tv Key Capitol Hill Hearings CSPAN May 2, 2016 12:00pm-2:01pm EDT
you fit into these, and so we isl give you -- it irrational that way. we can never do it that way. because a good chunk of the southwest was once part of mexico. ,e have all of those families like my family, that never left. betweenconnections people here and the people from mexico. some of the immigration system has to account for that. -- be aso have economically rational as we can. we also have to be compassionate the families and descendents of those families that are still here as part of our country. i want to finish the way we began. we talked about us having a broken immigration system that has to be fixed. we spoke about the economic benefits of the immigrants here
and the catastrophe that would happen if suddenly they were not here. notre reminded now it is truly an economic issue, there are issues of values, how to create a stranger among us. it will not happen at all if we are not persistent and work together to make it happen. life is a very narrow bridge, but the important thing is not to be afraid. we have to walk on that narrow bridge together and work towards where we will have a humane and proper immigration both serves our economy and our other values. i would like to thank our speakers for a tremendous conversation. [applause] [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
>> we leave the program at this point. to hear from afghan interior minister ali jalali and other scholars as they discuss the political and security challenges for the afghanistan government. the middle east institute is hosting this. it is live on c-span. >> good afternoon, everybody. i am the director of programs thegovernment relations at middle east institute. i am pleased to welcome you to today's discussion under the securityitical and crises in afghanistan call in the future of the national unity government. turnoutratified by the and the media interest. thank you for being here. if you see empty seats to either the center,near
feel free to move in away from the aisles. we always have late arrivals and we always like to accommodate everyone. there are quite a few open to my right. this is an event in the middle east institute's louis r. hughes lecture series. to mr. hughes and mei's board of governors. -- you will hear about the sustainability and legitimacy of afghanistan's national unity government, an issue that has been in the news and has powerful implications for the future of u.s. and coalition military engagement. before i introduce our moderator, i want to urge you to website right after this event is over and register for a discussion is hostingat mei
with the conflict management program at johns hopkins. we was big about "arab spring." the analyst joining the professor include -- tomorrow, tuesday, may from 4:30 to 6:00 p.m. there is information on mei.edu. now it is my pleasure to ofroduce the moderator today's panel. dr. marvin weinbaum is the director of the pakistan studies. he is a distinguished scholar, whose experience includes fulbright research. he directed a program in south asian and middle eastern studies at the university of illinois for 15 years, has worked in the
department of state as an intelligence analyst, and is a -- author.der he saw the importance of u.s. interest in addressing our topic and has recruited a panel of remarkable and diverse expertise to do so. so he will introduce the panelists. we start the conversation with them. gentlemen, thank you again very much for coming in. marvin: thank you. see, we haveu can a good deal of media coverage today, so i ask you to turn off your cell phones. thank you. it is a pleasure that -- to see that we have interest. but why should we be surprised? because what is happening in afghanistan today leads so many of us to say "is this a period
of crisis?" been of us who have following afghanistan, we regularly say we are entering some kind of period of some decisive developments that will determine the future of the government and the state. but i think we would all agree that very recently, there have been a number of developments which seem, in this year, to have created circumstances which lead us to believe that somehow, we have reason to worry more about afghanistan, about its government, and issues of security. the economy. course, we want to address all of those today. i am sure we will have an opportunity. ar format is not going to be
series of speakers, but rather that i will pose a series of questions. we will therefore be encouraging among our panelists discussion. and we have a superb panel to do just that. to my right, scott smith, who most of you know for his time heading the afghanistan program at the u.s. institute of peace. u.n., now left us for the returned to the u.n., where he is involved in mediation efforts . very befitting his skills. to his right is omar samad, who is also well known here, as well as in afghanistan. he is recently returned from afghanistan after having been ambassador inate
belgium. he has chosen, however, to join us. here, omarpleased, has been ambassador to france, canada, and most recently has been a close advisor to dr. abdullah. to his right,an, is another familiar face -- they all are -- here in washington. with the south asia program at the wilson center. panels.rganized so many and as you know from his own moderation -- moderating of panels, how well he is able to pakistanfghanistan and and south asia in general. finally, ali jalali. past, abeen, in the
long past with afghanistan, which includes military service and was, really in the karzai -- ministeron, mr. of the interior but is currently a distinguished professor at the national defense university here in washington. player inery serious afghanistan. he is more than simply an observer. he is someone who participates actively in the affairs of afghanistan. i do not know that we could have aboutl, honestly, afghanistan today without having ali jalali join us. that, as an introduction, let me start. gentlemen, what
makes this year different? posed byow being coming events, previous events, that suggest that we ought to be paying greater attention then perhaps we have over the next few months? who would like to start us off? ali? prof. jalali: thank you. good to be here again. in any country, anyplace, you have to look at the context first. ittext, political concepts, in afghanistan have changed.
-- can you hear me now or should i project? there are a number of factors that shape the situation in afghanistan. first, the international forces left afghanistan at the end of 2015. that was the end of combat mission by international forces. second, afghanistan has to deal by its owncurity capacity and forces. which are still in transition. although the country has a force, army and police but it was developed as interdependent on international forces financially and in operation. that dependence is still there. that is why you have capability
in the national security forces of afghanistan. fore will be a need assistance from outside. third, the taliban and other insurgents and terrorists are or trying to exploit the situation of the departure of international forces from afghanistan. can do betterthey with the afghanistan national security forces. third is economy. afghanistan was dependent on international presence, to some extent. years ago, the service sector of was 50%.nistan economy by the departure of international forces and contractors and others, that market, the service market,
contracted. at the same time, it caused unemployment and also a deduction of state revenue. finally, in the region, some countries believe that with the torture of international forces, they can influence afghanistan to get a better deal -- with the departure of international forces, they can influence afghanistan to get a better deal. the factors that shaped the situation in afghanistan has global, regional, and domestic mentions. that is why afghanistan -- and domestic guy mentions -- d imensions. amb. samad: in order of age, if you want to look at it that way
-- thank you, marvin, for the invitation. jalali'shat minister assessment is correct. i want to look at it from another angle, which is today is shaped by what we have seen the last 15 years, especially by the annsition of 2014, which was extremely difficult and challenging transition on , political,vels security, and economic. there is a fourth level people do not talk about often. that is psychological, which we , botht manage well afghans and internationals. 2015 was expected to be the year of some level of positive change on all these different accounts.
