Shadow-box­ing: Kramer vs Lut­senko

The Ukrainian Week - - CONTENTS - An­driy Holub

Is Ukraine's halted co­op­er­a­tion with Mueller in­ves­ti­ga­tion linked to the seek­ing of U.S. mis­siles?

On May 2, the on-line ver­sion of the New York Times posted an ar­ti­cle by An­drew Kramer stat­ing, “Ukraine, Seek­ing U.S. Mis­siles, Halted Co­op­er­a­tion With Mueller In­ves­ti­ga­tion”. The piece caused quite a stir, plac­ing, as it did, re­spon­si­bil­ity for block­ing in­ves­ti­ga­tions on the Of­fice of the Pros­e­cu­tor Gen­eral of Ukraine, which de­nies this. On May 4, three Demo­crat sen­a­tors, Bob Me­nen­dez,

Dick Durbin and Pa­trick Leahy turned to PG Yuriy Lut­senko with an open let­ter about the claims made in Kramer’s ar­ti­cle. Their re­quest for clar­i­fi­ca­tion ended with three ques­tions, quoted from the let­ter:

Has your of­fice taken any steps to re­strict co­op­er­a­tion with the in­ves­ti­ga­tion by Spe­cial Coun­sel Robert Mueller? If so, why?

Did any in­di­vid­ual from the Trump Ad­min­is­tra­tion, or any­one act­ing on its be­half, en­cour­age Ukrainian gov­ern­ment or law en­force­ment of­fi­cials not to co­op­er­ate with the in­ves­ti­ga­tion by Spe­cial Coun­sel Robert Mueller?

Was the Mueller probe raised in any way dur­ing dis­cus­sions be­tween your gov­ern­ment and US of­fi­cials, in­clud­ing around the meet­ing of Pres­i­dents Trump and Poroshenko in New York in 2017?

The main fact that is at the core of the Kramer ar­ti­cle is an April or­der from the PGO that sup­pos­edly for­bade the car­ry­ing out of any in­ves­ti­ga­tion in a case in which Paul Manafort fig­ured. This would, of course, mean that any in­ter­na­tional co­op­er­a­tion in in­ves­ti­ga­tions would also be­come im­pos­si­ble. The sit­u­a­tion would have been con­ve­nient for the cur­rent US Pres­i­dent and the PGO or­der oddly co­in­cided with the start of de­liv­er­ies of Javelins to Ukraine. AC­CORD­ING TO SERHIY HORBATIUK, ON MAY 5, THE PGO FI­NALLY HANDED ALL FOUR OF THE CASES MEN­TIONED HERE TO HIS DEPART­MENT TO HAN­DLE—A DAY AF­TER LUT­SENKO RE­CEIVED THE LET­TER FROM THE THREE US SEN­A­TORS AND THREE DAYS AF­TER THE KRAMER AR­TI­CLE WAS PUB­LISHED

Robert Mueller’s in­ves­tiga­tive team is the main topic over­seas. In May 2017, he was ap­pointed to in­ves­ti­gate whether there was ev­i­dence of co­op­er­a­tion be­tween the Rus­sian gov­ern­ment and Don­ald Trump’s elec­tion head­quar­ters dur­ing his 2016 cam­paign for pres­i­dent of the United States. The in­ves­ti­ga­tion ex­tended to pos­si­ble Rus­sian in­ter­fer­ence in the US elec­tion. One of the key in­di­vid­u­als in the case is Paul Manafort, who was Trump’s cam­paign man­ager for sev­eral months. At the end of 2017, Manafort was ac­cused of a slew of crimes, in­clud­ing money-laun­der­ing and tax eva­sion.

For a sig­nif­i­cant pe­riod, Manafort’s ac­tiv­i­ties were closely tied with Ukraine. Be­fore he found him­self at the peak of his ca­reer as a pub­lic re­la­tions pro­fes­sional, run­ning the cam­paign of a fu­ture US pres­i­dent, he worked as a con­sul­tant for many years for Ukraine’s ex-Pres­i­dent Vik­tor Yanukovych and his Party of the Re­gions. This kind of co­op­er­a­tion, ac­cord­ing to Ukrainian press, took place at least be­tween 2006 and 2014, when Manafort helped what was then the Op­po­si­tion Bloc, a party based on what was left of Yanukovych’s PoR.

Some episodes in this re­la­tion­ship have been picked up by the radar of Ukraine’s law en­force­ment agen­cies, which are in­ves­ti­gat­ing the crimes of the Yanukovych regime. The NYT refers to four crim­i­nal in­ves­ti­ga­tions that in­volve Manafort. All four are be­ing han­dled by the PGO’s Spe­cial In­ves­ti­ga­tions Depart­ment, headed by Serhiy Horbatiuk.

