The Huawei Arrest: How It Likely Happened and What Comes Next

Canada’s recent arrest of Meng Wanzhou, chief financial officer of Chinese telecoms giant Huawei, has abruptly revived fears of a trade war between the United States and China. Indeed, this single arrest has potentially thwarted recent G-20 diplomacy between the world’s two largest economies. The case thus dramatically exemplifies “foreign affairs prosecutions,” or U.S. criminal cases involving a foreign country. Cases such as these—often involving fugitive apprehension abroad—are characterized by prosecutorial decisions with foreign policy ramifications. But should they be treated as foreign policy cases, where the executive branch gets special deference? Or as federal criminal prosecutions subject to strict and searching judicial scrutiny? This post asks how the arrest happened and why recognizing this case as a foreign affairs prosecution clarifies what comes next.

I. How the Arrest Happened

Some have speculated that the arrest was timed to sabotage the recent trade truce formed between President Donald Trump and Chinese President Xi Jinping. This is highly unlikely. Here’s what probably took place:

1) Indictment: Meng was most likely indicted under seal in the Eastern District of New York on charges of violating export controls and U.S. sanctions related to Iran and other countries. The United States Attorney’s Office for the Eastern District of New York (EDNY) is no newcomer to the foreign affairs prosecution game: the office has indicted other high-profile individuals located abroad, such as El Chapo and FIFA officials. At some point (during the investigation or around the time of Meng’s indictment), EDNY would have engaged the Department of Justice (DOJ) extradition law specialists at the Main Justice Criminal Division’s Office of International Affairs (OIA).

2) Location of arrest: EDNY and OIA then faced an initial obstacle: extradition from China itself is impossible. The United States lacks an extradition treaty with China, and such a bilateral treaty is required for extradition. This shifted DOJ attention to other options, including apprehension in a third-party country that is a U.S.-extradition-treaty partner. Among other things, DOJ may have also put in place an Interpol Red Notice and waited for further developments.

3) Timing of arrest: At some later point, U.S. federal law enforcement learned that Meng was to transit through Vancouver. OIA would have contacted its criminal law enforcement counterparts in Canada, alerting them of a pending application for Meng’s provisional arrest. Contemplated in the U.S.-Canada extradition treaty “[i]n case of urgency,” such provisional arrest allowed Canadian law enforcement authorities to quickly take custody of Meng on Canadian soil. It also gave DOJ time to prepare a full extradition request with the U.S. Department of State, to be sent to Ottawa through diplomatic channels within 45 days. DOJ likely proceeded despite knowledge of the Trump-Xi summit, given the narrow window of layover time in Canada during which Meng could be arrested.

4) Alerting the White House: DOJ alerted the National Security Council of the pending arrest. Timing of such notification is unclear because it is not typical in extraditions: as is well known, DOJ is generally reluctant to discuss details of case-related investigations and law enforcement operations, given the strong norm of DOJ independence separating the Department from direct White House oversight. Trump himself thus may not have known of the pending arrest ahead of the summit with Xi, nor did Canadian Prime Minister Trudeau.

II. What Comes Next?

What will happen next in the Huawei case? Of course, much will depend on the strength of the prosecution’s evidence, which will be relevant both in the Canadian extradition hearing and—assuming the Canadians extradite Meng to the United States—in proceedings before the federal district court in Brooklyn. What we can be sure of is that the case will create tensions in bilateral China-U.S. relations, which Trump tried to ease at the G-20 summit in Buenos Aires by offering a 90-day tariff truce.

The case highlights a central challenge in foreign affairs prosecutions, namely, the balance of twin imperatives: enforcing federal law at home while fostering diplomacy abroad. Greater executive coordination—whether through formal or informal inter-agency coordination—will help mitigate some of these foreign policy risks. And yet even the specter of a White House foreign policy veto on DOJ law enforcement actions in foreign affairs prosecutions is alarming, weakening the above-mentioned DOJ autonomy norm that Trump is already straining. At the extreme, the United States would open itself to accusation that prosecutors are no more than pawns acting on behalf of political masters, as arose recently with Saudi prosecutors’ dubious statements protecting Crown Prince Mohammed bin Salman in the killing of journalist Jamal Khashoggi. Furthermore, foreign policy blowback is not always undesirable: sometimes it means the United States is taking long-necessary action to promote accountability for global crime.

The other normative concern is adverse impact to defendant interests. The fear is that the foreign affairs implications of such cases may be counted multiple times—in black-letter changes to existing criminal law and procedure, as well as in heightened judicial deference to an executive branch deploying both prosecutorial and foreign affairs expertise—such that it may overwhelm customary process. Indeed, these cases may consequentially shift key aspects of U.S. criminal law and procedure, including cross-border kidnapping, tolling of statutes of limitations, and constitutional rights protections. As these cases proliferate, courts must be sure not to make the category error of classifying these cases solely as foreign affairs cases warranting great deference to the executive branch. While the judiciary may recognize foreign affairs implications bound up in these cases, it must still engage traditional judicial tools of constitutional and statutory interpretation to uphold individual protections in this space. Foreign affairs prosecutions may involve sophisticated cross-border crimes but—at their core—they are criminal cases that, like any prosecution, weigh on fundamental liberty interests.

More broadly speaking, will we again see this foreign affairs prosecution dynamic—prosecutorial decisions with foreign policy ramifications? Absolutely. Given contemporary cross-border, cyber, and international crime, foreign affairs prosecutions only promise to increase in number, frequency and complexity—complicating diplomatic relationships with NATO allies and adversaries alike.

Photo by David Ramos/Getty Images

 

About the Author(s)

Steven Arrigg Koh

Associate in Law at Columbia Law School., former Trial Attorney in the Criminal Division of the U.S. Department of Justice, former Counsel to the Deputy Assistant Attorney General and former Counselor for International Affairs to the Attorney General.