it -- and 2015, to the dismay of many of us and to the surprise of some, it turned out to be a difficult year. for the afghan people, to begin with. the afghan forces, national security forces. for the newly formed national unity government in kabul. for the economy that schrock and the bubbles that first -- that shrunk and the bubbles that first -- burst after so many years of keeping the economy afloat. we realized it was artificial. finally, the regional context has been shifting. andope for some real change real strategic shift, especially with regards to pakistan.
for a while, we bought a new l, newment in kabu leadership might crack the not -- it did not. is so muchng there more that needs to be done and it is not that simple and easy. the expectation that developed over 2014 and before that -- and i am not going to dwell, at this stage, how mr. karzai handle this transition and what he left behind for the rest of us -- but this transition obviously has not resulted in what most of us expected. some of us saw some of the fault lines and tried our best to convey that and express that and tried to find ways to mend them and correct the course. some of us were too optimistic. some of us heightened expectations of the very
beginning for unnecessary reasons and are paying the political price for that today. all of these things are going on at the same time over a very short period of time, given a government's lifespan. today, we are talking about how fragile is this government, how fragile is afghanistan, what will happen next, should we talk about alternatives, should we talk about plan b's, c's, and so forth. this is, in a nutshell, how i see things shaping up. to i doh: omar is right not know that afghanistan, in 2016, is it more fragile than in 2015 or even 2014. relevantchanged -- and from where we sit in washington ofis we have come to the end
our wishful thinking. what we learned in 2014 and 2015 now convinces us that the dynamics in the national unity government significantly improve. the taliban are probably not going to comment to the negotiating table. august and probably will not be able to push the taliban to the negotiating table. the afghan security forces will not be the miracle we had hoped and to some degree convinced ourselves it would be. will probably not happen in 2016. real wayes us with no out of what was supposed to be the beginning of an emergence of a slightly abnormal constitutional situation that we are in now. we are looking at alternatives. we have run out of the optimistic scenarios we once had. that is what is sinking in and making 2016 a particularly challenging and different year,
even though the fundamentals may not change that much. i imagine we will discuss how things are going to be getting worse, etc., which is true. ,ut to start with context things are bad, but it is not all bad. there are plenty of people that did not expect the national unity government to get as far as it has now. obviously, it has. and for all the talk of a deepening taliban insurgency, the taliban has suffered setbacks, including the other day in kandahar. operation killed several dozen taliban pfizer's. you also have often special forces that have been distinguishing themselves on the battlefield. i would highlight three changes that are making existing challenges more difficult. urgency --is a new
sense of urgency pervading because in afghanistan of the national university -- national unity government's agreement, which stipulated certain things happen by a certain time, specifically september of this year. one could argue there is a clock is ticking dynamic that could amplify the fractures -- fra politicalure of the environment in afghanistan. secondly, there have been taller than victories, -- taliban of victories, like the takeover of kanduz. third, you have quite a few afghans leading the country, including from the middle class. these are things that happened in the past and are happening again today. it is difficult to start to deal with the deeper challenges afghanistan faces when a number of your best and brightest are headed for the exit. marvin: let's look specifically
at the national unity government . it was formed a year and a half ago and has another three and half years term in office. how have these developments we have been talking about specifically affected the possibilities of survival of this government? ashraf ghani,s, who had a popular beginning, has eroded. we hear there is a lack of confidence now, which has grown. so in answering this, i wonder if we could address what it is he could have done differently and what can he now do to assure the survival of this government another three and half years? having spent almost
a year and a half in that unity i am unfortunately not at liberty to say much. but to give you some perspective, i can say that i think this was meant to be -- i do not want to go into the why it has value -- everyone has their own theories in how this came about. we leave that to history to judge. but once it came about, it was meant to follow a certain recipe guidelines,n set of and it has not. for those of us who have been inside the system, we know, by and what are the motivations. some of it is very distressing. some of it has to do with eddie
-- petty politics and power struggles, and some of it have to do with real and substantive issues that have created a sense united government and not a unity government. be as supposed to political marriage, of sorts -- in the modern sense. is playing a very traditional role in this marriage. traditional in the afghan-eastern context. trying to dominate, trying to push, trying to impose. trying to --e again in the eastern sense -- accommodate, be flexible to the extent possible, given its own political limitations.
you have to realize that this is between a marriage parties or factions or individuals that fought in the elections. they are made up of a conglomerate, each one. so this is very difficult to handle. we did try to bring everyone under the tent, with very few upset -- with very few exceptions. -- is going to be a sort the only alternative. the tragic part is there was no other alternative but to create such a unity government, with the two top vote getters. the individuals who legitimately had received the largest amount of vote in the country. whether one was more or less than the other is another issue. had it, andnce we once it was ratified, and the afghan people accepted it, the
international community put a stamp of approval on it, i think it was the mistake of letting this government sort of find its own way, thinking that they know best. that they know all of the problems and have all of the solutions. especially the president has always given this impression that he knows all of the problems and has all of the solutions. that he knows the answers to all of the questions. bite them,ack to especially the president. people had this image that had been promoted, this image that had been created over the years -- someone mentioned something interesting. they asked me if he is really a modernist? tribal? still
post-triabl or still tribal? it is an interesting question, for an afghan. i think it is a mix of both. when he is sincere, he is modern and post-tribal. when he goes back, he is tribal but to tribal. even the majority of afghans cannot connect with him. we could not find the balance that was needed. the equilibrium needed in order to make this a more functioning government. not everything about the national unity government is that. there was no other option at the time. i am of the view that we should not be looking for a revolutionary alternative. something that would further destabilize afghanistan and put us in a very vocal situation, politically speaking. to trys still time
everything possible, try all means possible, to impress on the leadership of this government -- and i think john kerry tried to do this a couple days ago -- and impress on the afghan political elite and the tohan people that we need stay the course, but we need to correct the course. we need to learn some hard lessons from the past year and a half, both in terms of governance, in terms of relations with the international community, in terms of how we connect with the afghan people and play politics. one of the biggest problems is that we have amateur politicians. we do not have professional politicians, who know how to even play politics, in afghanistan. the best example we had was hamid karzai.
