There’s so much bad news in the anticorruption world these days that it’s hard to keep up. But I’ve recently been reading up on the ongoing debates in Europe over the selection of the first European Public Prosecutor, and I think this issue deserves some discussion, and even more attention from the anticorruption community in Europe and around the world.
Here’s the quick background for those who aren’t familiar with this issue: Back in 2017, 20 EU Member States agreed to create a new institution called the European Public Prosecutor’s Office (EPPO), headed by a European Public Prosecutor, with authority to investigate and prosecute (in national courts) offenses connected to the EU’s financial interests, such as fraud or embezzlement involving EU funds. (22 EU countries have now agreed to participate in the EPPO system.) The EPPO is scheduled to begin operations in late 2020 or early 2021, and the EU is in the process of selecting the first EPPO head. The three finalists are a Jean-Francois Bohnert of France, Andres Ritter of Germany, and Laura Corduta Kovesi from Romania. Ms. Kovesi had been considered a frontrunner, and still might secure the post, but her candidacy is under attack from her own government. Indeed, it seems that intense lobbying against her by the Romanian government is what led the Committee of Permanent Representatives in the European Union to back Bohnert for the job, though the European Parliament’s Committee on Civil Liberties, Justice, and Home Affairs voted to support Kovesi. The selection process is still ongoing, and it’s not clear when a final decision will be made. For those getting cold feet about Kovesi, though, it seems that the opposition of her home government is a significant reason.
In my view that’s not only wrong, but backwards. The Romanian government’s no-holds-barred, all-out attack on Kovesi is one of the best arguments for appointing her. I don’t know enough about the candidates to have a considered view of which of them, all else equal, would do the best job heading the EPPO, but assuming that they are all basically well-qualified, the Romanian ruling party’s panic over the prospect that Kovesi might get the job is exactly why she should be appointed, for two reasons:
- First, the fact that government of one of the most corrupt countries in the EU—one with the greatest theft and misappropriation of EU funds—is terrified that Kovesi might get the job, but apparently fine with either of the other two choices, is strong evidence that she’ll be more effective. After all, if we were selecting the city police chief, and we found out that the local mafia boss strongly objected to candidate A, but was fine with candidates B and C, that seems like a point in candidate A’s favor, not a strike against her. (And if you think it’s unfair to compare the government of an EU member state to an organized crime family, well, read on.)
- Second, the Romanian government is conducting a fairly blatant attempt to misuse its justice system in order to interfere with an EU decision process, in the context of a corrupt and increasingly illiberal ruling party. The EU is already struggling to deal with backsliding in Hungary and Poland, and it needs to show that it won’t be bullied or manipulated, and that if Member States want to be treated as good EU citizens, they need to comport with basic norms.
Now, given that I just made those statements with what sounds like great confidence, and the rest of this post may adopt a similarly confident tone, I should immediately add the caveat that I am not an expert on Romania, I’ve never been there, I don’t speak the language, and all I know about the situation, as the old saying goes, is what I read in the papers. So if you want to say I don’t know what I’m talking about, fair enough, you have a point. But I’ve been reading a lot about this, and what I’ve read seems both sufficiently scary, and sufficiently clear, to merit comment. Moreover, I think the Romanian government’s strategy relies in part on non-experts feeling like they don’t really understand what’s going on, so that it starts to feel like that, in the face of conflicting narratives (a sort of he said/she said), it’s best just to avoid controversy by supporting a “safe” choice for EPPO head. We’ve got to resist that impulse. Appointing someone other than Kovesi may seem like the safe choice, but that’s exactly why Kovesi is the right choice.
Some more background: Laura Codruta Kovesi is a career prosecutor. In May 2013, she was appointed chief prosecutor of the National Anticorruption Directorate (DNA), which had been established roughly a decade earlier but hadn’t done much of note. Under her leadership, the DNA emerged as a force to be reckoned with. In the five years she ran the agency, the DNA indicted roughly 1,200 people per year on corruption charges with approximately 1,000 of these (over 80%) ultimately convicted. And these weren’t just small fry: DNA prosecutions secured the convictions of a former prime minister, over a dozen cabinet ministers, and numerous MPs, Senators, and other powerful figures… including the most powerful political figure in Romania, Liviu Dragnea, the principal villain of our story.
