Much ado about nothing: Ukraine didn’t stop cooperation with Mueller investigation to get US missiles

The FGM-148 Javelin anti-tank missile at Saber Strike, 2016. Image: wikimedia commons 

Analysis & Opinion

Spoiler: because there was no cooperation in the first place. But the question worth asking is: why is that the case?

The New York Times article by Andrew Kramer published on 2 May 2018 has made ripples worldwide. With the title alleging that “Ukraine, seeking US missiles, halted cooperation with Mueller investigation,” but the content stating that there was no such cooperation in the first place, it soon metamorphosed into flashy headlines such as: ”BREAKING: Trump bribed Ukraine to stop helping with Russia probe in return for weapons.” (To the US media’s credit, that allegation was debunked.)

US President Donald Trump’s distaste for the investigation by special counsel Robert Mueller into the possible collusion between Russia and  Trump’s presidential campaign is widely known. So is Ukraine’s desire to get more international military support to fight the Russian-separatist army in its eastern Donbas region. No wonder the article got attention. But is the assumption true?

Ukrainian officials say no. Volodymyr Ariev, a Ukrainian MP quoted in the New York Times article, has said his quote about Ukraine not wanting to spoil relations with the US administration was cropped, and the Ukrainian Prosecutor General has stated that although Ukraine did not yet cooperate with the USA on the Mueller investigation, it would be glad to start doing so.

Euromaidan Press went out on a fact-finding mission to answer these questions:

  1. was the Manafort investigation in Ukraine really frozen?
  2. if so, was this done to avoid irking US President Donald Trump?

The New York Times article

Andrew Kramer bases his assertion that Ukraine froze its investigation into Manafort to get the Javelin anti-tank missiles from the USA on these three things:

  1. the words of Ukrainian MP Volodymyr Ariev, who Kramer quoted as saying that Kyiv intended to put investigations into Mr. Manafort’s activities “in the long-term box,” and that “In every possible way, we will avoid irritating the top American officials… We shouldn’t spoil relations with the administration.
  2. an (alleged) order by the General Prosecutor’s office in mid-April, which blocked Serhiy Horbatiuk (alternative spelling: Horbatyuk), who heads the special investigations department in the Prosecutor General’s Office, from continuing their investigation into four cases related to Paul Manafort. Horbatiuk was quoted as saying “We have no authority to continue our investigation.
  3. the escape of Konstantin Kilimnik, Manafort’s former office manager in Kyiv, to Russia, which Kramer calls “another move seeming to hinder Mr. Mueller’s investigation.”

Let’s see how these statements stand up to scrutiny.

Background: US Special counsel Robert Mueller has charged Trump’s former campaign manager Paul Manafort and his deputy Rick Gates, in a “scheme” involving money laundering, tax evasion, bank fraud, conspiracy against the US, and failure to register as foreign agents. Events mentioned in the charges go back to the time when Manafort revamped the campaign for Viktor Yanukovych, a pro-Russian presidential candidate in Ukraine. Manafort’s efforts paid off – the former convict of oafish appearance was elected as Ukrainian president in 2010. They involved an international smear campaign against Yanukovych’s political rival, Yuliya Tymoshenko. After Yanukovych was ousted in 2014 following the events of the Euromaidan revolution, Ukraine opened probes into the crimes of its former president and his circle.

Immediately after the publication of the New York Times article, Volodymyr Ariev responded publicly in a facebook post that his original quotes were:

“I don’t know if American [prosecutors] approached their Ukrainian colleagues. I can assume that due to the situation in the country, Ukraine avoids moments which could annoy the American administration, but if American investigators approach the Ukrainian ones, the Ukrainian side will do everything necessary in accordance with existing bilateral agreements.” And: “It is possible that Manafort’s case could have ended up in a long-term drawer, but mainly due to the fact that Ukraine simply lacks investigators who would be able to properly deal with cases of this level of difficulty.”

Ariev wrote that when giving the quotes, he insisted they be published in full, but his subsequent request to New York Times to extend the “long-term box” quote he gave was not met.