because he would walk into a room and kelly -- and tell you everything you want to hear, but he would not agree with it. this is a good politician, we think -- it is not. hamid karzai was a failure. but we need to learn the lessons from the past 15 years, especially the last year and a half. mr. smith: there is a much more significant and organize opposition to the national unity government then to the government of hamid karzai, which was a government of singular powers run by one person. the other thing is what is our responsibility for this government? omar is correct that after a ruising election,
a transition that was not well handled and an economy that was tanking, we set the government up with its internal frictions and said you guys take care of this. when the iraq war was being debated in 2003, i think it was goin powell who said if we in and break it, you own it. with governments, it is different. if you fix it, you own it. what we hearis repeated visits to try to get these guys to work together. i asked her what can be done, a lot of us have been advocating for a long time that the two leaders of this government, if they are not able to work together, at least project that they are working together. but for a variety of reasons, this has not happened.
and as i said, i do not think it is likely to happen. i think there are some things regarding strategic indications that have been achieved. washington arein pointing this out, not the government itself. leading the afghan people know what we have done, what we are attempting to do, and how you can see we are getting there. a lot of the frustration with this government is the sense that it does not understand the sense of crisis that afghans themselves feel. and i does not respond to them. that is what helps power, this opposition made in large hard by politicians that are not so good. they just happen to be in the position. picking up on the good point scott makes on the government not acknowledging the
crisis it makes, i will take the question as to what the president can do to strengthen his position. in some ways, there are not that many options. there are two game issues. one is how the president can strengthen his position more broadly in the eyes of afghans, the international community, and so forth. and secondly, how he can strengthen his position in his own government. in the broader context, there needs to be effort to articulate a clear plan of action for the coming months. example, how it intends to answer these questions about time frames for local elections, etc.. he needs to try to reduce these high levels of a -- of uncertainty, which breeds concern and elevates volatility. in the more narrow context, that
is more difficult. perhaps one suggestion is for him to make -- offer a clear assurance to abdulla abdulla is intact.sition that his position is still in tact. it is something to be said for clearing the air. it may be asking too much, but it is a start. prof. jalali: many years ago -- 2004, i believe -- we faced a difficult situation. a respected international said something we thought was against afghan culture. that it would go
against the constitution. -- what we have today has its own problem in the inception. to have -- in the history of afghanistan, in many cases, there was a tendency to solve difficult problems by tactical solutions. i was one of many others who -- votes 100 times, and eventually announces one winner. the winner that will be accepted by --
in afghanistan, coalitions are fine. the coalitions are successful only if they can balance two things. governn unity and effectively. if you maintain unity at the , at the cost, of effectiveness, you fail. if you want to be effective but it undermines unity, again. what we have today are two leaders. one is the president. the other is second among equals. the president gets the power from the constitution. delivers some of the qualities to this second of equals. the second of equals does not have a strong standing.
he uses political clout. it turns into opposition within the government. that is the major problem from day one. i think it was both of the sacrifices,a lot of made a lot of effort for this unity government. however, they are not alone. people around them that helps to bring them to the elections. the election vote was not based on to make a difference. it was based to win the elections. areoth sides actually dependent on borrowed constituencies. these borrowed consistent twos have thetuencies
demands, which slows down everything. all decisions in afghanistan, and a country facing security, economic, all -- political problems. in that case, you have that kind of government. does not mean it will not work. many situations that actually enable off guns to survive. afghat enable off guns -- hans to survive. thehows the resilience of afghans. i am not saying the government will fail. it will not fail. but the more they put effort to make it one government and to all of the access they have into one government, -- in other salad instead of making a
pot of alla melting elements. today, it is a salad bowl. which ministers belong to this guy and which belong to that guy. which ministries reporting to that guy in which reports to that guy? it is not one government unless you make it one government. it a melting pot. it is hard, but that is the way to make that government effective and successful. amb. samad: just to add a bit more, if we are going to take the route of the constitution itself and what is constitutional and what is not, what constitutes widget is the best legitimacy -- legitimacy on and so forth, we
have to be careful. we can open a can of worms that years, seen the past two especially 2014. especially in how the election was handled. especially in how much fraud was orchestrated. that is also constitutional or anti-constitutional. if we want to talk political opposition within the government , knowing there is a lot outside the government, we have to look exactly what happens on a daily basis. i told you earlier i cannot get into that, but i will tell you there are probably individuals who act as political opposition within the government. but the motivation and aspiration and wish of the -- and i ams not
talking on the ebola -- on the has been top side work with the president within the confines of the political agreement signed in december of 2014. it is a political agreement that is being trampled on a daily basis and is being ignored, that they all signed on to. than of the 100 high officials, from deputy ministers to ambassadors to the mayor of to the head of the institutional reform commission, and so on and so forth -- high-level positions that are awaiting final approval by the monthsnt for the past 16
, or 14 months, or 12 months. because someone, somewhere, does not want to see these individuals. to the president is asked interview every single person, in person. from the position of deputy governors to district police chiefs even further down. he wants to interview every person, in person. when you have this kind of ance style and you have hundreds of people waiting to be appointed the last year or more, obviously, you will face a crisis and there wasto blame one side or the other. job, thehas done its other side has to do its job as well. we can go on and on about the temples of what goes on on a daily basis within that
wasrnment, and who accommodating, who is not. ,ho was playing petty politics and who is taking a larger look at what is good or bad for afghanistan. every afghan's hope is that we would be driven by national fractionalot clan or or personal interest, as was the case under mr. karzai for so long. the hope is that we will broaden our minds in the scope of what we do and how we do it. bevin: in 2016, there would to their policies. one, election for a new parliament. and the holding of a loya jirga -- grand council -- which could do a number of things, but was expected, then, to take up the issue about whether there would
be a prime administer position created -- a prime minister position created, as was agreed to when the government was formed. abdullah isdr. designated as chief executive. what are the possibilities of these processes going ahead? what are some of the obstacles and what are some of the consequences, should they not be completed in this year? mr. kugelman: there is a quick answer and a longer answer. sorry. here is the quick answer. the idea of holding local elections within the next few months what appear to be nothing short of a miracle, for a variety of reasons. when there were presidential
elections, there was much more time to prepare for them. the taliban was not as strong as it is now. at this point, you are being asked to do something in a mere few months. -- i willirga issue refrain from getting into the legalese, but the crux of the the foundingt political agreement that form the national unity government especially says you need a loya jirga to happen in two years. but it does not spell out the consequences of not holding one in two years. and is silent on the issue of how long the national unity government is to last four. the agreement did not save the national unity government is no -- is null and void if there's no loya jirga. the issue of if the election or loya jirga does not occur, it
comes down to one of two possibilities. you can look at this from a business perspective and content when two parties enter a contract and refuse -- and do not achieve what the contract is set to achieve, the whole thing could become null and void. the other is an argument of omission. political agreement does not expertly say that the government must fold if there in twoa loya jirga years. in terms to what interpretation is proper, i am not in a position to say. marvin: that was the short version. mr. kugelman: yes. [laughter] prof. jalali: i think there are two issues. the inequality of who
wrote the constitution, and how the game changes. one -- r is election of afghanistan for five years. this government was elected for five years. there is no constitutional problem that this government continues for five years. the helm of this government got the votes from the people. order to respond to , theroblems that occurred fraud in the election and votes, in order to bring together these two people, who got the majority of votes, into a government, some kind of arrangement was made.