Liviu Dragnea is the leader of the Romania’s ruling Social Democratic Party (PSD) and the President of the Chamber of Deputies (the lower house of the Romanian parliament). Dragnea rose from his roots as a local potentate (County Council president and DSP party boss in his home region) to become an MP after the 2012 elections, when then-PSD leader Victor Ponta was Prime Minister. After Ponta was forced to step down in 2015, Dragnea took over as PSD leader, led the party to a decisive victory in the 2016 legislative elections, and became the President of the Chamber of Deputies. Dragnea is one of the most powerful and successful Romanian politicians since the fall of the Causesco regime. He’s also a crook. In May 2015, shortly before he was selected as the PSD leader, he was convicted of election fraud—in a case brought by Kovesi’s DNA—over his attempt to use bribery and forged ballots to influence an ultimately unsuccessful 2012 referendum to remove then-president Traian Basescu, a political opponent of the PSD. Dragnea received a two-year suspended sentence and resigned his position in Ponta’s cabinet, but Dragnea’s conviction for election-rigging was not enough to discourage the PSD from selecting Dragnea as their leader, nor did it discourage a plurality of Romanian voter from backing the Dragnea-led PSD in the 2016 elections. Dragnea’s conviction makes him ineligible to serve as Prime Minister under Romanian law, but he retained his position as President of the Chamber of Deputies, and for all intents and purposes he runs the government through a rotating cast of puppet PMs, who hold their positions as long as Dragnea is happy with them: Sorin Grindeanu (January 2017-June 2017), Mihai Tudose (June 2017-January 2018), and Viorica Dancila (for the last year-plus).
But wait, there’s more. Back when he was a County Council president, Dragnea—in classic corrupt-party-boss style—was in the habit of getting his political operatives cushy public-sector jobs, for which they would be paid despite doing no actual government work. In July 2016, the DNA indicted Dragnea for abuse of power, alleging that, when Dragnea was a County Council president, he used his power to ensure that two PSD party workers retained local government positions and salaries, even though they did not actual work for the government, and in fact were carrying out political activities on behalf of the PSD. Dragnea was convicted on the abuse of power charges in June 2018 and sentenced to 3 ½ years in prison, though the sentence is suspended pending his ongoing appeal. And then in November 2017, Kovesi’s DNA opened yet another case against Dragnea, this one based on information provided by the European Anti-Fraud Office (OLAF) that indicated that back when he was a County Council president and local party boss, Dragnea and co-conspirators set up a criminal enterprise that defrauded the EU of over 21 million Euros worth of EU funds that were intended for road construction.
So, here we have a politician who has been convicted of corruptly trying to rig an election to oust a political rival, is currently appealing a conviction for corruptly arranging for party workers to be paid by the government, and has been indicted for massive theft of EU and state funds. But none of that has been enough to undermine his iron grip over the PSD and, by extension, the Romanian government. And what we’ve seen over the last two years has been an effort by the PSD-controlled government—breathtaking in its brazenness—to protect Dragnea and his corrupt cronies by any means necessary. The PSD’s efforts to protect Dragnea (or really, Dragnea’s attempts to protect himself and his allies) have had two related prongs:
- The first prong of the strategy involves changing the law to let Dragnea off the hook (and perhaps restore his eligibility to serve as PM), and more generally to make it harder to convict defendants for corruption. Here the PSD has been partly stymied by citizen resistance, but seems to gradually be getting what it wants. After the 2016 elections, the new PSD government proposed a law to pardon all those serving a prison sentence under five years for certain abuse-of-power offenses—a category that would have included Dragnea. The government backed off of that, but barely a month later (in February 2017) the government passed an “emergency decree” that eliminated the possibility of prison time for corruption cases in which the financial damage was below a certain threshold—a threshold that, conveniently enough, would have meant that Dragnea’s then-pending indictment for abuse of power couldn’t have resulted in prison time. This emergency decree, however, triggered street protests that grew so massive that the government retracted the decree. A more recent effort to enact more broad-ranging changes to Romania’s corruption laws, and the criminal procedure code more generally, has triggered another fight, one that is still raging, and has involved the constitutional court as well. Suffice it to say that the PSD government is still trying to push through changes that would decriminalize a wide swath of currently-unlawful corrupt conduct, including—unsurprisingly—amendments that would apply to the cases brought against Dragnea himself.