One in­volves a pay­ment of US $750,000 to Davis Manafort, a con­sul­tancy founded by Paul Manafort. The money was trans­ferred through off­shore ac­counts for the de­liv­ery of com­puter equip­ment that never hap­pened.

A sec­ond case in­volves the white­wash­ing the Yanukovych Ad­min­is­tra­tion af­ter Yu­lia Ty­moshenko was jailed. Yanukovych of­fi­cials used the ser­vices of Skad­den Arps, a law firm, to tidy up their rep­u­ta­tion. The com­pany was paid more than UAH 8 mil­lion, worth over US $1 mil­lion at the time the con­tract was signed, out of the Ukrainian bud­get to pre­pare a re­port claim­ing that there was no po­lit­i­cal mo­tive be­hind the jail­ing of the op­po­si­tion leader. This case has al­ready gone to court, with the sus­pect be­ing for­mer Jus­tice Min­is­ter Olek­sandr Lavrynovych. Ac­cord­ing to press re­ports, Manafort him­self put to­gether Yanukovych’s strat­egy for lob­by­ing his in­ter­ests in the US and EU and or­ga­nized the con­tract with the well-known law firm.

The third case in­volves pay­outs made from Party of the Re­gion’s cash stash, known as a “black cash reg­is­ter” in Ukrainian. In this case, the sus­pects are the Kal­i­uzh­niy broth­ers, ex-MP Va­leriy and MP aide Yevhen, who law en­force­ment says per­son­ally signed the Party’s il­licit ac­count­ing books about money used for var­i­ous ex­pen­di­tures. In essence, they acted as mid­dle­men for the pay­ing out of bribes or laun­der­ing of money. One of the items for which the broth­ers re­ceived cash was recorded as “Paul Manafort”. To­day, the Kal­i­uzh­niys are of­fi­cially wanted for their crimes and, ac­cord­ing to some in­for­ma­tion from in­ves­ti­ga­tors, are hid­ing in Rus­sia.

It’s im­por­tant to un­der­stand that Paul Manafort him­self is not a sus­pect in any of these three cases, although he will cer­tainly be a key wit­ness.

The fourth case that is men­tioned in the NYT ar­ti­cle mer­its a sep­a­rate dis­cus­sion. Ac­cord­ing to Kramer, there are not one but two cases in­volv­ing Skad­den Arps, but he does not pro­vide any de­tails. Some in­for­ma­tion can be gleaned from the PGO’s re­sponse to Kramer’s en­quiry, which was only made pub­lic in Ukrainian me­dia af­ter the ar­ti­cle came out in the US. How­ever, the PGO press ser­vice did not men­tion the ques­tions asked by the jour­nal­ist. In the text of the re­sponse, in ad­di­tion to the three cases men­tioned above that are di­rectly linked to Manafort, there is also men­tion of a crim­i­nal case “on sus­pi­cion that the for­mer Min­is­ter of Jus­tice em­bez­zled pub­lic funds worth UAH 2,523,000 or about US $315,000 at the time, to pay TOV Yevropeiska Pravova Hrupa [Euro­pean Law Group] with­out jus­ti­fi­ca­tion.” In fact, Olena Lukash is the sus­pect in this case. In De­cem­ber 2013, af­ter the Euro­maidan had al­ready started, Lukash or­dered YPH to an­a­lyze cer­tain parts of the Ukraine-EU As­so­ci­a­tion Agree­ment. But this case is not con­nected to Skad­den Arps or Manafort in any way. At any rate, there is no in­for­ma­tion point­ing to a link in any pub­licly avail­able source at this time.

To un­der­stand why the NYT ar­ti­cle refers to four cases while the PGO’s re­sponse men­tions the Lukash case, we have to go back half a year to Novem­ber 20, 2017. On that day, the PGO in­ves­ti­ga­tors lost their au­thor­ity to in­ves­ti­gate any case what­so­ever. Some of these cases were turned over to NABU, the na­tional anti-cor­rup­tion agency, mainly those in­volv­ing cor­rup­tion in the higher cor­ri­dors of power.

On De­cem­ber 15, the law changes to re­turn cer­tain pow­ers to prose­cu­tors. How­ever, the day be­fore, Pros­e­cu­tor Gen­eral Lut­senko is­sues an or­der to trans­fer cases that fall un­der NABU’s re­mit to the Bu­reau.