if a loya jirga could not be ,eld in september or next year or if the parliamentary election does not do well, that will be a problem. for the leadership to deal with. but the problems in the unity government is an effective this. the legitimacy of the government did not originate from the ballot box. it emanated from a deal that its legitimacy depends on its effectiveness. if it does not act effectively, then they have a problem. will be a loya jirga convened in september or not -- that is not the problem.
it does not undermine the term of this government of five years. the constitution gives of that. , elections, all of these things, if it helps the government function effectively, if that does not happen, then this is a problem. >> since i started working in the first afghans election in 2003, i have always been bothered by the unrealistic timetables we have always set for ourselves. in 2004 andwith 2005. but when i saw these september agreement -- and one day i hope history books will look at this -- i was appalled. whoever negotiated this put in place a series of processes that could not possibly be held within the time on -- timelines it was supposed to hold them,
which means it was doomed to begin with. i do not want anybody thought we would be having district, council elections this year land district-council boundaries have not been able to be drawn for 15 years. why we would get electronic ids issued to every afghan citizen when it has not been able to be done in the last decade. so what do we do? i agree there is a legal and political case that this government last five years. but why do we not take the three and a half years that remain and it up an agenda that allows to do reform that is not compressed, allows you to plan an election that can be feasible, and look at it as a chunk of three and half years instead of the next six months, the next six months, where we fail to achieve anything and find ourselves in may of 2019 with no preparations done,
because we did not take a longer view port. that is what i would do. and provide the assurances, that are legal -- a degree that says the powers of the chief executive are not transferable. let's get the country back on a more rational path towards election and return to constitutionality. obviously, we got sidetracked and railed by a lot of different events. and we did not stick to a timeline. there has been a concerted to play a delay tactic to prevent the election reform commission to be formed, first of all. for them to do their work properly. i was part of this on a daily basis, dealing with these issues. these issues could have been dealt with within the time
frames that were allotted to them. if there was political will. this goes back to political will. months was three enough or not or six months were enough or not. poses this critical question of how much do we want to rock the political boat in afghanistan and when do we want to rock it? look at what happened. first, the president's first an overture to pakistan. it was not to put the political structure back in place. it is to go to islam is that. islamasbad. by march 2015,d we would have peace talks. instead of peace talks, we had
bomber after bomber after bomber hitting afghanistan in all places. we had all those foreign fighters, who had been pushed inside afghanistan, throughout 2013 through 2015. had set up shop and were ready. there was a strategy to take over as much territory as they could in 2015. it was the afghan security forces and our international allies who put a stop to it. orlost a few places here there, but the strategy was to gain a foothold and take over a few provinces. that has not happened. so this distraction took place in 2015. political not in our will to implement the accord. even today. yesterday, i got a note from the next step is
the selection committee, which is supposed to look at who is supposed to be and under what conditions and what criteria are supposed to be used and one of the legal framework for the next election commission. independent election commission. very important. we saw with the former one day. -- one did. there is no political will to move forward, one side or the other. when easy to blame time you know that the game is different. game or not, from a technical perspective, i think it is not political will. this keep thinking that could happen in a few months, we will keep making the same delays . amb. samad: we had five years between 2009 and 2014 to fix the
elections. it are you who worked on here. what kind of election would you prepare for afghanistan? where did all of this money that on u.s. id spent electioneering and how to make this election look -- where did it go and what did it produce? that is how the afghans see it. it is easy to say we can blame time, but the afghans saw what happened. in the five years you how to fix the elections after the 2009 travesty. it was not fixed. marvin: let's switch gears slightly. the fact that, as is pointed out, we do not have a peace process in the works. it is posts as if
peace process. we are looking at some of the consequences of that. one of those seems to be that the bright days of cooperation between pakistan and afghanistan have -- seem far behind now. the president delivered an address to the parliament , thoughly -- recently he did not entirely close the not, indicated if he had closed it with the taliban, he probably had closed it with pakistan. relations with pakistan have certainly deteriorated. i want to ask the panel what are some of the implications of what could amount to a real breach in relations with pakistan? , is thereressing that anything the united states or the international community can be a alleviate what might serious development?
and for that matter, going back to the earlier discussions, is the role for the united states and the international community generally, stepping in on the political side as well, having done so so many times, do we have any cards left to play? all, jalali: first of peace talks are the means, not the goal. if it can help bring peace and stability in afghanistan, fine. but it is not the goal. afghanistan faces security and instability. there are two ways to respond. one is to do things, to use means to reduce the level of
threat to security. the other means is to better their capacity to respond to the threat. they go hand in hand. i think it will be very good to have peace talks and then reduce the level of threat. however, there are many complications to it. on the other hand, the longer the afghan state has survived, the u.s. -- the taliban will have to have their way. priority is to support the afghan state or to beg others to help us to bring some kind of political settlement, acceptable or not to the majority of the people. this is the problem. -- wentthe first thing one tohraf ghani
pakistan first because without relations with pakistan, it would be difficult to bring taliban to the negotiating table. pakistan, he had three demands from them. this undeclared war between afghanistan and pakistan that has been going on 15 years. besome indication should presented that this undeclared war is over. , -- once of this is done, then afghanistan can establish normal relations with pakistan. aer time, maybe we will have special relationship -- political, economic, security. that did not happen.
he had given pakistan until march of that year -- did not happen. two months later, pakistan brought another package. which was not acceptable. as long as this difference of is there between afghanistan and pakistan, it will be difficult to ask pakistan to help bring taliban to the negotiating table. so what is the other option? is the capacity of the government and the armed services to respond to the to convince time the taliban that they are losing, and they will come to the negotiating table.
the last two opportunities to and field conditions. one was in 2001, when the taliban were excluded. the two sides in the civil war. either one side feeds the other, or they make a peaceful agreement. neither happened. on one side, it was removed from power but not defeated. was 2003.opportunity when the taliban approach the government, different elements in the government, that they wanted -- neither the international community nor the afghans were ready to do that.