- The second prong of the strategy involves crippling the DNA, that pesky office that has been so irritatingly successful in holding corrupt politicians and their associates accountable. A big part of this line of attack has focused on Kovesi herself. In February 2018, Justice Minister Tudorel Toader (another Dragnea puppet) recommended that Kovesi be dismissed. As justification, he laid out a series of vague and/or implausible accusations against her, which basically everyone who isn’t a PSD hack or a paid shill recognized as bogus. The Romanian President (who, under Romanian law, is separately elected and is not aligned with the PSD) initially refused to fire Kovesi, but the Constitutional Court ruled (controversially) in May 2018 that the DNA head falls under the jurisdiction of the Justice Ministry, meaning that the President is legally obligated to follow the Justice Minister’s recommendation to dismiss. The dismissal, which took effect in July 2018, triggered more protests, but didn’t affect the decision. In addition to forcing Kovesi out, the government has been taking other steps to weaken the DNA as an institution, including creating a new supervisory body (the “Section for Investigating Crimes in Justice”) to subject Romania’s traditionally-independent prosecutors more oversight by political appointees, cutting the DNA’s budget, and altering the way the DNA chief is appointed in order to give the government more more control. The PSD, along with technically separate but closely allied private-sector cronies, have also launched an international propaganda campaign to discredit the DNA’s work, and Kovesi personally—a propaganda effort that has included, in one notable case, the hiring of Trump lawyer Rudy Giuliani and former-FBI-Director-turned-lobbyist Louis Freeh.
These strands all come together in the ongoing drama over the EPPO. As soon as it became clear, in late 2018, that Kovesi was under serious consideration to become the first European Public Prosecutor—an office whose responsibilities would include investigating and prosecuting theft of EU funds, exactly what Kovesi’s DNA had charged Dragnea with shortly before he had her fired—Dragnea’s gang flew into a combination of panic and rage, and began a blatant, ham-handed attempt to discredit her. Not only has Justice Minister Toader written to the EU to complain about Kovesi’s alleged abuses of power, but the head of the newly-created “Section for the Investigation of Crimes in Justice” announced a range of criminal charges against Kovesi related to her time as DNA head. It’s surprisingly hard to find English-language material explaining the nature of the allegations against her, so I’m not in a position to provide a complete assessment, but from what I have been able to find, the allegations seem to range between “thin” and “absurd.”
- The criminal case against Kovesi actually began with a rather bizarre allegation brought against her by a multimillionaire Romanian businessman—and former PSD politician—named Sebastian Ghita. Back in 2016, the DNA indicted Ghita for a range of corrupt activities; he fled to Serbia, which refused to extradite him. While on the run from Romanian justice, Ghita lobbed a series of allegations against Kovesi, including the charge that she was an agent of a foreign intelligence service (possibly the CIA) and, more relevant here, that she had somehow improperly coerced one of Ghita’s companies to pay the Indonesian government for the repatriation of a Romanian fugitive. I’ve read about this incident in multiple sources and still can’t quite figure out what exactly the alleged wrongdoing was or how the alleged scheme worked. But that seems mostly beside the point, because the Romanian police produced invoices back in 2016 showing that in fact they paid for the repatriation of the fugitive on a charter flight. Just so we’re clear on what’s going on, let’s put it simply: A businessman closely allied with the PSD, one who had been indicted for serious corruption offenses by Kovesi’s DNA, has made an unsubstantiated allegation—indeed, an allegation contradicted by documentary evidence—against Kovesi, and on this basis, a PSD appointee is opening a criminal investigation against her. Why should anyone involved in selecting the EPPO head take this at all seriously?
