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Should Trump's Foreign Policy Affect Criminal Prosecutions?
Business has gone global. So too has business-related crime. In the interconnected business environment, white-collar criminal investigations and prosecutions frequently present cross-border issues and affect U.S. foreign relations. Indeed, in some recent high-profile cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as one of the tools in its foreign policy arsenal. Allowing these foreign relations implications to influence the prosecutions of individuals would seem to violate our notions of fairness and due process. Because corporate criminal enforcement, however, is far more regulatory or policy-oriented in nature, foreign relations perhaps can be seen as a legitimate consideration in such criminal prosecution decisions.
Foreign Corrupt Practices Act (FCPA) investigations, sanctions enforcement, and prosecution of economic espionage by design deal with international issues. Even for cases brought under laws that do not necessarily implicate cross-border issues, complex fraud (LIBOR and FX manipulation conspiracies), banking crimes, and money laundering enforcement, foreign relations may be implicated because of the nationality or location of the defendants. Because enforcement of the federal criminal code abroad or against foreign individuals and entities has an effect on foreign states, such cases have an impact on the relationship between the United States and other countries. For example, the recent arrest of Meng Wanzhou, the CFO of China's Huawei and daughter of Huawei's influential founder, made international headlines. Charges against Meng, Huawei, and ZTE, another Chinese telecommunications equipment maker, have significantly affected America's vital and delicate relationship with China.
President Trump has linked these cases directly to the ongoing trade negotiation with China, asserting that Huawei and ZTE may be included in the trade deal and that he would consult with Attorney General William P. Barr before acting. This suggestion — that criminal prosecutions may be influenced by U.S. foreign policy interests — was immediately criticized by some legal experts. See, e.g., Phillip Bantz, “What Happens If Trump Intervenes in the DOJ's Case Against Huawei?,” Corporate Counsel (Dec. 12, 2018) (http://bit.ly/2UNjGMO) (arguing that President Trump intervening in the Huawei and Meng prosecutions would send a bad message to global businesses). Unfortunately, President Trump and critics have failed to tease out the difference between foreign policy influencing the prosecution of a living, breathing human being like Meng and those of state-created corporate entities such as Huawei and ZTE. Comparing the impact of the Executive's intervention in each of these prosecutions, helps illustrate why individual and corporate prosecutions should be treated distinctly.
Individual v. Corporate Rights
Individual criminal prosecutions implicate life and liberty interests that are strictly protected by due process. Some due process rights protect human dignity — such as double jeopardy protections which allow individuals to avoid the “continuing state of anxiety and insecurity” if they had to fear a second trial for the same conduct. Green v. United States, 355 U.S. 184, 187 (1957). Similarly, due process protections enhance society's trust of the criminal justice system. Society's knowledge that criminal defendants are treated evenhandedly strengthens their belief in and support for the rule of law. The opposite — providing disparate treatment to the wealthy, powerful, or well-connected within the criminal justice system — undermines the rule of law and societal confidence in criminal justice. In the same vein, utilizing the criminal justice system to punish individuals — or to forgive them — because of political considerations strikes most Americans as fundamentally unfair. This rejection of political prosecutions is reflected in extradition treaties that allow the United States and its treaty partners to deny extradition requests for “political offenses.” President Trump's suggestion that Meng's prosecution may be a part of the political negotiations could lead to Canada rejecting the U.S.'s extradition request. As Harvard Law Professor Mark Wu stated: “Any perception that her arrest is meant to offer political leverage in upcoming trade negotiations could jeopardise the success of the ongoing extradition hearings in Canadian court.”
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