The press has spec­u­lated about the rea­son for his de­ci­sion. Among oth­ers, they in­ter­pret it as the lat­est bat­tle in the war among law en­force­ment agen­cies, which reached its peak just about then. One opin­ion was that Lut­senko was try­ing to “bury” NABU with over 2,000 cases from all over Ukraine and to thus block the nascent watch­dog agency’s work. Among those 2,000 there were about 30 crim­i­nal cases that were be­ing han­dled by the PGO’s Spe­cial In­ves­ti­ga­tions Depart­ment headed by Horbatiuk. How­ever, soon af­ter this, Spe­cial Anti-Cor­rup­tion Pros­e­cu­tor Nazar Kholod­nyt­skiy is­sued an or­der to re­turn those cases back to the PGO’s Spe­cial In­ves­ti­ga­tions Depart­ment. The PGO lead­er­ship in­di­cated

that it was against this, once again. This kind of ping-pong­ing of the crim­i­nal cases went through sev­eral rounds un­til the spring, when they were ul­ti­mately not re­turned to the Spe­cial In­ves­ti­ga­tions Depart­ment.

“The PGO should have once again given the pow­ers to in­ves­ti­gate these cases to our depart­ment,” says Horbatiuk. “It did this in most cases, ex­cept for four cases, that have not been del­e­gated to any­one, and no one can con­tinue in­ves­ti­gat­ing them.”

And these are the four cases that An­drew Kramer was writ­ing about in the NYT. Lut­senko’s avoid­ance of del­e­gat­ing these cases to spe­cific in­ves­ti­ga­tors is what the ar­ti­cle refers to as “an or­der to stop them.” All of this did, in­deed, hap­pen in April, just be­fore the Javelins came to Ukraine, and since Manafort is in­volved in most of the cases, it’s been in­ter­preted as an at­tempt to please Trump.

How­ever, the logic of this ar­gu­ment doesn’t re­ally fol­low. Firstly, the Lukash case bears no re­la­tion to Manafort, let alone to Trump. Se­condly, the cir­cus with the in­ves­ti­ga­tion of the cases af­fects a lot more in­ter­ests in Ukraine, not re­ally those abroad, es­pe­cially as it started long be­fore the de­liv­ery of the Javelins. Thirdly, the se­lec­tive­ness of the PGO in its ap­proach to in­di­vid­ual cases is ob­vi­ous and sug­gests that the PGO is play­ing in the court of in­di­vid­u­als who are con­nected to those cases. But Lut­senko has shown this kind of se­lec­tiv­ity more than once in the past: he also tried to take the Lukash case away from SID be­fore and he suc­ceeded in re­mov­ing the case against for­mer Min­is­ter of Rev­enues and Taxes Olek­sandr Kly­menko. Even when it handed cases over to NABU, the PGO did this se­lec­tively and not en masse, leav­ing in­di­vid­ual cases in its own hands, in­clud­ing one against Serhiy Kurchenko, the money man for the Yanukovych Fam­ily. In other words, what­ever he has done, there’s no real evi- dence that Lut­senko stopped cer­tain in­ves­ti­ga­tions to ap­pease Pres­i­dent Trump.

A sep­a­rate is­sue raised in the Kramer ar­ti­cle is about a Ukrainian pro­hi­bi­tion on co­op­er­a­tion be­tween Amer­i­can and Ukrainian law en­force­ment agen­cies. “Nei­ther Amer­i­can law en­force­ment agen­cies, nor the FBI nor Mueller have turned to the PGO with any re­quests for le­gal as­sis­tance in re­la­tion to the Manafort case,” Yevhen Yenin, As­sis­tant Pros­e­cu­tor Gen­eral for In­ter­na­tional Co­op­er­a­tion, wrote on his Face­book page. “In other words, there was noth­ing there to ‘halt’ in the first place.” In com­ment­ing for The Ukrainian Week, Yenin said that he meant that there were nei­ther queries nor let­ters from the US side: “On the con­trary, Lut­senko him­self sent a let­ter to the US in Fe­bru­ary propos­ing closer co­op­er­a­tion and we never even got a re­ply.”

SID Di­rec­tor Horbatiuk says that no re­quests have come to his depart­ment from the US side, either. Back in 2014, his depart­ment sent two of­fi­cial re­quests to the US Depart­ment of Jus­tice, fol­lowed by five re­minders about the re­quests, and, last year, some ad­di­tional in­for­ma­tion to the orig­i­nal re­quest. These re­quests were, in fact, for doc­u­ments and to in­ter­view for in­di­vid­u­als ma­te­rial to cer­tain cases, in­clud­ing Manafort. The DoJ pro­vided the doc­u­ments but did not hold any in­ter­views. The last time, Horbatiuk wrote a let­ter to Spe­cial Pros­e­cu­tor Mueller him­self, ear­lier this year, but so far there’s been no re­sponse.

Ac­cord­ing to Horbatiuk, on May 5, the PGO fi­nally handed all four of the cases men­tioned here to his depart­ment to han­dle—a day af­ter Lut­senko re­ceived the let­ter from the three US sen­a­tors and three days af­ter the Kramer ar­ti­cle was pub­lished. The hope is that the PGO will re­act equally quickly to publi­ca­tions in the Ukrainian press in fu­ture.

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