- Additionally, Kovesi has been attacked in connection with an ongoing controversy over so-called “secret protocols” between Romanian prosecution agencies—including but not limited to the DNA—and the Romanian intelligence service. There are a bunch of complicated issues here, and again the lack of clear English-language sources somewhat hampers my ability to offer a confident summary and assessment—but basically, back in 2009, Romanian prosecution agencies, frustrated by their technical incapacity to use certain kinds of investigative tools (such as electronic surveillance), reached an agreement with the intelligence services, which had the requisite capacity, under which the intelligence service would provide technical assistance, and more generally that the agencies would share certain kinds of information. (Kovesi was general prosecutor at the time, so she signed off on the protocols.) The problem, though, is that collaboration between domestic law enforcement and the intelligence services is both politically sensitive (especially given Romania’s communist-era history of government spying on private citizens) and arguably illegal. Indeed, once the protocols were disclosed in 2018, they attracted a great deal of criticism both domestically and internationally, and Romania’s Constitutional Court eventually ruled (6-3) that the protocols were unlawful. I agree that these protocols do raise legitimate concerns, but the way Kovesi’s approval of the protocols has been deployed against her seems to me obviously pretextual. She was not the only official who participated in or was responsible for these agreements, yet so far as I can tell she’s the only one who has been singled out for alleged abuse of office. Oh, and if you really think that high-level PSD officials had no idea that these agreements were in place prior to 2016, and that it’s a total coincidence that they were “discovered” and declassified right at the time the government was pushing to remove from Kovesi from office, well, you’re a more trusting person than I am. Additionally, even if one believes that these agreements were inappropriate or illegal, it’s hardly the case that the protocols were so totally outrageous that they demonstrate unfitness for office. The Romanian prosecution service had a legitimate problem—an inability to conduct electronic surveillance—and it reached out to the one institution in the Romanian government that had that capacity. That’s a questionable decision, but hardly an absurd one. Similarly, the issues concerning the appropriate degree of cooperation and information-sharing between foreign intelligence services and domestic prosecution services are complicated, and different countries have struck the balance in different ways. I’m uncomfortable with the kind of arrangement these Romanian protocols seem to have set up, but the idea that they represent such a grotesque abuse of power that anyone associated with them should be disqualified from a position of responsibility seems a bit much, especially when that view is coming from a party whose leader has been convicted of trying to remove a political opponent through bribes and fraud, has also been convicted of arranging for political operatives to be fraudulently paid government salaries for non-existent jobs, and is currently under being prosecuted for orchestrating a scheme to defraud the EU of 20 million Euros.
Oh, and just in case you might be wondering whether there’s still some possibility that Romania’s criminal investigation of Kovesi right at the time when she’s under consideration to be the first head of the EPPO is a big coincidence—or if you thought that perhaps Dragea’s crew might be capable of subtle rather than obvious thuggery—then consider the timing of Kovesi’s hearings before the division investigating her (timing that would be comical if it weren’t so outrageous): They first demanded, through a last-minute subpoena, that she appear to address the charges against her on the same day that she was supposed to be in Brussels to interview for the EPPO job with a European Parliament committee, and according to recent reports, they’re demanding that she next appear this Thursday, March 7, the day when the European Parliament and the EU Member States are supposed to mean to discuss the next steps in picking the EPPO head.
This has been a long post, I know, but I think it’s one of the more important issues facing the anticorruption community right now, and we should all be doing more to speak out on the issue. Yet major anticorruption organizations, while not exactly silent, don’t seem to be placing much emphasis on this controversy. For example, Transparency International’s press releases over the last month include expressions of concern about recent developments in Ukraine, Danske Bank, and the Maldives, but have nothing on the EPPO controversy. TI’s EU chapter also doesn’t seem to have weighed in on this issue. Bizarrely, I couldn’t even find a discussion of it on the (Google-translated) TI Romania webpage. I don’t mean to pick on one organization (one that has lots of issues competing for its attention), but I do think that this is a sufficiently pressing issue that those who care about corruption in Romania, the EU, and around the world should make their voices heard, and make clear that a corrupt government’s pretextual objections to a bold and effective (though of course imperfect) anticorruption prosecutor are not a good reason for passing over that candidate for a “safe” choice.