-- longer the less chance they have to, back - -comeback. the priority is to build the capacity in the government with the international community so that this will force the taliban to come to the table. is a broad one.ion michael? theael: when it comes to peace process, it comes down to the taliban. to taliban will sit down talk when it has an incentive and it does not have one right now. be beaten back significantly on the battle field and if it was held it were on the fence, they would have
reason to come to the point right now. the quadrilateral peace process is for all intents and purposes dead. but the idea of a peace process not dead altogether. it is certainly off the table for the foreseeable future. the issue of what role the united states could play is useful and i do not think that has been brought up yet. i am more optimistic about washington's's ability to within reconciliation afghanistan and in between afghanistan and pakistan. i always thought the idea was somewhat of a myth. with afghanistan, it is a bit of a different story. assistance, in a context where the u.s. support, it is significant.
as we discussed the u.s. help me to get afghanistan out of the election crisis a few years back, i mentioned as things get tricky down the road over the next few we can assume john kerry in his last few months in power will make this a fairly frequent destination. president obama i imagine that this way is in a legacy stage and i imagine he will not want to be remembered for failing to government from falling apart, he will not want to leave office knowing the afghan government he helped put together ended up falling into pieces. do not want to overstate the desirability of the u.s. to be getting involved in this type of thing. think they're certainly can
and should be a role for the u.s. and the broader international community to play. >> i think we have had a lot of lessons learned on the way on the taliban and pakistan's role on the geopolitics of the region, on the history behind this. 23 years old.e no war, inthis antiquated my opinion, did not start in 2001, but 1992. and it was not really, it was part civil war, a civil war because it was not like, ethnicities were all against each other and hiding each
other, afghanistan unfortunately has never experienced such a disaster. strong unity is a core within the afghan identity. from the beginning, it was obvious there are geostrategic and geopolitical objectives that .ave to be met once the soviets left and the communist government fell, the biggest and most powerful player left their uzbekistan, who had handled and managed for a decade of war, billions of dollars that have come through pakistan to fight the soviets. leverage.ned so much
this is as the sand and the moon in the sky. what you are seeing is the continuation of the policy in different shades. the shades changed after 2001 and took on a different image or exterior. extent.e 2014 to some do not think anyone in afghanistan thinks the core strategy behind pakistan's use of proxies to control at least our foreign policy is in any doubt. still in washington, i am aghast. thinkd be disappointed to that people in london still think pakistan has some other
.otivation let's call a spade a spade and let's deal with it in that solutionsot under that do not make sense. i'm not against -- as a diplomat, i am for talks and dialogue. but we have to be ready for that. we have to be ready to speak as a stakeholder and a party to any talks and negotiations. you have to have a strategy. where was the strategy? one, but it did not have the african backing. this is why it has not resulted in anything.
we need to do is regroup, and politically speaking, we need to reunite afghans around that idea, something workable and practical, in terms of relationships or issues with pakistan. in terms of defenses, we need to bolster our defenses and this is where the united visit others have had amazing role to play to makes sure our forces are protected by whatever is needed, whether air or land or , and that it is not just, you know, easy talk. inhas to be demonstrated this is why i think the next administration, has to look at it from a perspective of, what
have we learned what to do and what not to do. durable and real peace to afghanistan that has the backing and support of the afghan people. afghan taliban, which happens on almost a daily fall for thenot ethnic linkages and so on and so forth. have passed the test of time and have not amounted to anything. at one point, the use , as their spiritual leader, to make advances in afghanistan in the 1990's.
he had some recognition and was somewhat popular and people had a good memory. they said if they ever get a hold of him, they will hang him. they did the same thing in they are doing the same thing. brotherhoodof the or whatever people think they are doing or not doing. going forward, we need to have learned the lessons, in my opinion. i thought you were going to suggest building a wall. >> i will point out a quote. visionot have a shared of who can be a mediator and barney pointed out for us, it is mostly between afghans, and the
taliban and. maybe we can mediate that. -- the conflict is between them and us because it may demand is to get us out of there. the conflict is really with india and that is a strategic front where the weight of the resolution is. that is a brief way to point out part of why we have not been able to get this off the ground without any details, of the divisions within the taliban, the biggest issue they disagree on is whether to negotiate or not. to push them toward negotiation is to push toward fracture and i think that will not happen at this time. youin: let me ask you as are to be recognized, please keep the questions short, ages yourself briefly.
i will take write-down front. >> i am john dempsey with the state department, office of the representative of -- i am about to say what is not in us -- i am speaking in my own personal capacity. to look back at negotiations in 2014, i know scott, you mentioned how you were appalled at the terms in the political and there were things included in there at the time probably not achievable, but it is important to remember that the top priority at the time was to have a democratic transition from president karzai to a successful -- success or. what happened that summer did not give much confidence they
would be able to achieve the transition successfully anytime quickly. as time moved forward throughout the summer without any resolution of the crisis, there were fears that how many i would lift to manipulate the political chaos to your advantage and orehow remain in power cobble together some sort of government where his interest would be of paramount concern, we were able to get there i think successfully. other point is on the difference between the legal and constitutional questions we are facing. is not aical agreement constitution. as you have highlighted, a term for the president. in afghanistan, the reality is people are often getting bogged down in what is constitutional versus what is clinically practical. i think the latter is much more important to keep in mind.
