Criminalizing Foreign Relations: How the Biden Administration Can Prevent a Global Arrest Game

The U.S. President is undoubtedly the chief U.S. diplomat, but is he or she also the chief prosecutor? Donald Trump clearly thinks so, stating once his grave misunderstanding that “I have absolute right to do what I want to do with the Justice Department.” But it is a mistake to assume that the White House can direct the DOJ with impunity. This mistake is harmful not just to criminal justice but also foreign relations, risking outbreak of what I call the global arrest game. Below, I illustrate this precarious dynamic using the recent example of the federal indictment, apprehension, and release of General Salvador Cienfuegos Zepeda, the former Mexican Secretary of National Defense. I also suggest how a Biden Administration should realign its criminal justice practices with its foreign policy agenda.

While the DOJ is part of the executive branch, it traditionally functions free of direct White House control due to the vital normative concern that criminal justice function without overt politicization. Both the Bush and Obama administrations adhered to some form of this policy, limiting DOJ-to-White-House communication regarding criminal investigations and prosecutions. For example, in a 2009 conversation with Attorney General Eric Holder regarding the forum in which to prosecute Khalid Sheikh Mohammed, President Obama reportedly said, “It’s your call, you’re the attorney general.”

But along with so many other norms, President Trump has deeply undermined this autonomy by using political interference, pardons, commutations, and prejudicial public commentary on pending criminal cases. The controversy around the Roger Stone sentencing, for example, rightly triggered widespread criticism, the withdrawal or resignation of four DOJ attorneys, and a congressional hearing investigating the disturbing episode of political influence before Trump commuted Stone’s sentence.

An underappreciated aspect of such recklessness is its broader impact on foreign relations. As I have argued here previously, the “long arm” of U.S. criminal justice today gives rise to foreign affairs prosecutions, or U.S. criminal cases that impact foreign policy because they involve a foreign defendant, extraterritorial criminal conduct, and/or foreign law enforcement measures such as extradition or mutual legal assistance. While such cases have always existed in U.S. history, DOJ’s institutional capacity and willingness to prosecute such cases has grown in recent years in response to the rise of cross-border, cyber, and international crime. And because of such cases’ hybrid nature, the executive branch acts with even greater authority and discretion than in purely domestic criminal prosecutions.

Case in point: this month, the Trump administration invoked its foreign affairs authority in U.S. federal court to dismiss a high-level foreign affairs prosecution against General Salvador Cienfuegos Zepeda, the former Mexican Secretary of National Defense in the government of President Enrique Peña Nieto from 2012 to 2018. In this case, the U.S. Attorney’s Office for the Eastern District of New York had indicted Cienfuegos on drug and money laundering charges, accusing him of using his government authority to assist drug cartels. In October 2020, he was arrested in Los Angeles on such charges, prompting fears of backlash from the Mexican government. Then, in November 2020, the DOJ made a startling reversal, moving to dismiss the indictment because “the United States … determined that sensitive and important foreign policy considerations outweigh the government’s interest in pursuing the prosecution of the defendant.” Commentators rightly called this an “eyebrow raiser”: the U.S. investigation into the case had lasted for over a year, begging the question why DOJ would dismiss the case just after arrest. Judge Carol B. Amon of the Eastern District of New York obviously felt similarly, calling the Acting U.S. Attorney Seth DuCharme to court to personally explain why the DOJ had made the reversal. Some also speculate that this change owed to President Trump’s personal connections with President Andrés Manuel López Obrador of Mexico, who still has not recognized President-Elect Biden’s victory in the 2020 election. While the United States has said in a joint statement that it will cooperate with the Mexican prosecution of the case, it is an open question whether the Mexican government will or has the capacity to do so.

At first glance, the Cienfuegos case appears to constitute a proper, even desirable use of presidential foreign affairs authority: the President may be exercising control over DOJ to mitigate foreign policy damage. But such involvement does more harm than good, feeding domestic and foreign perception that U.S. criminal justice is politicized “all the way down.” In other words, every time the U.S. President makes statements threatening to intervene in criminal prosecutions, he “flattens” the global perception of U.S. criminal justice abroad: complex decisions led by DOJ political appointees and line prosecutors are viewed globally as a projection of U.S. foreign policy power.

