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Should Trump's Foreign Policy Affect Criminal Prosecutions?

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Should Trump's Foreign Policy Affect Criminal Prosecutions? Business Crimes Bulletin ® Volume 26, Number 9 • May 2019 Should Trump’s Foreign Policy Affect Criminal Prosecutions? By Robert J. Anello and eign relations may be implicated be- Meng and those of state-created cor- Kostya Lantsman cause of the nationality or location of porate entities like Huawei and ZTE. the defendants. Because enforcement Comparing the impact of the Execu- Business has gone global. So too of the federal criminal code abroad tive’s intervention in each of these has business-related crime. In the in- or against foreign individuals and en- prosecutions, helps illustrate why in- terconnected business environment, tities has an effect on foreign states, dividual and corporate prosecutions white-collar criminal investigations such cases have an impact on the re- should be treated distinctly. and prosecutions frequently present lationship between the United States cross-border issues and affect U.S. for- INDIVIDUAL V. CORPORATE RIGHTS and other countries. For example, the eign relations. Indeed, in some recent Individual criminal prosecutions im- recent arrest of Meng Wanzhou, the high-profile cases, the Trump admin- plicate life and liberty interests that CFO of China’s Huawei and daugh- istration has implied that it sees law are strictly protected by due process. ter of Huawei’s influential founder, enforcement — or the lack of it — as Some due process rights protect hu- made international headlines. Charges one of the tools in its foreign policy man dignity — such as double jeopar- against Meng, Huawei, and ZTE, an- arsenal. Allowing these foreign rela- dy protections which allow individu- other Chinese telecommunications tions implications to influence the als to avoid the “continuing state of prosecutions of individuals would equipment maker, have significantly anxiety and insecurity” if they had to seem to violate our notions of fairness affected America’s vital and delicate fear a second trial for the same con- and due process. Because corporate relationship with China. duct. Green v. United States, 355 U.S. criminal enforcement, however, is far President Trump has linked these 184, 187 (1957). Similarly, due process more regulatory or policy-oriented in cases directly to the ongoing trade protections enhance society’s trust of nature, foreign relations perhaps can negotiation with China, asserting that the criminal justice system. Society’s be seen as a legitimate consideration Huawei and ZTE may be included in knowledge that criminal defendants in such criminal prosecution deci- the trade deal and that he would con- are treated evenhandedly strength- sions. sult with Attorney General William P. ens their belief in and support for the Foreign Corrupt Practices Act (FCPA) Barr before acting. This suggestion rule of law. The opposite — provid- investigations, sanctions enforcement, — that criminal prosecutions may be ing disparate treatment to the wealthy, and prosecution of economic espio- influenced by U.S. foreign policy in- powerful, or well-connected within nage by design deal with interna- terests — was immediately criticized the criminal justice system — under- tional issues. Even for cases brought by some legal experts. See, e.g., Phil- mines the rule of law and societal under laws that do not necessarily im- lip Bantz, “What Happens If Trump confidence in criminal justice. In the plicate cross-border issues, complex Intervenes in the DOJ’s Case Against same vein, utilizing the criminal jus- fraud (LIBOR and FX manipulation Huawei?,” Corporate Counsel (Dec. 12, tice system to punish individuals — or conspiracies), banking crimes, and 2018) (http://bit.ly/2UNjGMO) (argu- to forgive them — because of political money laundering enforcement, for- ing that President Trump intervening considerations strikes most Americans in the Huawei and Meng prosecutions as fundamentally unfair. This rejection would send a bad message to global Robert J. Anello, a member of the Board of political prosecutions is reflected of Editors of Business Crimes Bulletin, is businesses). Unfortunately, President in extradition treaties that allow the a partner in Morvillo Abramowitz Grand Trump and critics have failed to tease United States and its treaty partners to Iason and Anello PC. Kostya Lantsman out the difference between foreign deny extradition requests for “politi- is an Associate in the New York office of policy influencing the prosecution of cal offenses.” President Trump’s sug- the firm. a living, breathing human being like gestion that Meng’s prosecution may LJN’s Business Crimes May 2019 be a part of the political negotiations tions that the law affords them. PRESIDENT TRUMP’S WILLINGNESS could lead to Canada rejecting the Corporations are artificial entities TO MIX CRIMINAL PROSECUTIONS U.S.’s extradition request. As Harvard given life and regulated by the law. AND FOREIGN POLICY Law Professor Mark Wu stated: “Any The purposes of corporate criminal Meng’s arrest during a layover