i will take that as a comet rather than a question. flak for i would face that, and it i appreciate all the arguments that i think it is irresponsible not to raise this point. it is not an issue only related ofafghanistan but the idea trying to re-create a political order based on the rule of law, which you know will be violated right of the bat because it is unrealistic, to me, it is unproductive. please, short of it i know you would like to give a speech. there are other people in the audience here who i want to give an opportunity to. washe biggest mistake made the last -- i am the president of the national coalition, i have been involved for the last 14 years
with every single -- in afghanistan. the unfortunate ring is when they came to afghanistan, they private -- try to build up the image -- it cannot be built in anyone's image. a nation of tribes. the tribes have protected and preserved integrity and independence for centuries. invaded,soviet union they broke the structure and when the west came in, they totally disregarded afghanistan'structure, the foundation. you cannot build a house on imaginary walls. afghanistan, both of these have been totally disregarded. so long as we continue to disregarded, we will not have any piece. peace with the taliban, which one are you talking about?
saudi's? which are we talking about? show me elite are that could control all the taliban and -- there is no such thing. this is a pipe dream. why don't we sit down and face reality and the fact of what is going on in afghanistan? the people of afghanistan are saying, where is the west, why are we allowed to go to the united nations and file a larger complaint at the united nations national security? marvin: thank you for the valuable comment. over here. right back here. with his hand up, yes. >> doug brooke with the afghan american chamber of commerce. we have been focusing on the political here but you have the business side of afghanistan
which has to successfully function during the chaos. willing to do that if some basic aspects of security can be sorted out. around the public protection force and the roles of private security, the business is in turmoil itself and they're waiting on some sort of direction on this. is there a chance -- a chance this could be sorted out while politics come later? >> a week or so, the court would , a focus on the national defense security forces. capability and future. security does not happen in a vacuum.
national security forces are just one element in providing for the country. their political, economic, diplomatic, dimensions to it. in the past one year or one year and a half, they proved they could hold their own. although with a high rate. it means if the security forces and the capability gates are backed by international support, key forces will be able to guarantee -- that is the key. the more stability comes the country, i think you will then have more opportunities and encouragement for people to invest in afghanistan also
-- it all depends on the stability of afghanistan and the as to theents political effectiveness of the government. >> i would add an important is toin all of this effectively fight corruption as well and invite an environment where people feel somewhat not only secure from attacks but also from civil servants and , contractors, whoever they may be, can be involved in this business practices. one of the things this government could have done better and has done to some extent but not as much as they could have, is to fight corruption more effectively.
i am looking for a woman. right here. >> i have two questions for the panel. is about thetion peace talks coming from afghanistan. only if his >> is -- request is fulfilled. he wants his name moved from united nations. question is about the government, not the sum of isstitution of afghanistan, it for future elections or just
specifically for the residential period. thank you. >> quickly on the talks, i was in kabul last weekend asking people what this was about in the response i got was, one, it was a question of growing old and feeling that he wanted to restore his committee. two, it probably would not have theymuch influence because are not the main perpetrators. some people wanted to believe if a deal could be struck and the government, he would be a positive demonstration to the patent -- to the taliban that yes, you can make a deal. they said it would be announced in a week or so.
i do think they may put some andss on the government depending what the conditions are, it's sort of does seem to certain people as quite a good reward for having fought a long time against the government or let's see were the details are in the deal. classic if you look at the it comesf afghanistan, incrementally, not in one package. maybe we would be very optimistic to assume that one whole of these would sit down at a table and sign. some in afghanistan.
conditions, we should of they the decision of and when he integrates his people, it should be on the basis of the established rules afghanistan, not some kind of political damage. in afghanistan, all fade as long as the government has some kind of support from the outside. twice, national governments failed when there was no outside support. one was the 1920's. 1990's, united states disengaging from afghanistan. otherwise, governments were always able to defeat rebellions. this has some support from pakistan. thatrinciples show
pragmatic. pakistan isntioned not willing to bring towels and to the negotiating table, paxton does have some influence but they have no control over them. pakistan's own plate is full and paxton fully understands stability in afghanistan are interdependent. incentive to any see pakistan she stabilized here -- somebody looks asked, how are you doing any text, so far, so good. it does not change the reality. my question is, are the taliban
building ground, losing ground, are they marginalized, and can there be any kind of comment which is broadly based in terms of rule of law without incorporating the taliban in the system, negotiating power with them? thank you very much. >> at think if you look at the record, for the past 15 years afghan leaders have made every attempt to ask the taliban to come and join everything else -- everybody else. i do not recall a time when this has not been done. we missed some chances. i agree there were opportunities that were missed at the beginning when it probably would
have been the best time to do so. that wes a realization need to come to terms with this particular group that continues to fight. it has access to funding and all software and hardware outside of afghanistan. recruitment. i think at this moment, the taliban are probably portraying an image of strength. inherently, they are probably at one of the weakest points ever. that is my assessment. i believe not only are they politically somewhat in disarray, the leadership is not
united anymore. i think over the past few weeks, they had been facing some major assaults and major losses on the battlefield. it is not just what you and tester beyond the afghan taliban. elementses many other who are in one way or another linked to the taliban and have been for 22 years. seemimes, the linkages weak and sometimes, very strong, depending on the politics of the day. the problem is we need to fight all the different elements now under the name of the islamic state, other names, and people
all over.m most of them are people who had retreated back into the region of afghanistan after the taliban were overthrown. whether they are the al qaeda type or whether they are other arabs or other middle eastern, or whatever connection they had, and they had centuries in the tribal regions going back to the 1980's and 1990's. most of them find themselves back in afghanistan for some reason. this is the situation as i see it. as long as the afghan forces are able to not only contain the taliban but also put yousure on them to make lose some momentum, we would be closer to a peace deal.
the more you put pressure on them, the closer we will get to a peace deal. ok.in: we have to be concerned with the two sides being weak, which one fades first. this will have to be our last question. i will take a woman back here again. i always get criticized for this. >> i am glad i wore pink today instead of black or maybe i should past mike to the person next to me. my name is liz wilson. i work here in dupont circle and we're working on a higher education project in afghanistan now. with the departure of a lot of young, qualified, afghans, i wonder of what are some ways the government might have some strategies to keep young people in the country during this time of transition.