In the wake of the Cienfuegos arrest, for example, Mexican President Andrés Manuel López Obrador declared that the arrest may have been for “political or other reasons” and accused the Drug Enforcement Administration (DEA) of “meddling.” The Huawei example is also instructive here. After the Canadian arrest of Huawei CFO Meng Wanzhou at the request of the United States, Prime Minister Trudeau reaffirmed Canada’s independent criminal justice system, stating: “We need to continue to be absolutely crystal clear that Canada has an independent judiciary and those processes will unfold independently of any political pressure—including by foreign governments.” By contrast, President Trump declared that he might intervene due to the exigencies of trade negotiations with China. This is a far cry from, for example, President Obama’s deflection of President Hollande’s 2014 request that the DOJ desist in the BNP Paribas case.

Such stakes are even higher when considering the broader geopolitical dynamics: President Trump’s actions raise the dangerous specter of what I call the global arrest game, wherein other countries engage in retaliatory arrest rather than attempting to resolve disputes through negotiated treaty channels or diplomatic mechanisms. Just last month, China reaffirmed its willingness to play this game by declaring that it will detain U.S. citizens if DOJ proceeds with prosecution of scholars who are members of the Chinese military. This is not an idle threat: China has already been criticized for engaging in a “punitive campaign” against Canadian citizens as retaliation for the Huawei arrest.

To mitigate the rise of the global arrest game, President-Elect Biden should make two structural executive changes. First, he should preserve DOJ’s autonomous management of such cases. The National Security Council (NSC) can and should provide a forum for inter-agency dialogue and coordination, wherein the DOJ apprises the White House and other agencies of its law enforcement activities. But such communications should not rise to the level of White House case-specific direction regarding prosecution or withdrawal of indictment. Even the revival of an exception for national security matters should be narrowly circumscribed, conducted through formal points of DOJ contact to the NSC. While of course this will inevitably mean some friction between U.S. foreign policy and criminal prosecution, such friction is preferable to the above-referenced corrosion of DOJ’s autonomy.

Second, a Biden DOJ should better harness criminal justice’s distinctive and expressive function in foreign relations to prevent the outbreak of a global arrest game. As I argue in a forthcoming article, The Criminalization of Foreign Relations, criminal justice does not exist in a vacuum; instead, it functions globally alongside six other foreign policy modalities (diplomacy, agreements, trade, economic sanctions, military force, and foreign aid). A Biden DOJ, mindful of this reality, should better centralize foreign affairs prosecutions through Main Justice in Washington, D.C.; this will, in turn, improve its ability to engage in the aforementioned coordination through the NSC. And it helps prevent controversial cases like that of Indian diplomat Devyani Khobragade, whose 2013 indictment in the Southern District of New York led to Indian reprisals including removal of security barriers around the U.S. embassy in Delhi. Given such changes, a Biden DOJ can deploy foreign affairs prosecutions given their comparative advantage: they are individualized, retrospective, process heavy, and result in incarceration or even execution. Additionally, DOJ must be mindful that such cases are expressive, communicating America’s solemn commitment to accountability for serious crimes—a value manifest, for example, in U.S. support for the post-World War II (Nuremberg and Tokyo) and the post-Cold War international criminal tribunals (Yugoslavia and Rwanda). It is also what the United States signaled in its well-received FIFA and El Chapo prosecutions.

President Trump and his administration have undermined the rule of law at home and abroad, and severely damaged the United States’ rule-of-law reputation. To restore both, President-Elect Biden should signal his refusal to criminalize foreign relations by fortifying foreign affairs prosecutions’ distinctive and expressive function, thus preventing the outbreak of a destructive global arrest game.

The author is grateful to Professor Guillermo Garcia Sanchez for his assistance with this piece.

Photo by Win McNamee/Getty Images.

 

About the Author(s)

Steven Arrigg Koh

Marianne D. Short and Ray Skowyra Sesquicentennial Assistant Professorship at Boston College Law School, former 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.