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State Department won't rule out paying Swift Boat donor Ambassador
Michael Roston
Published: Thursday April 5, 2007
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Update: RAW STORY has received the letter from several Senators to the GAO requesting an opinion on the legality of the President's actions

The Department of State will not rule out paying a salary to Sam Fox, the major Swift Boat Veterans For Truth donor who was recess appointed as US Ambassador to Belgium by President George W. Bush yesterday.

"That's not something we're allowed to get into," Lesley Phillips, a State Department spokeswoman, told RAW STORY when asked whether or not the millionaire businessman would be paid for his services.

Phillips clarified that it was against departmental policy to speak of the compensation of any individual State Department employee, and would only point to government regulations. She then described to RAW STORY what Fox's salary could be if he is given one, based upon the Office of Personnel Management's executive pay schedule. A US ambassador's potential annual salary falls between $154,600 and $145,400.

The State Department spokeswoman directed all additional questions to the White House, which did not return RAW STORY's call.

The spokesperson's remarks appear to conflict with reports last night that Fox wouldn't be drawing a salary for his diplomatic service.

"Federal law prohibits 'payment of services' for certain recess appointments," wrote Mary Ann Akers, who blogs at The Sleuth for the Washington Post. "However, if the recess appointee in question agrees that he or she will take an unpaid position and not sue the government at a later date for compensation, then the appointment can go forward, at least as the White House sees it."

Akers was referring to a section of United States law which states that "[p]ayment for services may not be made...to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate."

Senator Chris Dodd (D-CT), along with Senators John Kerry (D-MA) and Bob Casey (D-PA) have written a letter to the Government Accountability Office seeking advice on the legality of the President's actions.

"Given the time-sensitivity of this matter, we request that the GAO urgently examine the following aspects of this case and provide its findings/recommendations as quickly as possible," they wrote.

The State Department's statement suggested the possibility that President Bush may still seek to pay the controversial nominee, who helped bank roll the anti-John Kerry Swift Boat Veterans For Truth in the 2004 presidential election. After Fox justified his donations to the '527' political group in his February confirmation hearing, Democrats prepared to reject his nomination in the Senate Foreign Relations Committee before the President suddenly withdrew the nomination last week.

The White House has sought to expand its ability to employ and pay nominees rejected by the Senate. In a Nov. 30, 2005 signing statement, President Bush took exception to annually-passed legislation prohibiting salaries for nominees rejected by the entire Senate.

"The executive branch shall construe this provision in a manner consistent with the President's constitutional authority to make recess appointments," Bush said in the statement.

Christopher Rhee, an attorney at the Washington, DC, law firm Arnold & Porter told RAW STORY that Bush's move to send Fox to Belgium, whether as a salaried or voluntary recess appointee, was likely out of constitutional bounds.

"This is certainly not what the framers envisioned for the recess appointment clause," Rhee said. "When you're talking about an ambassadorship, the power of the purse is an important prerogative of the Congress, and if you take it out of the picture, as the President appears to have done in this case, you are definitely undermining Congress's authority to play a meaningful role in diplomatic and foreign affairs."

Last year, Rhee wrote a memo for the group Citizens for Global Solutions on the legal issues raised by President Bush's attempt at giving a second recess appointment to former US Ambassador to the United Nations John Bolton. In the memo, he pointed to an opinion issued by the US Attorney General's office in the 1800s which called a move like Bush's an abuse of power.

"[It is] an abuse by the President of his own constitutional powers . . . of filling vacancies by so exercising them as intentionally to frustrate the intervention of the Senate," he noted.

The confrontational ambassador ended up resigning from his post in December after the Senate changed hands and the White House recognized that they didn't have enough votes to get his nomination out of the Senate committee.

"If bipartisanship is to succeed, perhaps we ought to make sure that people who serve their country ably and well are sent the signal that your services will be treasured, because when a John Bolton, after the kind of success he's had as a U.N. Ambassador, cannot get out of the Senate Foreign Relations Committee, that sends a discouraging note to anybody who wants to serve their country," White House spokesman Tony Snow told the press last December.

The full letter from Senators Dodd, Kerry, and Casey is appended in full below.

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The Honorable David M. Walker Comptroller General Government Accountability Office 441 G Street, NW Washington, DC 20548

Dear Mr. Walker:

We write to request that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration’s recent recess appointment of Mr. Sam Fox as Ambassador to Belgium. We view the recess appointment of Mr. Fox as a clear abuse of the President’s recess appointment power, but additionally think that Mr. Fox may be barred from taking the position of Ambassador, since the government is prohibited from accepting the voluntary services of an individual under 5 U.S.C. § 1342. We would, therefore, appreciate your formal opinion on this issue.

By way of background, on January 7, 2007, the President nominated Mr. Sam Fox to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Belgium. A hearing on his nomination was held by the Senate Foreign Relations Committee on Tuesday, February 27, 2007. The Senate Committee had placed Mr. Fox’s nomination on the agenda for a Business Meeting on March 28, 2007. Shortly before the Business Meeting convened, however, the President withdrew the nomination of Mr. Fox from the Senate.

The Senate then went into recess on March 29, 2007. On April 4, 2007, while the Senate was in recess, and after Mr. Fox’s nomination had been withdrawn, the Bush Administration recess-appointed Mr. Fox as Ambassador to Belgium.

Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency.

As we understand it, there are some exceptions to this prohibition. For example, “voluntary services” may be permitted if an agreement is made between the individual and the government agency in question that no later claim to compensation will be made. In the case of Mr. Fox, however, it appears that the “voluntary services” prohibition would still apply because the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).

There appears to be a clear conflict between the pay restrictions as enumerated in Title 5 of the United States Code, which prevent Mr. Fox from being paid due to the circumstances of his recess appointment, and the “voluntary services” provision of Title 31 of the United States Code, which mandates that the United States Department of State cannot accept “voluntary services” for the position to which Mr. Fox has been recess appointed.

Given the time-sensitivity of this matter, we request that the GAO urgently examine the following aspects of this case and provide its findings/recommendations as quickly as possible:

  • Would Mr. Fox’s service as Ambassador, if unpaid, be considered “voluntary service” within the meaning of 31 U.S.C. § 1342? If not, why not?

  • Is there a conflict between statutes when it comes to Mr. Fox providing “voluntary services”? If so, how should they be reconciled?

  • If the United States Senate defeats the nomination of Mr. Fox, would Mr. Fox’s recess appointment continue through the current session of the Congress, or would it be terminated?

Thank you in advance for your prompt attention to this request. We look forward to your findings and recommendations.

Sincerely,

Christopher J. Dodd John F. Kerry Robert. P Casey, Jr.