Ukraine’s deputy Prosecutor General Yevhen Yenin also responded that day with a facebook post stating that the GPU (Ukraine’s Prosecutor General’s office) had not prohibited any cooperation with US law enforcement organs and that neither US law enforcers, nor the FBI, nor Muller had approached the GPU regarding Manafort’s case. And on 3 May, Ukraine’s Prosecutor General Yuriy Lutsenko told Reuters he hoped to set up a joint investigative commission regarding Manafort with the FBI and that Ukraine couldn’t finish its investigation without information from the USA.

Thus, the New York Times headline is misleading: no Ukrainian-Mueller cooperation which could be halted existed in the first place. Meanwhile, Ariev’s quote, when taken in full, implies that if the case against Manafort in Ukraine isn’t being investigated, it’s because Ukraine can’t keep up with the number of cases that need investigating.

But what about the GPU order which supposedly halted the Ukrainian investigation into four Manafort cases mentioned in the New York Times article? To understand what this is about, we managed to talk to Serhiy Horbatiuk.

The Manafort cases in Ukraine

“Essentially, it [the New York Times article – ed] is correct – today, the investigation is blocked. We initiated proceedings in which the actions of Manafort were checked in connection with former high-ranking officials, which are accused of crimes. So this is not an investigation about Manafort and we did not hand him a notice of suspicion; his actions are checked only in connection with former Ukrainian officials,” Serhiy Horbatiuk told.

After the publication of the New York Times article, the GPU publicized its answer to the request of journalists of the media which describes these four cases:

  1. where the Ukrainian Ministry of Justice purchased services from the company Skadden Arps, Slate, Meagher & Flom LLP and Affiliates to prepare a report in the case “Tymoshenko against Ukraine,” in which UAH 8.6mn ($1.08 mn) were stolen from the state budget. The GPU noted that an indictment had been issued in this case and it is now being heard in court, and that the connections of former Ukrainian high-ranking officials with foreign citizens, including Manafort, had been studied during the pre-trial investigation;
  2. where facts of dirty financing of Yanukovych’s Party of Regions were being investigated, including payments from its “secret ledger” uncovered in 2014 which were designated for Paul Manafort;
  3. where $750,000 were transferred to the account of the company Davis Manafort, of which Paul Manafort was a representative;
  4. a pre-trial investigation of an accusation of the Ukrainian ex-Minister of Justice in siphoning off UAH 2.5mn ($312,000) from the state budget to a certain European Legal Group LLC and other entrepreneurs.

Serhiy Horbatiuk, head of the special investigations department in the Prosecutor General’s Office of Ukraine. Photo: theinsider.ua

These aren’t the only cases which Horbatiuk’s department is investigating: 30 other ones involving Ukrainian former high-ranking officials who were accused of misusing state funds after the Euromaidan revolution are also in their jurisdiction.

The story of the Manafort cases being blocked started way back in 2015, when Ukraine was setting up a new framework to tackle corruption, one of the main targets which were set for the country following the Euromaidan revolution. New institutions were created, among them – the National Anti-Corruption Bureau (NABU) to investigate high-ranking corruption, and the Special Anti-Corruption Prosecutor’s Office (SAP), a department of the GPU primarily responsible for supporting and overseeing criminal investigations launched by NABU.

Although the GPU started investigating cases involving state assets stolen by Yanukovych and his entourage in 2014, lawmakers decided that they should be handled by NABU when it was created in 2015. However, at that time, NABU was a young institution not capable of processing these cases, and so the GPU’s license to continue investigating the cases was extended for two years, until 20 November 2017, after which the GPU lost its powers to continue the investigation. But by then, other legal changes were made as part of the judicial reform, another crucial area Ukraine is attempting to clean up as part of the post-Euromaidan reforms. They allowed extending the GPU’s powers over the 34 cases in question for an unspecified period and were to come into force on 15 December 2017.

