. I can’t make decisions on the Russian challenge to us, even as we speak, to these elections that are taking place, unless I have the information necessary. That means documents and witnesses, and then, making a judgement.
The Ukraine scandal must serve as a case study to inform how Congress can better serve as a check not only on this President but any future president who believes they are above the law.
My friends, those who say President Trump has learned his lesson and will have a course correction are deluding themselves. Let’s not forget: the President has already made clear he is willing to seek foreign interference in our elections. He has shown no contrition for his actions. He maintains his conduct was “perfect” and has the right to defy Congress.
But even if this President has yet to learn his lesson, I hope Congress has. We’ve learned we must bolster our oversight tools and curb the vulnerabilities exploited by this President—vulnerabilities that are now there for all of us to understand exist, because ultimately those blemishes were not known until we had a president willing to so defy the traditional order. We’ve learned we cannot rely on norms to perform our oversight role, because all it takes is one president to shred them. Simply put, we’ve learned it is time for Congress to strengthen its hand.
That is why today, I am calling for a package of new reforms to guard our Republic against future abuses of power.
First, we can’t expect mid-level career professionals to be the only ones to shoulder the burden of disclosing serious national security concerns.
That’s why we must make it against the law for any U.S. government official to solicit foreign action for personal or political benefit, and to require anyone who becomes aware of such an attempt to report it to Congress. And we must impose consequences for failing to do so.
Second, we need greater transparency. When Congress sends money to allies in the name of our national security, we cannot be kept in the dark. It was only through unofficial channels that Congress learned that the funding for Ukraine was being withheld. Our tools for tracking funding failed. The threat of violating the Impoundment Control Act was simply not enough. And if not for the whistleblower, we might have never learned about the President’s corrupt efforts in the first place.
That is why I am calling for new legislation requiring agencies to inform Congress if foreign assistance is not obligated as directed by Congress, within clear timeframes and, again, with clear consequences for failing to do so.
Third, we cannot conduct adequate oversight over an executive branch that only responds to our inquiries when they have to, or when it is in their interest. So we must make it in their interest all of the time.
We must impose penalties for failing to comply with congressional requests. Agency heads should face financial penalties if they do not provide written justification to Congress for failing to respond to an oversight request in a timely manner. Reporting requirements need teeth.
We must also make judicial review a feasible option for resolving congressional-executive disputes. The courts shouldn’t be used as a shield to wait out Congress until the next administration. That’s why we need to create an expedited review process for Congressional subpoenas and for agency heads who refuse to comply with them.
Currently, outside groups have a better chance of getting documents through FOIA requests than members of Congress with subpoena power. That is pretty amazing. I can more likely get an answer through a FOIA request than I can as a member of Congress with jurisdiction over a specific department, and with subpoena power. That is absurd.
Let me be clear: these are tools not just for Democratic Congresses or Republican Congresses. They aren’t intended to, nor will they, serve any one party. Rather, they are the new guardrails we need to restore our system of checks and balances and the role of Congress as a branch that is truly co-equal to the executive.
Fourth, we need new guardrails to ensure that U.S. foreign policy occurs via official channels, through official employees of the U.S. government who speak on our behalf—and who have sworn an oath to uphold and defend the Constitution.
Yes, there are exceptions for individuals to work for the government without fully joining it. But it is time to rein in those exceptions.
We must limit the opportunities for future “Rudy Giulianis” to lurk in the shadows, wreaking havoc on our foreign policy. So while informal private representatives and Special Government Employees may have their place, we need a thorough and full vetting of their private interests.
Secretary of State Mike Pompeo famously rolled his eyes to a fellow diplomat and said Rudy was someone that “had to be dealt with.” That should not be the rule.
It is astonishing that, nearly a year after we first learned that Rudy Giuliani was “up to something” in Ukraine, we still don’t know who he’s representing or who is paying him. And it’s not just Ukraine. He has private clients in Venezuela, Romania, Turkey, and other countries—all while doing the President’s political bidding.
