by Daniel S. Goldman, former Assistant U.S. Attorney for the Southern District of New York
On February 16, Special Counsel Robert S. Mueller III unsealed a 37-page indictment charging 13 Russian nationals and three entities principally with conspiring against the United States to infiltrate the 2016 election through a sophisticated and complex scheme that included the use of stolen identities of American citizens to surreptitiously influence and infiltrate social media sites such as Facebook, Instagram and Twitter. Although each United States intelligence agency has definitively stated, without equivocation, that Russia meddled in the 2016 presidential election, those agencies were constrained to explain how Russia did so with any detail because of legal restrictions on classified material. Yet for the first, time, this indictment provides extensive detail about how one aspect of this Russian meddling in the 2016 election occurred.
This indictment, however, likely will never see the inside of a courtroom. None of the defendants have been arrested and, assuming that all 13 of them remain in Russia, the United States is essentially powerless to extradite them and bring them to justice.
International extradition is a complex web of laws, treaties, and agreements. For the most part, the extradition of an individual residing in (or visiting) one country (the Resident Country) to another country that has charged that individual with one or more crimes (the Extraditing Country) is governed by treaty. Most democratic countries have treaties with each other to extradite individuals charged with crimes in another country as long as the two countries share “dual criminality,” which is the principle that the charged conduct violates a criminal law in both countries. There are, of course, additional exceptions, such as whether an individual is charged with a crime that could carry the death penalty; countries that don’t have the death penalty generally will not extradite anyone who may face the death penalty based on the charges against him or her. Once extradited, the doctrine of “dual sovereignty” prohibits a country from adding any additional charges to the original indictment.
In the United States, the extradition process goes through the diplomatic channels of the Department of State. Although each treaty may contain different protocols, the typical first step is to submit a provisional arrest warrant (PAW) to the Resident Country to request the arrest of the individual pursuant to charges in the United States. If the Resident Country executes the arrest, then the individual may challenge the extradition process in the courts of the Resident Country prior to extradition. Once the Extraditing Country makes a final decision to extradite the individual pursuant to its own procedures and regulations, the Resident Country relinquishes any control or involvement in the ultimate prosecution of the individual in the Extraditing Country.
A number of countries, however, including, for example, France, Germany and Japan, will not extradite their own citizens for prosecution in other countries regardless of the crime alleged. In those situations, or in the event that there is no extradition treaty or agreement between the Resident Country and the Extraditing Country, the Extraditing Country may file a “red notice” with Interpol, which lodges the arrest warrant in an international database that flags an individual charged with a crime whenever he or she crosses an international border. This is often done while the charges remain under seal so that the charged individual is not aware of the pending charges against him until he is flagged at a border crossing. If that occurs, the Extraditing Country has some time – often 60 days – to initiate the extradition process and the charged individual proceeds through the extradition protocols of the court system in the country where he or she was arrested under the process described above. (Of course, if the charged individual travels to the Extraditing Country voluntarily, that individual can be arrested and prosecuted without the need for extradition.)
Extradition with Russia
Perhaps not surprisingly given the tenor of diplomatic relations between the two countries, the United States and Russia do not have an extradition treaty. In addition, Russia is one of the countries mentioned above that will not extradite its own citizens. So, assuming that the 13 defendants charged in Mueller’s recent indictment remain in Russia, there is no possibility that they will be extradited to the United States. In 2013, as but one example where this process occurred, the U.S. Attorney’s Office for the Southern District of New York charged Alimzhan Tokhtakhounov – who was better known for being the alleged mastermind of the bribery scheme designed to fix the pairs figure skating competition at the 2002 Salt Lake City Olympics – with leading an international racketeering, money laundering and gambling enterprise. American prosecutors alleged that Tokhtakhounov was a “vor,” which means “thief-in-law” and is the equivalent of a mafia boss in Russian organized crime circles. Although nearly all of Tokhtakhounov’s co-defendants were arrested, including some who lived in Trump Tower, Tokhtakhounov continued to live openly and notoriously in Russia. There, he sat down for interviews with American media outlets and even appeared as a guest at the 2013 Miss America pageant presided over by none other than Donald Trump.