perception that her arrest is meant to prosecutions are different from the at Vancouver International Airport offer political leverage in upcoming purposes of individual prosecutions. by Canadian authorities acting on trade negotiations could jeopardise Although the United States has made a U.S. warrant pursuant to charges the success of the ongoing extradition the decision to subject corporations filed in the Eastern District of New hearings in Canadian court.” to the criminal laws, other countries York (EDNY) made front-page head- Although corporations in the U.S. such as Germany, Sweden, and Argen- lines in the U.S. and China. Huawei enjoy some of the same due process tina do not subject legal entities to the was charged alongside with Meng in protections as individuals, these state- general criminal laws. Instead, corpo- EDNY and, more recently, was also created business entities do not share rate misconduct is regulated through separately charged in the Western Dis- all of them. For example, human dig- civil administrative enforcement. Yet, trict of Washington with attempting to nity rights like the right against self- whether the applicable laws and pro- steal trade secrets from T-Mobile, to incrimination, which preserves auton- cesses are criminal (as in the U.S. which it was supplying phones. omy, does not extend to corporations. and other common law countries) or In 2017, ZTE plead guilty to conspir- See, e.g., Bellis v. United States, 417 administrative (as in many civil law U. S. 85, 89–90 (1974) (“The privilege acy to unlawfully export electronics to countries in Europe and Latin Amer- Iran and North Korea in violation of against compulsory self-incrimination ica), the enforcement is simply a way should be ‘limited to its historic func- U.S. sanctions, to obstruction of jus- to regulate corporate conduct and, tice, and to making false statements tion of protecting only the natural indi- through that, commerce. vidual from compulsory incrimination to federal investigators. ZTE was fined For corporations, a criminal investi- through his own testimony or per- $287 million for its criminal conduct. gation and prosecution can be devas- sonal records.’” (quoting United States Its criminal fine, forfeiture, and civil tating, but — other than perhaps the v. White, 322 U.S. 694, 701 (1944)). fines, including a fine for violating the splashy headlines and the amounts Whereas constitutional rights are in- settlement terms, totaled over $2 bil- of Congressionally-created fines — a alienable for the individual, scholars lion. criminal prosecution does not differ have argued that whether such rights When President Trump suggested significantly from a regulatory pro- should apply to corporations needs he might intervene in Meng’s case, ceeding. No meaningful distinctions to be part of a balancing determina- competing headlines blared on CNN can be drawn between the way a com- tion. See, e.g., Peter J. Henning, “The (“Trump sets ‘terrible precedent’ by Conundrum of Corporate Criminal Li- pany may be punished as part of being crossing red line on Huawei case”) ability: Seeking a Consistent Approach held criminally liable for its conduct and FOXBusiness (“Trump has author- to the Constitutional Rights of Corpo- and the sanctions that may be applied ity to pardon Huawei CFO to close rations in Criminal Prosecutions,” 63 by a regulatory authority if Congress China trade deal: Judge Napolitano”). TENN. L. REV. 793, 801 (1996) (“The so decides. A company cannot go to John Demers, Assistant Attorney Gen- initial determination of whether a jail. Thus, the criminal prosecution of eral for National Security, was forced constitutional right should apply to a a company is simply another manifes- to weigh in at a Senate hearing, stat- corporate criminal defendant should tation of our regulatory structure. The ing that the Justice Department does be based on the fundamental prem- laws being enforced against corpora- “law enforcement. We don’t do trade.” ise that the corporation’s sole inter- tions are ultimately solely economic in He added: “We follow the facts and we est is protection from abuse of the nature and result predominantly in a vindicate violations of US law. That’s government’s power to investigate, financial penalty. The crimes are more what we’re doing when we bring those prosecute, and sanction illegal con- typically malum prohibitum, bad be- cases, and I think it’s very important duct.”). Henning argued that courts cause they are prohibited, rather than for other countries to understand that must “acknowledge[] that a corpora- malum in se, bad in themselves. Crim- we are not a tool of trade when we tion has no a priori claim to a specific inal antitrust, securities, and tax laws bring the cases.” Demers’ statements constitutional right, and its interests define malum prohibitum offenses revealed that the Justice Department can be outweighed by [other govern- that control the way commerce is con- found it important to be perceived as mental necessities] when the potential ducted. These factors make it more evenhanded. He asserted that Meng’s for abuse is not significant.” Id.
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