A protester holds a sign outside the Supreme Court as the hearing for Huawei Technologies Co. Chief Financial Officer Wanzhou Meng continues at the Supreme Court in Vancouver, British Columbia, Canada. (Photographer: James MacDonald/Bloomberg)

Trump Can Stop Huawei Extradition, But Not Without Consequences

(Bloomberg) -- President Donald Trump thinks he might boost a China trade deal if he stops prosecutors from extraditing a Huawei Technologies Co. executive, but he risks undermining the U.S. justice system and endangering Americans abroad -- not to mention angering Congress.

Trump suggested he’d intervene in the case against Huawei Chief Financial Officer Meng Wanzhou if he thought it would impact trade talks with Beijing in an interview with Reuters on Tuesday. The remarks drew a backlash from some U.S. lawmakers and former government officials, and raised alarms in foreign capitals.

Trump Can Stop Huawei Extradition, But Not Without Consequences

Trump said he’d base his decision on national security concerns, adding that his ongoing negotiations with China over “what will be certainly the largest trade deal ever made” were “a very important thing.” Meng, accused of conspiring to defraud banks in a manner that put them at risk of violating U.S. sanctions on Iran, was arrested in Canada on the same day Trump met with Chinese President Xi Jinping for tense trade talks.

As the chief executive, the president has the power to intervene in the case, former federal prosecutors say. But blocking prosecutors from extraditing Meng could provoke other countries to detain U.S. citizens as leverage in political and economic negotiations and erode U.S. standing in future extradition requests, they warned.

“There’s action the president could take, but it would have at a minimum significant political ramifications,” said Brian Michael, a former federal prosecutor who is now a partner at the King & Spalding LLP law firm.

‘Dangerous Road’

Trump would mostly likely intervene by ordering the State Department not to go forward with the extradition, Michael said. Once extradition happens, it would be much more difficult, unusual and messy for the White House to try to control the Justice Department’s prosecution, he said.

Administration officials on Wednesday downplayed Trump’s remarks. Commerce Secretary Wilbur Ross told reporters they were “drawing a lot of conclusions from a potential decision that he has yet to make.”

But lawmakers expressed concern. Senator Chris Van Hollen, a Maryland Democrat, cautioned against linking Meng’s arrest with Trump’s trade talks. “It is a very dangerous road to go down, if we were to get into a world where people were detained based on a trade and tariff war rather than on the law,” he said in an interview.

Trump Can Stop Huawei Extradition, But Not Without Consequences

Senator Marco Rubio, a Florida Republican, said it would be “a terrible mistake” for Trump to intervene in the case. “It’s unrelated to trade policy.”

Canada Case

Trump’s comments could factor into the legal proceedings in Canada, where Meng faces an extradition hearing before any handover to U.S. authorities. She was released on bail Tuesday.

“Meng’s lawyers could use Trump’s remarks as evidence to argue that the prosecution against her is politicized,” Robert Currie, a law professor at Dalhousie University in Halifax who specializes in extradition law, said in an email. Meng’s lawyers could ask for a stay of proceedings or ask Canada’s justice minister to not hand her over, he said.

Canadian Foreign Minister Chrystia Freeland also acknowledged Trump’s comments could affect the case. “It will be up to Ms. Meng’s lawyers whether they choose to raise comments in the U.S. as part of their defense of Ms. Meng,” she said at a news conference Wednesday.

Spy Swaps

Typically, presidents have only weighed in on legal cases with national security elements, like freeing spies as part of a prisoner swap. In 2010, President Barack Obama approved trading a group of Russian agents for four individuals convicted of spying for the U.S. or U.K. in Russia.

John Moscow, a former prosecutor who’s now an attorney at Lewis Baach Kaufmann Middlemiss, said Trump would be within his power to intervene in the case but shouldn’t publicly muse about the decision.

“The interests of the criminal justice system and those of the U.S. as a whole may on occasion conflict, and the president may have to make a decision,” Moscow said. “But if the executive decides to modify department policy in the interest of foreign affairs, that decision shouldn’t be broadcast."

Trump’s propensity to ignore norms has already created headaches for the Justice Department.

The defense team for the man who used a truck to kill eight New Yorkers with a rented pickup truck in 2017 cited a Trump tweet calling for the death penalty in his case, arguing the president’s pronouncement meant the Justice Department couldn’t make a fair decision about whether to seek his execution.

Lawyers for AT&T Inc. and Time Warner Inc. argued during the Justice Department’s challenge of their merger that Trump’s public comments suggested the White House could be interfering in the antitrust review.

‘Not a Tool of Trade’

“The Justice Department is law enforcement, we don’t do trade,” John Demers, the assistant attorney general of the department’s national security division, said Wednesday during a Senate Judiciary Committee hearing. “We are not a tool of trade when we bring the cases, and that’s what we do when we see them through to their conclusion.”

Canadian Prime Minister Justin Trudeau -- whose government is assisting the U.S. in the effort to extradite Meng -- rejected the idea of using the arrest as leverage on Wednesday.

Trump Can Stop Huawei Extradition, But Not Without Consequences

“Regardless of what goes on in other countries, Canada is and will always remain a country of the rule of law,” Trudeau said.

Matthew Miller, a Justice Department official during the Obama administration, says Trump’s proposal could cause allies and partners to stop cooperating on international investigations and extraditions. Adversaries could bring unjustified claims against U.S. citizens to gain leverage in political or trade negotiations, he said.

“It sends a message to foreign governments they don’t have to go through the regular judicial process and leave things to the work of independent prosecutors and judges,” Miller said.

The Justice Department’s impartial reputation helped persuade Thai authorities to turn over Russian arms dealer Viktor Bout in 2010 despite political pressure from the Kremlin, Miller said. And multiple administrations used the norm of non-interference to justify not allowing the fate of convicted Israeli spy Jonathan Pollard to enter into Middle East peace talks.

Intervening in Meng’s case “would be completely outside any acceptable norm,” said Lisa Monaco, Obama’s homeland security adviser and a former federal prosecutor who led the Justice Department’s national security division. “It would prompt a significant confrontation with the Justice Department and the prosecutors there.”

Chinese Perspective

Others warn that even if Trump intervenes, Chinese negotiators will look at the posture Trump is taking toward the company as a whole -- not a single individual.

“The Chinese don’t care about Meng; they care about Huawei,” said Derek Scissors, a China expert at the conservative American Enterprise Institute. “We can’t really get a better deal with China unless we enforce U.S. law without hesitation.”

Trump Can Stop Huawei Extradition, But Not Without Consequences

The debate over Huawei also echoes Trump’s flip-flop on U.S. punishment of another Chinese telecoms equipment maker accused of violating Iran sanctions, ZTE Corp. In May, he reversed a ban on the company’s U.S. business dealings at Xi’s request; Congress responded by prohibiting federal agencies from purchasing telecommunications equipment made by ZTE or Huawei.

Paul Triolo, who focuses on global technology at Eurasia Group, said lawmakers will push back hard if Trump intervenes in the Huawei case. “It worked once, but the second time around will be a hard slog, and Trump has little political capital left,” he said.

Ross on Wednesday said that “so far” the Chinese were interpreting Meng’s arrest as a law enforcement action unrelated to the trade talks. He also said that Trump’s intervention to help ZTE wasn’t necessarily a precedent “for all time.”

“Let’s see what he actually decides,” Ross said. “Let’s see where we go from there.”

©2018 Bloomberg L.P.