However, on 14 December 2017, one day before Horbatiuk’s department could legally start working on them again, the Prosecutor General Yuriy Lutsenko made a decision to transfer them to NABU-SAP, to the disagreement of Horbatiuk’s department. And then a game of ping-pong began: the prosecutors at SAP decided to turn the cases back to the GPU, Lutsenko canceled this decision and returned them to NABU, then, SAP wrote a memorandum stating the cases should be given back to Horbatiuk’s department at the GPU, which had been working on them from 2014.

“Of course, this is legal and logical, because we started the investigation. Generally, the investigator can only be changed if the investigation is ineffective,” Mr. Horbatiuk commented on the SAP’s decision.

After the latest ping-pong episode, GPU’s leadership agreed that Horbatiuk could investigate the 30 cases involving former Ukrainian officials once again. But the four cases involving Manafort were singled out with the intention of handing them back to NABU. Horbatiuk’s department wrote a letter to the GPU management insisting to be authorized to continue investigating the Manafort cases again. They argued that these cases are connected to the investigation of Yanukovych’s criminal group and the secret ledger of the Party of Regions, and can’t be investigated separately from the others. This letter was written in early April 2018 but has received no answer. Therefore, the department can’t continue the investigation on them.

Thus, Ukraine hasn’t placed a ban on investigating the Manafort cases; rather, the management of the GPU has not made a decision to allow Horbatiuk’s department to resume investigating them instead of handing them over to the NABU.

But is this legal and administrative chaos part of a Ukrainian strategy to appease Donald Trump?

Serhiy Horbatiuk doesn’t have a ready answer as to why there are so many difficulties in investigating these cases:

“The creation of so obstacles to these cases means that, at least, the [GPU] management isn’t interested in a fast investigation. Only they know what their motivation is. The obstacles are all of a formal nature. But legal absurdities, which ruin the investigative powers of prosecutors, are also involved here. And they impact not only these four cases, but thousands of others. Many other cases were investigated by other departments in the Prosecutor’s Office. And the [30] cases involving former government officials weren’t investigated over these four months either.”

He adds that, in contrast to Ukrainian politicians quoted in the New York Times article, he hasn’t noticed any fears of conducting this investigation in Ukraine:

“Just don’t politicize the process of investigating, and no harm will be done. If you act within the law and investigate crimes according to the Criminal Code, then nobody should fear that the process will become politicized.”

One possible reason for the artificial impediments which Prosecutor Lutsenko appears to be placing before Serhiy Horbatiuk is a long-standing conflict between the two. 

Back in 2016, Horbatiuk disagreed with Lutsenko’s plans to conduct trials in absentia on fugitive Ukrainian ex-officials.  In response to Horbatiuk’s skepticism, Lutsenko, who was appointed as Prosecutor General despite his lack of a law degree, reformed the Special Investigations Department, transferring the investigation of the economic crimes of Yanukovych to a more loyal subordinate. 

Who knows if the ping-pong game with the 34 cases isn’t caused by a conflict behind the scenes? This is not an unlikely scenario considering that 14 December 2017, when Yuriy Lutsenko suddenly decided to hand over the cases to the NABU, effectively paralyzing them for four months, was also the day when Serhiy Horbatiuk went public to support the NABU amid an ongoing conflict of the agency with the GPU.

No cooperation with the USA on Manafort yet

Although memorandums of cooperation exist between the FBI and Ukraine’s Interior Ministry and the NABU, indeed no cooperation has been set up in the Manafort case, Mr. Horbatiuk confirmed: Robert Mueller hasn’t reached out to Ukraine. The letter with a collaboration proposal which Horbatiuk’s department sent to Mueller after the latest Manafort indictment in February 2018 unanswered as well.

What data from Ukraine could interest the USA?

“We don’t know their circumstances. The first indictment handed to Manafort regarding money laundering includes statements about the money originating from former high-ranking officials. It’s important to establish whether this money is of a legal or illegal origin. It is on the territory of Ukraine that this can be properly done – we have many criminal proceedings regarding the stealing of state money by former high-ranking officials. Maybe they are concentrating on the money laundering side and are not investigating these issues, but we are certainly interested in checking the origins of the money which was paid,” Mr. Horbatiuk notes.

