A matter of statecraft

Lloyd Perkins, Contributor

Much has been made of the Manatt, Phelps & Phillips engagement from the Jamaican perspective. While the preoccupation might be understandable, it is the American perspective that is the more engrossing. The latter speaks to the power and advantage of superior statecraft, and the astute use of others in converting opportunity to the benefit of American citizens, and advancement of the interest of the United States, all at the cost of those who seek to tap into American advantage.

Lobbying, as the legalised activity of influence-peddling, is inherently illegiti-mate. Nevertheless, America understands that its country has been a magnet for the citizens of the rest of the world; that given its dominance, the rest of the world would seek the favour of its power to accord and award advantage. Consequently, what the practical Americans have done is to make an industry of lobbying: American citizens lobbying their government on behalf of the world, and being paid handsomely for it.

Not unlike other countries, Jamaica or Jamaican interests have sought to tap into these largely illusory wells of possibilities. Manatt, the latest of such known prospecting, is entirely true to American modality at such levels.

The documents which permit these conclusions are filed pursuant to the Foreign Agents Regulation Act of 1938, as amended. The filing is stated to be "for purposes of registration under the Act and public disclosure".

The entire exercise is fascinating in its comprehensive and multi-purpose intent and provides compelling justification and instant rewards for an otherwise untoward activity involving conflicts of interests, and purveying of influence.

Presumably, making the matter public knowledge, providing of it high-end income to American specialists in such matters, as well as assembling an information bank on foreign countries, who presume to have designs on American power, make the activity one of high value to the administration.

A further elevation of the process by the formalities of law stipulates: "Provision of the information requested is mandatory."

The words "request" and "mandatory" appearing in the same sentence spawns some conceptual incongruities, but the directive is clear with the warning: "Failure to provide this information is subject to the penalty and enforcement provisions established in Section 8 of the Act."

Surely, the most valuable aspects of the process to a superpower in its desire to remain so by whatever means must be what follows. The document filed is automatically copied "to the Secretary of State pursuant to Section 6c of the Act", copies of all such documents being routinely made available "to other agencies, departments and Congress". Further, the attorney general's twice yearly report on the administration of the act contains lists of registered agents and the foreign principals they represent.

Directly involved in the resulting processes are the Chief Registration Unit Counterespionage Section, the National Security Division, and the US Department of Justice, among others. Exhibit B to the Registration Statement is filed by the registrant.

Registration Statement

The registrant under scrutiny is Manatt, Phelps & Phillips, LLP, Registration No. 5864.

The name of the Foreign Principal (as here stated}: "Government of Jamaica through Harold C. W Brady and Co." Under the instruction "Check Appropriate Boxes" appear Paragraphs 4 to 9.

Paragraph 4, exed as applicable, reads: "The agreement between the registrant and the above-named principal is a formal written contract." It requires that a copy of the contract be attached.

Paragraph 7 instructs: "Describe fully the nature and method of performance of the indicated agreement." This is left blank.

Paragraph 8, which requires full description of the activities of the engagement is answered as: "The services to be provided will include contacts and meetings with the Executive Branch regarding existing political and economic matters, including existing treaty arrangements between Jamaica and the US."

Paragraph 9 discloses that the activities to be undertaken include political activities as defined in Section 1(o) of the act.

Further data required of the registrant is that they "describe all such political activities indicating, among other things, the relations, interests, or policies to be influenced, together with the means to be employed to achieve this purpose", which is that "Manatt, Phelps & Phillips, LLP, will engage in political activities as defined. We will be speaking with members of the Executive Branch to provide information on issues regarding existing political and economic matters, including existing treaty agreements between Jamaica and the US". The exhibit, signed by Susan Schmidt, is dated October 30, 2009, and is officially registered as per date stamp thereon "2009, Nov.12 AM 10:46 affixed by NCD/CES/Registration Unit".

Benefits in multiple ways

As earlier suggested, a country like the US is not powerful only by reason of its size and wealth, but also by reason of its organisation, methodologies, and how its people feel about their country. Clearly, it has so organised the registration and lobbying system to benefit itself in multiple ways. The industry is used to provide the US - its agencies, departments, and legislature - with significant information on the intent and preoccu-pation of foreign countries via lobbyists.

