On Sunday, President Donald Trump stated he “hadn’t thought of” pressing Vladimir Putin to extradite the dozen Russian nationals indicted earlier that week by Special Counsel Robert Mueller. When asked why not, National Security Adviser John Bolton gave a response that sounded legalistic: it would be “pretty silly” for President Trump to request the Russian fugitives’ extradition, he contended, because the United States lacks an extradition treaty with Russia and Russian law forbids extradition of its own nationals. Both should know better. Their comments suggest not that the Administration lacks legal options, but that it has no political will to seriously seek custody of the Russian fugitives.
Trump and Bolton’s comments fail—perhaps deliberately—to acknowledge the myriad legal options typically available to the U.S. government in what I call “foreign affairs prosecutions,” or criminal cases in which the executive branch is engaging its prosecutorial power and foreign affairs power at the same time. Such cases have proliferated in recent years due to the rise of transnational crime, which has in turn triggered legal adaptations to U.S. criminal law and procedure to close impunity gaps. Examples include the cases of corrupt FIFA officials, Mexican drug lord Joaquin “El Chapo” Guzman Loera, and Edward Snowden.
The Russian hacking case involves a very typical issue arising in foreign affairs prosecutions, namely, obtaining custody of fugitives abroad. The relevant part of the U.S. federal code (18 U.S.C. § 3181) requires a bilateral extradition treaty in order for the United States to extradite a fugitive to another country. When the United States is seeking a fugitive from abroad, however, the United States may request that the country extradite pursuant to its domestic law, which may not have such a treaty requirement. In this particular case, the United States does not have an extradition treaty with Russia, and the Russian Constitution appears to foreclose extradition of its nationals.
But this is only part of the story. In their Helsinki meeting, President Trump can—and should—press Vladimir Putin to support criminal accountability for the indicted Russian hackers on at least four fronts:
First, President Trump should insist that, if Putin is indeed concerned about illegal actions against the Democratic National Committee by agents supposedly not connected to the Russian state, the Russian government take any other action available under Russian law to transfer these fugitives to the United States. He should not accept Putin’s excuse that the Russian constitution legally bars the formal extradition of every requested Russian, as other measures to facilitate cooperative transfer outside the scope of an extradition treaty may be available to the Russian government. By comparison, the Brazilian Constitution also formally prohibits the extradition of its nationals, but contains exceptions for crimes committed before a Brazilian citizen is naturalized or cases of narcotics or other drug trafficking. Additionally, based on past experiences involving Russia and the United Kingdom, an act of the Russian Parliament could potentially overcome the constitutional hurdle. President Trump should explore any and all such avenues.
Second, if Putin is genuinely concerned about these crimes, President Trump should push for the Russian government to investigate and prosecute the twelve defendants within Russia itself. Customarily, the Department of Justice will request that such prosecution occur in cases where extradition or other transfer is unavailable. While a second-best option, it preserves the U.S. prosecutorial interest in ensuring that those who have committed such transnational crimes are held criminally accountable.
Third, President Trump should tell Putin that the U.S. government has or will put out Interpol Red Notices for the Russian fugitives. That action would mean any indicted Russian national crossing a third-party national border would, at a minimum, be detained for a certain number of hours; other countries may use the Red Notice as domestic legal authority to arrest the fugitive. The U.S. could then follow with a request for provisional arrest (reserved for cases of urgency) and/or extradition from the country where the suspect is detained. This method has succeeded in the past, despite Kremlin interference, for example, in obtaining the extradition of a Russian national from Thailand to face justice in the Southern District of New York.
Finally, the Trump Administration is well aware that other legal avenues are theoretically available should Putin fail to take meaningful steps to investigate, prosecute, or surrender the suspects. Although such avenues carry much more problematic consequences for U.S. foreign policy and individual rights, if the Administration wanted to get tough with Putin, Trump or Bolton could publicly signal that these options are legally available. In theory, the U.S. government could lure the Russian nationals to a third-party state that would then extradite, expel, or deport them to the United States. Even more dramatically—and undesirably for a number of reasons—U.S. law enforcement could also abduct Russian nationals and bring them to the United States for prosecution. The situation would be broadly analogous to the facts in the Supreme Court case of United States v. Alvarez-Machain, in which U.S. law enforcement abducted a Mexican national accused of participating in the torture and killing of a DEA agent. The Supreme Court famously held that the abduction did not violate the U.S.-Mexico extradition treaty, and thus a U.S. court could assert personal jurisdiction over the fugitive under the Ker–Frisbie doctrine. Presumably the Trump Administration understands that this drastic option is available under domestic law. In the present case, given the absence of a U.S.-Russia extradition treaty, a U.S. federal court would be virtually guaranteed to accept jurisdiction over the defendants, although there would be serious claims that state sovereignty had been infringed. And yet, ironically, violations of state sovereignty are what the Russian hacking scandal is about in the first place. Indeed, although it is beyond the scope of this comment, the United States may be able to claim that certain enforcement actions are lawful acts of reprisal, that is, countermeasures taken in response to past and ongoing Russian violations of international law.
In sum, Trump’s and Bolton’s comments are a misdirection. Most likely, they are using false notions of international law to hide their obvious political unwillingness to do what government officials would logically do if they were genuinely eager to get to the bottom of Russian hacking. Bolton plainly dissembled when suggesting that international or domestic law somehow legally bars Trump from pressing Putin regarding the surrender of the dozen Russian nationals indicted last week. Bolton’s assertion of legal inability reads like a transparent excuse to justify Trump’s political unwillingness to further U.S. prosecutorial interests and to protect the integrity of U.S. democratic elections. If Putin seriously wanted to help the United States get to the bottom of interference in the 2016 U.S. election—and if Trump seriously wanted to press him to do it—there are several legal avenues that both could pursue. Given the gravity of the charges, Trump should vigorously press Putin to explore all of those avenues. His failure to do so in Helsinki would provide yet more fuel for the growing suspicion that the real reason he is dragging his feet on confronting Putin is that they share a common interest in not wanting Special Counsel Mueller’s investigation to succeed—whether or not it reached the question of collusion—and that is astounding.