February 2018 isn’t the first time Serhiy Horbatiuk had reached out to the USA. Requests to question Paul Manafort and employees of his firm had been sent to the FBI in 2014, 2015, and 2017, but went without result.

Regarding the escape of Manafort’s Kyiv office manager Konstantin Kilimnik to Russia, which the New York Times interpreted as a move “seeming to hinder Mr. Mueller’s investigation,” Serhiy Horbatiuk said:

“Konstantin Kilimnik is not suspected in any cases and had no restrictions of movement in Ukraine. So, we can’t call this an escape from Ukrainian law enforcement.”

So what’s the bottom line?

So, did Ukraine freeze the Manafort investigation to get the Javelins? In order to answer that question, we must look into the chronology of the Ukraine-Javelin issue.

The first time these portable anti-tank missiles came up on the radar was 29 July 2015, when In an interview with The Wall Street Journal, Poroshenko said Ukraine’s armed forces were seeking “just 1,240 Javelin missiles” to fend off separatist armor – tit for tat for the 1,240 nuclear warheads Ukraine surrendered in exchange for security guarantees from the USA, Great Britain, and Russia in the Budapest Memorandum.

On 22 September 2016, the U.S. House of Representatives unanimously backed a bill approving the supply of lethal weapons to Ukraine. Previously, US aid to Ukraine was limited to non-lethal items such as nigh vision goggles and radars.

On 31 July 2017, the Wall Street Journal reported that the Pentagon and State Department are looking to the White House to authorize the delivery of Javelin anti-tank missiles and other lethal aid to Ukrainian allies.

On 9 November 2017, several U.S. officials told the Wall Street Journal that the White House has approved in principle providing Ukraine lethal weapons, including Javelin antitank weapons. No decision has been taken on when such weapons could be provided.

On 22 December 2017, the Trump administration approved a plan to provide lethal weapons, including Javelins, to Ukraine.

On 12 January 2018, Ukraine launched training of Javelin operators and on 17 January 2018, Ukrainian President Poroshenko said that the Javelins will come as a gift.

On 1 March 2018, the Pentagon said that the US State Department approved the possible sale of Javelin anti-tank missiles and launch units to Ukraine at an estimated cost of $47 million, and the next day, Poroshenko thanked the US for the decision to sell Javelins to Ukraine.

Finally, on 30 April 2018, the US confirmed that 210 Javelins had been delivered to Ukraine.

Yuriy Lutsenko’s order on 14 December 2017 to transmit the 34 cases that Horbatiuk’s department had been investigating to NABU, including the four Manafort cases, which effectively suspended their investigation for four months, falls in between the time when the White House had approved the delivery in principle and the approving of a precise plan to deliver them. However, the order concerned not only the Manafort cases but all the cases of high-ranking officials that Horbatiuk’s department was working on, and came on a day when Mr. Horbatiuk publicly supported NABU, an institution which his native GPU was in conflict with, making it probable that this was a knee-jerk reaction amid a personal animosity.

In mid-April, which Andrew Kramer describes as the time when an “anti-corruption prosecutor” gave an “order to halt investigations into Mr. Manafort,” Yuriy Lutsenko had finally agreed that Serhiy Horbatiuk’s department could continue investigating the 30 cases but made no decision about the four Manafort cases. At that time, the decision to sell the Javelins to Ukraine had already been made.

However, all in all, Kramer’s hypothesis is extremely unlikely due to the fact that neither Mueller nor other US investigators were cooperating with Ukraine regarding Manafort, despite Ukraine’s multiple attempts to establish such a cooperation, and that the investigation of Ukrainian prosecutors into Manafort could not be finished without help from US colleagues. Therefore, Ukraine’s effective freezing of the cases had little, if any effect, on Mueller’s Russian probe, and was probably of little interest to Donald Trump.

But a question worth asking in this matter is why, starting from 2014, had the US ignored Ukrainian appeals to cooperate on the Manafort probes?

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