When private citizens engage in U.S. foreign policy, we must require they identify all their clients, who is paying them, and exactly how will they mitigate conflicts of interest.
Fifth, Congress must pass a Marie Yovanovitch Act to better protect diplomats and career public servants in the face of an administration that fails to defend them and even openly attacks them. It is time the State Department tell us before it removes a career diplomat why it is doing so.
I know some will be thinking: Yes, ambassadors and other high-ranking officials serve at the pleasure of the President. That’s not a dispute. But never before have we seen a President authorize an off-the-books smear campaign against a distinguished ambassador. Never before have we heard the President’s voice tell a group of associates to quote-unquote “take her out.”
As I’ve said before, norms are nice enough so long as everyone respects them. This President does not. So when extraordinary public servants like Marie Yovanovitch are dismissed before their tenure is complete, Congress must know why.
This also should extend to the second-in-command at embassies, the deputy chiefs of mission. Too many of them have been unjustifiably landing on the chopping block. Choosing who serves on your team is one thing. Kicking someone out because they are not loyal to your personal political agenda is another. And because this President needs reminding: our diplomats are loyal to our Constitution and the rule of law first.
We must also do more to protect our diplomats from falling victim to foreign disinformation. While Ambassador Yovanovitch may have left the State Department—which I believe is a great loss for our nation, I presided over two of her confirmation hearings—our obligation to her does not end. I will not rest until we have an accounting of everything the State Department knew about foreign disinformation against her, and why its leadership failed to protect her. At a minimum, we need stricter vetting of information from unofficial channels, particularly when it pertains to our diplomats.
The Ukraine scandal also reminded us that whistleblower protections must be adapted to the challenges they face. Sadly, many of the brave individuals who testified before Congress faced legal costs, personal threats, and assaults on their reputation they never imagined.
That’s why we need to amend whistleblower protections to cover additional expenses. We must make sure that blowing the whistle to protect U.S. national security interests is unquestionably covered. And whistleblower protection training should be mandatory for all State Department employees.
I can’t tell you how many interactions my staff has had with employees who aren’t sure of what their rights are, or what they can or cannot tell Congress. At a time when this Administration is trying to instill fear into any potential whistleblower, we must send an unequivocal message that we will stand with them and protect them.
To that end, we must make agencies like the State Department certify to Congress that suspected whistleblowers have not been subjected to retaliation, and tie those certifications to funding to make them more enforceable.
And, while there may be no legislative fix, we must call the corrosive rhetoric used to disparage career public servants for what it is. We must call it out. Using words like “holdover” and “disloyal” to describe non-partisan employees who devote themselves to serving our country has no place in our democratic system.
From day one, this Administration has systematically sidelined career officials. Again and again, we’ve learned that they’ve been denied readouts. Excluded from meetings. Kept in the dark.
Not long after the President’s phone call with President Zelenskyy, for example, the State Department clamped down on who would access senior-level communications. That’s unacceptable. These individuals form the backbone of our government institutions. It is their job to provide institutional knowledge and continuity between Administrations without regard for fleeting partisan gains. So Congress must do more to ensure that senior career experts are engaged and empowered, not silenced and sidelined.
And last, we need to repair our relationship with Ukraine and protect it from being used as a political football anymore. That means strengthening our commitment to a nation on the frontlines of Russian aggression in all of its forms.
We stand with Ukraine against Russian aggression because it is in our national interest to do so. It is a defense of our democratic values and everything that we have fought for since the end of World War II. We stand with Ukraine because our cooperation provides useful insight into Russia’s tactics both on the battlefield and in cyberspace. This is invaluable to our national security. As Ambassador Bill Taylor recently said, we support the Ukrainians because they are defending not just themselves—because they are also defending us.
In playing political games with our Ukraine security assistance, the President once again continued a disturbing pattern of doing Putin’s dirty work: spouting Kremlin talking points about Ukrainian interference in the 2016 presidential election, disregarding the advice and conclusions of our own U.S. intelligence community, and so on.