In recent years, Russia has increasingly made extradition difficult even for Russian nationals arrested on American charges in other countries that do have extradition treaties with the United States. The first high profile example of this was the case of Viktor Bout, a Russian national who was arrested in 2008 on terrorism charges out of the Southern District of New York. Russia intervened on Bout’s behalf and argued to the Thai courts that the charges were political in nature and that, as a result, Bout should not be extradited to the United States. Initially, the Thai criminal court agreed with Russia and denied Bout’s extradition. The United States appealed that decision and ultimately, more than two years after his arrest, the Thai high court reversed the lower court’s ruling and allowed for Bout’s extradition to the United States, where he was tried and convicted of conspiring to kill Americans, among other charges.
More recently, Russia has developed a new tactic to prevent its citizens from being extradited from other countries to the United States, particularly in hacking cases. In several of those cases, after a Russian citizen has been arrested pursuant to a PAW from the United States in a neutral country, Russia has itself filed charges against that same individual and requested extradition back to Russia. Although the Russian charges pale in seriousness to the American charges and Russia’s extradition request post-dates that of the United States, this tactic can be effective because countries generally prefer to extradite individuals to face charges in their own country rather than another foreign country.
The Mueller Indictment and Extradition
With this backdrop, and particularly considering the political nature of the charges in the Indictment, one can surmise that Mueller understood that the only way to arrest and prosecute any of the 13 defendants would be to arrest them in the United States. Although the Indictment details travel to the United States by some of the defendants – albeit using fraudulent means in several instances – Mueller and his team likely recognized that future American travel was unlikely in light of the overt nature of his investigation into Russian meddling in the 2016 election.
Mueller could have chosen to file the Indictment under seal, lodged a red notice, and waited for any of the 13 defendants to travel outside of Russia, a far more likely scenario than any of them traveling to the United States. But even assuming the Russian government did not alert the defendants to the red notice against them – which is unlikely – Mueller and his team would be staring down the barrel of a prolonged extradition proceeding against non-governmental actors that would usurp time and resources without any guarantee of success.
So why unseal an Indictment charging 13 people with interfering in the 2016 election without any legitimate hope of bringing them to justice? I see two principle reasons.
First, this Indictment explains in great detail the extensive and sophisticated nature and scope of Russia’s “information warfare” that infiltrated the 2016 election, which had not previously been publicized. Part of the Special Counsel’s mandate is to investigate and uncover any and all Russian involvement in the 2016 election, and this Indictment, which provides the first definitive explanation for at least one way that Russia meddled in the election, will serve as the document of historical record as to this aspect of Russia’s intervention in the election. That is an important public service, regardless of whether anyone ultimately goes to jail because of it.
Second, Mueller has been under constant attack from the President and his allies about the legitimacy of his investigation. The evidence outlined in this lengthy Indictment, explained in unusually painstaking detail, demonstrates for the first time in black and white that Russia did, in fact, meddle in the 2016 election. And while there are no allegations of a conspiracy to do so with any Americans (more commonly referred to as “collusion”), those who refuted the intelligence agencies’ unequivocal declarations that Russia interfered in the election no longer have a valid basis to do so. Mueller has enhanced the legitimacy of the Special Counsel’s role and mandate through these charges, and the focus now moves from whether there was interference by Russia in the 2016 election to whether and to what extent any Americans knowingly conspired with Russians to do so. To Mueller, that is undoubtedly a worthy cause.
*Daniel S. Goldman spent 10 years as an Assistant U.S. Attorney for the Southern District of New York, where he was Deputy Chief of the Organized Crime Unit and Senior Trial Counsel in the Securities and Commodities Fraud Unit. He has provided legal commentary on MSNBC and RNN/FIOS1.