has beenization working for nearly a decade in higher education and a understand. they spent a lot of investment china to keep young people there. up,staff who i work with on it seems there is a big struggle. perspectives on the youth and education in afghanistan? >> you cannot build walls in afghanistan. they should have incentives. in the next four years, 4 hition more afghans will the job market, unless you provide incentives for jobs and also a future, i think it will asdifficult to prevent that you educate people. in the last 14 years, thousands
of afghans were educated inside the country and outside. the approaches to use these , yes, i think unemployment, declining economic situation, security, and ineffectiveness of the issuesent, these are that probably provide incentives for people to leave the country. otherwise, many people would happen -- t happy to have a job. provide his opportunities, you cannot prevent the exodus afghans educated like many other countries. i will apologize to the
panel because i do not know about you but i have a feeling we are just getting started. have -- theyuch we have to share with us and we are just skimming the surface here. i want you to join me in thanking this superb panel. thank you for coming. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016]
at two: 30 eastern. a form on human rights abuses in north karelia -- north korea. that is live here on c-span starting at 2:30 eastern. also coming up live at 4:00, a look at federal and management policies here it look at how resources are handled. that is 4:00 p.m. eastern. wrote to the white house coverage continues later today with two campaign rallies for you leading up to tomorrow's indiana primary. ted cruz is in indianapolis talking with voters. also, donald trump also in indiana campaigning in south bend. live coverage of that starting at 7:00 a.m. eastern. house minority leader nancy pelosi is leaving a congressional trip to new mexico during a housebreak and she tweeted out this picture and
says the delegation of new mexico kicks off the day discussing labor, lgbt, and human rights with civil society members. the supreme court heard the appeal of robert mcdonald's bribery committee just as they expressed concern that could give prosecutors to much power criminalizing actions politicians perform. government donald was convicted for fraud for accepting more than $100,000 for loans for an executive in exchange for government favors. on appeal. you can listen to the argument at c-span.org. >> your argument this morning, mcdonnell versus united states. -- chief justice roberts: we'll hear argument this morning in case 15474, mcdonnell v. united states. mr. francisco?
mr. francisco: mr. chief justice, and may it please the court, the government argues that in quid pro quo bribery, "official action" encompasses anything within the range of official duties. in order to reach that conclusion, it asks that you disregard a 90 decision of this court. -- 9-0 decision of this court. the government is wrong. in order to engage in "official action," an official must either make a government decision or urge someone else to do so. the line is between access to decision makers on the one hand and trying to influence those decisions on the other. justice kennedy: and that's the
sun-diamond case, the 90 case that you refer to. mr. francisco: yes, your honor, the sun-diamond case, the 90 case. -- 9-0. and i think what sun-diamond confirms is that when an official simply refers someone to another official, an independent decision maker for an objective decision, he hasn't crossed that line into prohibited "official action." justice kennedy: i take it all parties concede that the act of the university official to undertake or not to undertake a research study would be an "official action." mr. francisco: yes, your honor. and the question is, did the governor cross the line into influencing officials to undertake that action and was the jury properly instructed? justice kennedy: can you tell me the posture of the case with reference to under virginia law, the government the governor's authority or lack of authority to tell the university, you will engage in this research or you will not engage? mr. francisco: sure, your honor, he -- justice kennedy: what is the state of the law, and do the parties agree on this point? mr. francisco: your honor, i think that the parties agree that the governor at least had a bully pulpit authority, but he had very little authority to actually direct any university researcher to do anything. and here i think one of the critical there are two critical questions -- one, was the jury told that it even had to find that he tried to do that and here it wasn't, and, two, did he in fact do that. and we would assert that he clearly didn't. justice ginsburg: would it have made a difference if the medical faculties had agreed to the testing? mr. francisco: your honor, if they had agreed to the testing, i still don't think it would have made a difference in terms
of whether governor mcdonnell tried to influence their decision on that, because he didn't. and it still wouldn't have made a difference on the jury instructions because the jury still wasn't instructed that it had to find that governor mcdonnell tried to influence a particular governmental decision, because it wasn't so instructed. justice kagan: mr. francisco, could i ask the line you're drawing between exercising influence and providing access, just to sort of test that with a hypothetical, suppose that somebody knew that there was a contractor who was going to award a very large contract to one of two or three firms that the that he was meeting with. and a company paid to make sure that they were on the meet list, to be one of those two or three firms, in other words, bribed -- mr. francisco: sure. justice kagan: an official in order to become one of those two or three firms from which that was the pool from which -- mr. francisco: right. justice kagan: this
billion-dollar contract would emerge, would that be sufficient? mr. francisco: your honor, i think that probably would be "official action" because there the only way you can even get a decision in your favor is by being one of three people on that list. so being on that list is a prerequisite to getting a decision. being denied on that list is a denial of the decision, and that's an official governmental action. here the jury wasn't instructed on any of this. they didn't have to find that governor mcdonnell tried to influence anything. indeed, it would have been required to convict under these instructions if governor mcdonnell had called up a staff
member and said, i'd like to you to meet with this fellow, johnnie williams. i don't really trust him. his product is a little hinky, but you're the expert. so meet with the guy and exercise your complete and unfettered judgment. justice kagan: can i -- justice alito: let me let me just change the hypothetical a little bit. suppose that a governor is going to make a eventually going to make a decision that will help either a or b and hurt either a or b, and the governor says, you know, i'm going to have a preliminary discussion about this with members of my staff. we're not going to come to any decision, but we're going to talk about it. and whichever of you pays the most money will be able to sit in on this staff meeting. what about that? mr. francisco: sure. well, your honor, i think i'd want to know, are there facts suggesting that it really isn't just a payment to sit in on the staff meeting? it's a payment to try to influence the meeting? justice alito: just a payment to sit in. mr. francisco: to sit on the i think it would violate a whole lot of other laws, but i don't think, unless there was any kind of indicia that you were trying to influence the outcome, you would cross that line into prohibited "official action" corruption. after all, these laws are not meant to be comprehensive codes of ethical conduct as this court said in sun-diamond. they're meant to target the worst form of ethical misconduct, the corruption of official decision making. justice alito: what if it's not just sitting in? maybe i wasn't i should sharpen this. supposed the party is allowed to speak and present its point of view. mr. francisco: your honor,
again, the more facts that you put on to suggest that it is more of an attempt to influence the decision, it's not just a meeting. i think the more likely you are to get to that "official act" -- justice sotomayor: so tell me, what do we do with the evidence in the case that the university individuals who were assessing whether or not to do these studies themselves felt pressured? there is both testimony and documents in which the pros and cons of accepting these studies was discussed. mr. francisco: right. justice sotomayor: and in the pro and con, it was, the governor really wants us to do this. mr. francisco: i -- justice sotomayor: the governor is pressuring us to do this. we just don't think it's a good idea. they were honorable people, obviously. but the point is, what do we do with the fact that they perceived that he was trying to influence them?