But the President’s pressure campaign on Ukraine did far more than strengthen Russia’s hand in that conflict. It also sent a terrible signal to the rest of the world that our national security is beholden to political vendettas at home, and that our support is somehow for sale. This undercuts our ability to build alliances abroad and seek a brighter, more stable and prosperous future for the American people at home.
So among the reforms I will be introducing will be legislation to increase security assistance to Ukraine, increase support for training Ukrainian security forces, prioritize Ukraine in the excess defense article program, and propose that it receive Major Non-NATO Ally status.
As I mentioned earlier, these are elements of something that I built that became the Ukraine Freedom Support Act that I helped author. We must improve Congress’s ability to monitor funds at every point in the process. Never again can we allow the White House to use congressionally approved funding for political errands.
If you couldn’t tell already, I am a long-time, long and strong believer in congressional oversight. That is not new to me. In the previous administration, a Democratic administration—I am a Democrat—when I felt that congressional oversight was needed, whether about Iran or other issues, I pursued it with the Obama administration. I was as vigorous then as I am now. The difference is, we didn’t have then an administration that tested the scope, the breadth of executive power to the extent that it would undermine the very essence of the Constitution.
I also believe it’s especially important in foreign policy, where there is already greater opportunity for concealing information.
Consider just a few examples from this presidency: Reports of tearing up interpreter notes of his meetings with a foreign adversary; Using an unsecure personal cell phone to engage with foreign leaders; Prolific “irregular” diplomatic channels; and I could go on. But the point is clear. Before we find ourselves talking about the next Ukraine scandal, before we are bemoaning yet another set of inexcusable actions, I suggest we do something, and we do it now.
This President has demonstrated that unless required, he will not comply. Unless his Administration is required to tell the American people and the public, they will not. And unless there are guardrails in place to protect our Constitution, it will be trampled on. This is about far more than Donald Trump. This is about every president after Donald Trump. This is about protecting against future abuses of power that threaten the constitutional order set forth by our Framers.
I am always reminded—whenever I review the Constitution again—the Framers didn’t make Article I the President of the United States. They didn’t make Article I the judiciary and the Supreme Court. It made Article I the Congress of the United States, the representatives of the American people. That is the importance that the Founders gave to this part of our separate, co-equal branches of government.
If there is any comfort to be had in the aftermath of these events, it is that most Americans—and even my colleagues in the Senate who voted for acquittal—know that what President Trump did was wrong. They know that soliciting foreign interference in our election is wrong. That smearing ambassadors and career officials is wrong. That manipulating congressionally-appropriated funding for political gain is wrong. And they know this cannot be the new normal.
This impeachment trial may have exposed the depth of our divisions. And the Ukraine scandal may have exposed the worst of this President. But through all the lies and deception, through all the arguments and obstruction, we also got a glimpse of what is best of America.
We saw the best of America in people like Marie Yovanovitch, who devoted her career to promoting our democratic values and advancing the national interest. We saw the best of America in military officers like Alexander Vindman, who risked everything to come forward and speak the truth to Congress even at great personal cost. We saw the best of America in my colleague Mitt Romney, who voted his conscience and showed us what it means to put patriotism above partisanship. And we saw the best of America in others like them, the courageous and selfless nonpartisan public servants like Bill Taylor, Americans who cared enough about the fight against Russian aggression to stand up for Ukraine, even when the President of the United States would not.
We must honor their service and strive to be a nation worthy of their sacrifices. We must present an effort to prevent these gross abuses of power from forever damaging the constitutional order passed down to us by the Framers. We are not powerless. The solutions are right in front of us. And if we in the Congress choose to learn from what happened in Ukraine, I believe we can turn a time of great trial in our country to a time of great triumph.
As I said following the impeachment trial in the Senate, I love this nation too much to stand by and let our great Republic be trampled on. And that is why I am going to pursue these reforms now.
Juan Pachon (202) 224-4651
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