‘Handing Over’ McFaul Is Not in the Cards

(Bloomberg Opinion) -- The Helsinki meeting between President Donald Trump and his Russian counterpart, Vladimir Putin, has generated much outrage. Wild claims are flying back and forth. But there should be one source of comfort: U.S.-Russian relations are governed by agreements created by previous governments; not even Trump and Putin, known for their disrespect for the rules, can veer too far from those obligations. 

In the aftermath of the summit, Michael McFaul, the former U.S. ambassador to Moscow, tweeted that Putin is “seeking to arrest” him. A number of U.S. legislators posted Tweets protesting against “turning over” McFaul to Russia or “giving him over to Russian operatives.” 

The furor was caused when the Russian president suggested that Special Counsel Robert Mueller, who is investigating allegations of Russian election meddling, use the 1999 U.S.-Russian mutual legal assistance treaty to request that Russia interrogate the 12 alleged GRU hackers (and, presumably, also the employees of a St. Petersburg troll farm mentioned in a previous Mueller indictment). He offered to let U.S. investigators come to Russia and witness the questioning. As a quid pro quo, he asked the U.S. to question “officials, including the officers of law enforcement and intelligence services of the United States whom we believe are — who have something to do with illegal actions on the territory of Russia” and let Russian investigators attend the interrogations.

McFaul’s name didn’t come up at the Trump-Putin press conference in Helsinki, but Alexander Kurennoi, spokesman for the Russian Prosecutor General’s Office, later said the ex-ambassador was on a list of people the agency wanted to question in the U.S.

However, Putin did specifically mention Bill Browder, the American-born U.K. citizen behind the Magnitsky sanctions laws in the U.S. and a number of other countries. Putin claimed Browder earned $1.5 billion tax-free in Russia, transferred it out of the country and made a $400 million contribution to the Hillary Clinton campaign. Putin later said he meant $400,000. Browder denies donating anything to Clinton or any other politician. He’s irked the Kremlin by spending years trying to show that Putin cronies were responsible for the massive corruption uncovered by his lawyer, Magnitsky, which resulted in his imprisonment and death. The fact that Browder isn’t even an American citizen or resident now didn’t seem to factor into Putin’s thinking. Browder tweeted after the summit that Putin “wants to swap” him for the 12 indicted GRU officers.

The legal assistance treaty was ratified by the U.S., after some hesitation, in 2002, when Putin was a situational post-9/11 ally. Under it, the Russian Prosecutor General’s Office and the U.S. Attorney General can exchange requests for action and information in criminal cases. The treaty specifies the exact form of the requests. It also says each of the countries can only ask the other one to question somebody, not conduct the questioning itself. It can, however, also send its representatives to the interrogation. “In accordance with procedures used in the Requested Party,” — that is, in the U.S. if it’s receiving Russian investigators — the visitors can be allowed to ask questions directly or through the receiving country’s interrogators.

There’s no question under the treaty of “handing over” a witness or suspect to the other country for questioning, much less of an arrest, whatever Putin would like. Russia and the U.S. don’t have an extradition treaty. Under the mutual legal assistance treaty, even a suspect in custody in one of the countries can only be sent to the other one for questioning with the suspect’s own consent.

Still, Putin’s gambit cleverly posits an equivalency between Russian state actors who credible evidence suggests interfered with the U.S. election, a U.S. ambassador against whom there is no plausible case and a non-U.S. citizen who is a harsh critic of the Putin regime. 

On Wednesday, Trump’s press secretary Sarah Sanders said Trump would “meet with his team” to decide what to do about what the president had called “an incredible offer” at the press conference. There’s nothing wrong with holding such a consultation to discuss — perhaps with Mueller’s team, too — what the treaty allows and what it doesn’t.

It’s likely that the testimony of the GRU suspects would be worthless. Meanwhile, questioning any U.S. citizens (never mind a former top diplomat) at Russia’s request and with Russians present will inevitably produce a political fallout. Such a trade-off would only be worth considering if the Mueller team advocated it, which is highly unlikely.

If Trump is worried about saving face with Putin, the legal assistance treaty gives him an easy way out. The U.S. can turn down the Russian request on the grounds that its execution “would prejudice the security or other essential interests” of the U.S. Then, it only needs to state that reason to the Russian prosecutor’s office.

The Kremlin has used mutual legal assistance treaties to go after some of its opponents, including Browder (though the U.K. has refused the requested help in his case). And while the U.S. ratified the treaty to make it easier to go after terrorists and money launderers, U.S. law enforcers soon found out that Russia often cooperated reluctantly. Duncan DeVille, the former U.S. prosecutor who obtained testimony in Russia under the regime that preceded the treaty (and was similar to it) — and even got to ask his own questions after Russian prosecutors gave up on retransmitting them as the rules dictate — wrote in 2002:

In the two instances in this case when I obtained witness testimony in Russia, the Russian authorities were not always cooperative. The Russian government is very "personality driven" in that results depend greatly upon the individual with whom one is dealing. This is very different from the U.S. system, which has an institutionalized bureaucratic system in which the individual bureaucrat with whom one deals is not as important to success as is the overall power and efficiency of the given agency.

It is precisely because of these differences, however, that the U.S. should stick to the letter of the law, and in this particular case, the treaty. Even under Trump, it is a law-governed state. If U.S. legislators believe putting U.S. and Russian laws on an equal footing is damaging to U.S. interests, as it may well be, they should repeal the treaty. Cooperation on individual terrorism and organized crime cases would still be possible, as it was before the agreement was signed. But any further “incredible offers” from Putin would lose the legal basis they have today.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Leonid Bershidsky is a Bloomberg Opinion columnist covering European politics and business. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.

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