Analysis & Opinions - The New York Times
Trump’s Intervention in Huawei Case Would Be Legal, but Bad Precedent, Experts Say
Written by: Michael Tackett and Charlie Savage
WASHINGTON — When President Trump said in an interview this week that he was willing to intercede in the case of a Chinese telecom executive facing extradition to the United States if it helped achieve “the largest trade deal ever made,” it was a clear signal that his White House saw no problem intervening in the justice system to achieve what it considered economic gain.
A range of experts agreed on Wednesday that the president had the legal authority to order the government to rescind the extradition request for the executive, Meng Wanzhou, or even drop the charges against her. But they could not point to another instance of a president injecting himself into a criminal proceeding in a similar way.
“It sets a very bad precedent,” said Nicholas Burns, a former under secretary of state and ambassador to NATO who served in Republican and Democratic administrations and now teaches diplomacy and international relations at Harvard. “By mixing justice with trade and the rule of law with trade, it devalues both.”
Ms. Meng, the chief financial officer of the telecommunications giant Huawei, was arrested last week by Canadian authorities at the request of the American government on suspicion of fraud related to Iranian sanctions. Mr. Trump said in an interview with Reuters that “I would certainly intervene if I thought it was necessary” for a trade deal.
The White House did not respond to a request to explain how Mr. Trump arrived at that position.
But John Demers, the assistant attorney general for the Justice Department’s National Security Division, bristled at the notion that the motivation behind the charges might have anything to do with leverage in trade talks. “We are not a tool of trade when we bring the cases,” Mr. Demers said.
Mr. Burns and others, however, said the president’s remarks could be seen by other countries as a green light.
“By interfering in a Justice Department decision and giving the impression he may release her in exchange for concessions on trade talks, Trump may inspire authoritarian leaders to do the same to Americans around the world,” Mr. Burns said. “You have seen that China has detained a Canadian International Crisis Group leader. Reciprocity is a fundamental foundation stone of international politics. Others will do unto you what you have done unto them.”
Unlike most of his predecessors, Mr. Trump has offered strong opinions on numerous pending court cases, in ways that lawyers said could shape everything from jury selection to the ultimate outcome. In the extradition case involving Ms. Meng, the president seemed willing to treat it as just another element in a deal.
“It takes the term ‘transactional’ to a new level because he is basically suggesting everything is for sale,” said Wendy Cutler, a trade negotiator in President Barack Obama’s administration. “There’s a reason why these issues are in traditional lanes. And once you signal you are going to trade one off for the other, then you are in a whole new world. This undermines the rule of law.”
To be sure, the United States has often been willing to mix issues of justice to achieve other ends, such as swapping captured spies with other nations. The Iran nuclear deal offers another example.
As part of the Obama administration’s nuclear agreement with Iran, Iran released five American prisoners and Mr. Obama freed seven Iranian and Iranian-American prisoners. In addition to that swap, the Justice Department also quietly dropped sanctions-related charges and rescinded international arrest warrants against 14 other Iranian fugitives.
But Lisa Monaco, who was Mr. Obama’s top homeland security and counterterrorism adviser during the Iran deal — and the former head of the Justice Department’s national security division — argued that dropping the cases against the 14 Iranians was very different from what Mr. Trump is floating as a possibility in the Huawei case.
For one thing, she said, the Justice Department had concluded it was unlikely ever to be in a position to extradite the Iranians, while American prosecutors are now close to having Ms. Meng in their grasp.
For another, the Iran nuclear deal was an international agreement with numerous other nations, not a common bilateral trade dispute. What is more, it was also a one-time move made in a unique context: a deal to end Iran’s nuclear ambitions without war. Trade negotiations, on the other hand, happen all the time — so the precedent, she said, could endanger Americans.
“I think as a matter of law Trump could direct the Justice Department to drop the prosecution that is the basis of the extradition request,” Ms. Monaco said. “That would be wrong and outside any acceptable norm, and it would be open season on our own executives to be detained and hassled in other countries that want to get leverage in trade talks. But he could do it.”
Curtis Bradley, a Duke University law professor who has written about international law and extradition issues, said what was most unusual about Mr. Trump’s views was that he expressed them publicly as opposed to making them known through diplomatic channels. But he said that from a legal perspective, the decision to request extradition or drop such a request was primarily a matter of foreign affairs, over which the president had broad legal authority.
“Extradition is sufficiently political already and part of our foreign affairs,” he said. “I don’t think it’s comparable to intervening in domestic criminal decision-making.”
Still, the move could raise diplomatic tensions with Canada, one of the largest trading partners of the United States.
“Our extradition partners should not seek to politicize the extradition process or use it for ends other than the pursuit of justice,” Chrystia Freeland, Canada’s foreign minister, said at a news conference on Wednesday, adding that she had spoken to Secretary of State Mike Pompeo about the case earlier in the week and had stressed that Canada was a “rule of law country.”
She said that it would be up to Ms. Meng’s “lawyers whether they choose to raise comments in the U.S. as part of their defense” and that it would then be up to “Canadian judges how to weigh the significance.”
Mr. Bradley noted that the extradition treaty with Canada made an exception for crimes of “a political character.” Mr. Trump’s comments, he said, might give Ms. Meng’s lawyers a hook to argue that Canada should not send her to the United States.
“If there was evidence that the U.S. prosecution was initiated for political reasons, I suppose Meng’s lawyer could argue that the offense is of a political character,” he said. “And Trump’s remarks might at least be further evidence of that.”
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