Friends don’t let friends investigate?
In public comments, Justice Department officials have stressed that a past lack of international cooperation was a major hurdle to pursuing many of the cases.
Despite years of questionable Russian activity in many places, “executing on U.S. requests for search warrants, and subpoenas, and interviews, and other legal process remained a tall order because there is a mismatch in our U.S. and foreign allies’ sanctions regimes,” Andrew Adams, the director of Task Force KleptoCapture, said at the conservative Hudson Institute in January. The exceptional multilateral cooperation now, he stressed, has greatly enhanced sanctions enforcement.
What’s not clear is whether prior to 2022 the Justice Department, or the White House for that matter, put enough pressure on other countries to cooperate. And in many Ukraine-related cases, such as that of some oligarchs, it’s not clear why the U.S. didn’t go ahead and indict people who weren’t in custody anyway, at least to send a signal.
Former U.S. officials — most of whom spoke on condition of anonymity because the topic involved sensitive legal issues and, in some cases, their previous employer — offered some theories:
It’s possible that U.S. intelligence agencies were watching the same target and asked the Justice Department not to act. The evidence collected may have involved methods that might not stand up in court, or prosecutors may have felt it wasn’t enough to indict. Prosecutors may have thought that, if they waited long enough, they could arrest someone should that person travel to a country cooperating with the United States. Some may not have wanted to indict on lesser charges even if they only had enough evidence for those. Plus, some prosecutors question the point of charging someone who is unlikely to ever land in U.S. custody — even if such name-and-shame cases can have symbolic value.
Several former officials said much of the department’s actions come down to a question of political will. But pursuing indictments also takes time, money and people — all finite resources. That latter point draws a lot of sympathy from former federal prosecutors.
“These cases take years. They take a lot of resources. A lot of these laws are complicated. They often involved classified information. And, at the end of the day, there may be no arrest. Are you going to take resources away from prosecuting violent crimes to do that?” asked Stephanie Siegmann, a former national security chief of the U.S. Attorney’s Office for the District of Massachusetts.
The Justice Department has over the past decade pursued several non-Ukraine cases against Russians, especially those involving cybercrime and interference in America’s 2016 presidential race, some of which fell under Special Counsel Robert Mueller’s purview. With rare exceptions, POLITICO did not include such cases in the 14 it deemed at least partially relevant to the war from 2014 through February 2022. That said, the level of international cooperation on those cases may have been easier to come by, especially if crime syndicates are targeting multiple countries.
In the past, another country may have felt less inclined to help Washington go after a person for violating U.S. sanctions if that other country didn’t have a similar sanctions statute. That concept of “dual criminality” matters because having parallel laws in two countries makes it easier to obtain evidence and extradite people.
Now, better-aligned U.S., British, and other European sanctions regimes have reduced the dual criminality hurdle.
Still, some foreign officials dismiss U.S. attempts to blame a lack of overseas cooperation for a dearth of past Ukraine-related prosecutions.
“When the U.S. really concentrates on getting someone extradited or prosecuting someone, it has a great record of getting countries to cooperate. There’s no reason why any of these cases should have been different,” a European official told POLITICO, speaking on condition of anonymity because the topic was so sensitive.
The former senior department official said that even prior to Russia’s full-scale invasion, the Justice Department was searching for ways to elevate the topic of sanctions evasion.
The official added, however, that one important ingredient for a successful sanctions campaign against Russia is to have cabinet members beyond the attorney general — especially the secretary of State — press foreign governments to cooperate with U.S. investigations. In other words, it needs to be a whole-of-government political priority.
Pressed for comment on its history of pushing other countries to cooperate on investigations, a State Department spokesperson sent a statement focused on its present activities. “We support Department of Justice legal attaché offices at U.S. missions around the world to ensure access to foreign law enforcement entities and judiciaries,” the spokesperson said, having been granted anonymity to discuss sensitive diplomatic matters.
Some former U.S. officials argue that the Treasury Department is the more important sanctions enforcer.
Treasury can levy fines on alleged violators; it also can impose new sanctions on people it believes are helping others evade sanctions, thus blocking their access to the U.S. financial system. Such efforts generally require meeting lower legal thresholds than criminal prosecutions.
Treasury has taken some such steps against suspected violators in the case of Russia and its war on Ukraine. But Treasury’s actions arguably lack the public impact of Justice Department moves, especially arrests and indictments, that can truly make wannabe culprits think twice.
“For every person who’s helping an oligarch evade sanctions who gets indicted, there’s a hundred more that are shaking in their shoes right now — it has a very powerful demonstration effect,” Browder said.