mr. francisco: i have two responses, your honor, a legal one and a factual one. legally, you still need to instruct the jury that it had to find that governor mcdonnell tried to actually influence a government decision. and here it wasn't instructed, so they could have completely agreed -- justice sotomayor: but why? isn't this -- i thought that this crime was taking money knowing that it was being paid to influence an "official act." so aren't all of these examples of "official acts" whether they are or they aren't irrelevant? the question is, what was his intent at the moment he took the money? and why couldn't -- mr. francisco: yeah. justice sotomayor: a jury infer at that moment that he took it
with the intent to commit an "official act" the way mr. williams wanted it committed? mr. francisco: so again, your honor, two responses. even assuming that the jury could have inferred it, you still need to tell them what an "official act" is, that an "official act" is an attempt to influence a governmental decision. justice sotomayor: well -- mr. francisco: understand -- justice sotomayor: to study these dietary supplements. mr. francisco: well, to actually, you know, conduct tobacco commission-funded state studies, but you still need to tell them what that is. but i'll get directly to your question. why is it that the actual "official acts" are relevant? and that's because both the district court and the courts of appeals' opinions made clear. here in this case, the corrupt agreement turned entirely upon, as the district court case said. it hinged upon whether the five specific acts were, in fact, "official acts," because in the absence of any direct evidence of a corrupt agreement, the government's argument was that you could infer one from the pattern of actual "official acts" on the one hand and the pattern of gifts and loans on the other and the temporal connection between the two. justice kennedy: and so is it your position at page 60 of the supplemental joint appendix the instructions aren't numbered, which makes it a little hard, but the judge instructs the jury that "official actions" are set forth in the five paragraphs of
the indictment. and is it your position that at least some of those are not "official acts"? mr. francisco: yes, your honor, and certainly the five things that were proved in this case are not "official acts." and likewise, i don't think any of those things, as they actually came into evidence, demonstrated "official acts" because in none of them did governor mcdonnell cross that line in trying to influence the outcome of any particular decision. and just as critically, the jury was never told it had to find that. so the jury in this case, justice sotomayor, could have completely agreed with our version of the facts. it could have agreed that as we argued very vigorously that the most that governor mcdonnell did here was refer johnnie -- justice sotomayor: the matter -- justice kennedy: well, this gets back somewhat to justice alito's hypothetical about arranging the meeting, and we and we can up the ante to see how close the meeting came to be an "official act." but i take it that at some point
your position is that a governmental that an "official act" must be the exercise of governmental power. is that your position? mr. francisco: well, your honor, it's either making a decision on an exercise of governmental power, trying to influence it, as in the birdsall case, where the defendants there were trying to persuade the grant of clemency. but if you're simply setting up a meeting so that somebody can appeal to the independent judgment of an independent decision maker and you're not trying to put your thumb on the scale of the outcome of that meeting, then that simple referral can't possibly be official action. after all, government officials refer friends and benefactors to staff members all the time in order to avoid taking official action. justice ginsburg: do you do you concede that there is sufficient evidence in this record -- let's say we accept your argument about the charge being insufficient.
but this could go back, and a jury could be asked: did the governor try to influence a decision on the part of the medical faculties? mr. francisco: your honor, we don't concede there was sufficient evidence. but regardless, we also argue that the jury was improperly instructed on this, which, justice sotomayor, goes to the point, i think, you were making. if the jury was improperly instructed, then you don't actually assume all of the evidence in favor of the government. the question then becomes, would a properly instructed juror have been required to convict? here, even if the jury completely agreed with us, and they very well may have, under these erroneous instructions they still would have been required to convict, because under these instructions, simply referring somebody to a meeting without trying to influence the outcome of that meeting constitutes official governmental action. justice roberts: well, suppose arranging a meeting could be official government action, if that were your
job. in other words, you're not just a secretary, but your job was to manage the governor's schedule. you decided who met with him, you decided when, and that that's your job. that's so anything that individual does, i suppose, would be an official act. mr. francisco: i think that's possible, chief justice. of course, in this case we don't have anything like that. we simply have referrals to meetings with other officials so that, at best, the alleged bribe payor here, jonnie williams, can try to persuade them to his cause. justice kagan: well, can i follow up on that? because what you just suggested, right, is that you could suppose that there were a scheduler for a governor or for the president
or whatever, and that scheduler was selling meetings. so you would think that's part of her job? and if i just understood you correctly, that falls within the statute? mr. francisco: no, your honor. i think that would be a very close case. that that would be a very close case, because at the end of the day, if you're not actually making a governmental decision or influencing the outcome of an actual governmental decision, i think you and chief justice, you might actually be violating a lot of other laws, including the separate provision in section 201 that prohibits you from undertaking any act in violation of your official duties in exchange for money, or u.s.c. 7353, which prohibits you from taking anything from anyone whose interests could be affected by the performance or nonperformance of your duties. but i think that the line has to be, and the only line that comes out through the cases is, you're actually either making a decision on because of the government, or you're urging someone else to do so. you're trying to pushing them in a certain direction. justice breyer: it seems to me when you say "urging" now, wait. see, i can go back to a lot of different commission, the brown commission, the senate s1, the language of the statute, and i read "official action," something quite similar to the statute here, "a decision, opinion, recommendation, judgment, vote, or other conduct" perhaps other similar conduct "involving an exercise of discretion." so in this case, the official action we're talking about is giving money to a group of people in the university to conduct a study.
now, the governor didn't do that. but a person who tries to influence an official action and is also in the government is also guilty. but wait. that's the indian case. mr. francisco: yes, you're correct. justice breyer: but wait. the word "influence" is too broad, because every day of the week politicians write on behalf of constituents letters to 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. mr. francisco: right. justice breyer: like award a contract, like vote, like et
cetera. 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 -- mr. francisco: right. justice breyer: 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 13 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 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
officials to influence virginia state researchers to initiate clinical studies. so that's the one that seems to one -- justice kennedy: they're at page 60 of the -- justice kagan: the 6091. justice kennedy: middle of the appendix. justice kagan: contacting other 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