These exercises have, therefore, the potential to deliver sensitive and compromising information on such countries and their officials, enabling relevant officials of the lobbied country and their functionaries to counter and nullify the very purpose for lobbying; provide tactical advantage in future negotiations with such countries, even as it increases GDP in high income of its lobby specialists. The lion's share of assured gain goes to the US, while the country which seeks, provides all that benefit to the US without assurance of benefit to itself. Brilliant! Viewed from a US perspective.

The methodologies of and benefits to the registrant, i.e. lobbyist, follow the same one-sided pattern. Without denying that the activity sometimes produces the desired results, the hiring of lobbyists does seem to be essentially a loser's pursuit, both as to the certitude and the preponderance of benefit to the lobbied.

Definitive statement

The Manatt engagement in its prescriptive terms is one of rank unilaterality, which emulates the legislated tenor of its purported compliance. The terms of contract are offered in a letter addressed to the Jamaican party. It opens with the definitive statement: "This letter describes the terms of our relationship." It ends: "Please confirm your agreement to the terms of this engagement letter by signing and returning this letter and remitting the first-quarter payment as described in the letter at your earliest opportunity."

It is formatted to be signed by Charles T. Manatt, Manatt, Phelps & Phillips, LLP, but appears to have been filed unsigned. The letter is countersigned, undated, above the inscription "Brady & Co., Attorneys at Law, Senior Partner", and endorsed as follows: 'The undersigned Harold Brady, consultant to the Government of Jamaica, hereby confirms that he is authorised on behalf of the Government of Jamaica to approve of the engagement of Manatt, Phelps & Phillips, LLP, as set forth in this letter."

It may be of some significance that the signatory did not represent himself to be authorised by the Government, but rather to be "authorised on behalf of the Government of Jamaica". Presumably, Manatt would have satisfied itself that since the signatory was authorised on behalf of the Government and not by the Government direct, whoever so authorised on the Government's behalf held a compatible office, or was duly appointed by Government to make such authorisation.

There is, however, no indication that Manatt had so satisfied itself, or perhaps, in the tenor and tone of the agreement it proffered, that assurance was unnecessary.

On the agreement itself, the parties might ordinarily have had some understanding, which results in the written document. However, the actual document proffered by Manatt is exclusive to Brady & Co, and is couched in non-negotiable terms.

Therefore, if Manatt has had it in its corporate mind to represent the Government notwithstanding: "Agreement is not a mental state but an act, and, as an act is a matter of inference from conduct. The parties are to be judged not by what is in their minds, but by what they have said or written or done [Chitty on Contract quoting from Cheshire Fifoot and Farmstan's Law of Contract (13th ed. 1996 p29)].

Conversely, if Manatt derived the right to name and assert what its retainer was to represent the Government of Jamaica at that time, then it filed the wrong agreement, or neglected to file a parallel agreement with the Government of Jamaica by which it asserts representation of the latter. That could hardly have been the intent as the subject matter of the representation would have been replicated, and Manatt's position would have been further contradictory and more confusing.

The document they submitted as the agreement has 15 subheads following its first paragraph, which is entirely interesting for its inconsonance with the Exhibit B disclosure. It continues:

"Manatt, Phelps & Phillips, LLP ("we or us") will represent and advise Brady & Co. attorneys at law ("you") in connection with political and economic matters, including existing treaty agreements between Jamaica and the US. For purposes of this agreement, we will be representing you only and all duties and responsibilities created and imposed by this agreement shall be owed solely to you and will not be deemed to represent the interests of any of your affiliates, subsidiaries, parent companies, joint ventures, officers, directors, partners, principals, individual members, investors and employees (collectively "your affiliates") unless otherwise agreed in writing".

There is no further written agreement filed, and from the American perspective, there is therefore no other.

Now, is Manatt being duplicitous? While they have entered the Government of Jamaica as the principal on the Exhibit B, they deny that they represent the Government of Jamaica, in expressly restricting their representation exclusively to the other signatory to the agreement, and for absolute clarity of intent, declaring themselves to owe no duty or responsibility to anyone else, by definitively excluding affiliates, which include the named principal.

In consideration of locus standi, that leaves the signatory contracting for services which are governmental in nature and import - in fact exclusively within the province of government. Therefore, while the documentation submitted for registration, when read together, is equivocal, the contract which governs the relationship between its signatories is definitive.

Accordingly, Manatt's position that it represents the Government of Jamaica sits rather inelegantly on its head, as does the contract that it represents Brady and Co exclusively in treaty and like matters.

Lloyd E perkins is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.