Building Transnational Corruption Cases

The session entitled Building Transnational Corruption Cases Original CAPI Publication:
consisted of a panel moderated by Karen Shaer, First Deputy This brief was prepared by the Center for
Director for the New York City Mayor’s Office of Criminal Justice. the Advancement of Public Integrity at
The panel featured Brendan McGuire, a Partner at WilmerHale and Columbia Law School. We can be reached
former Public Corruption Chief for the U.S. Attorney’s Office for at CAPI@law.columbia.edu.
the Southern District of New York; Evan Norris, Counsel at
CAPI would like the thank Henry Hagen,
Cravath, Swain & Moore and former National Security & CAPI summer research intern and
Cybercrime Chief for the U.S. Attorney’s Office for the Eastern Columbia Law School student, for his
District of New York; and Nicole Argentieri, a Partner at O’Melveny authorship of this brief.
& Myers and former Public Integrity Chief for the U.S. Attorney’s
Office for the Eastern District of New York. The panelists discussed the process of building complex transnational
corruption cases and key challenges facing prosecutors bringing such cases.
The panel first spoke about the core challenge of building transnational corruption cases: the availability and
obtainability of records, witnesses, and even criminal defendants internationally. While in domestic cases prosecutors
typically have broad authority to subpoena records and witnesses, internationally they must rely on complex
procedures, typically outlined in international treaties and subject to variation between foreign governments. The
request process is often slow, cumbersome, and unreliable, preventing prosecutors from controlling cases and forcing
them to rely on foreign governments which may be uninterested or even uncooperative. The panelists highlighted
three key strategies to overcome this challenge: 1) making the process personal instead of relying on the bureaucratic
process, 2) emphasizing reciprocity with foreign governments, and 3) building key relationships within foreign
prosecuting authorities.
To personalize the process, Evan Norris suggested supplementing diplomatic channels with personal engagement.
Key strategies include traveling internationally to meet personally with authorities reviewing document requests in
foreign countries, working directly with State and Justice Department officials processing requests from the U.S. side
to ensure they are completed quickly and comprehensively, and sharing significant information about prosecutions
with foreign authorities to show the significance of the prosecution. Sharing details of the case and explaining exactly
why information is necessary and how it will be used can help convince foreign authorities of U.S. prosecutors genuine
need for records and the importance of the case. However, the panel noted that prosecutors should be cautious not
to over-sell a case to their foreign counterparts and risk the foreign authority taking the prosecution for themselves.
Looking towards reciprocity, Ms. Argentieri discussed her history of collaboration with foreign governments,
discussing how sharing sensitive information with foreign authorities can not only help emphasize the importance of
a prosecution but lead to successful prosecution of areas of the case that fall outside U.S. jurisdiction. Panelists
recounted how a willingness to share documents back and forth encouraged collaboration and forthrightness between
U.S. prosecutors and foreign governments, and that U.S. prosecutors willing to assist foreign governments in small
ways up front could lead to large dividends down the road in the form of document production, witness availability,
and even extradition proceedings. The panel also emphasized the importance of prosecutorial discretion in
transnational cases, particularly in instances where foreign authorities might have strong interested in prosecuting
aspects of the case themselves. In those instances, sharing information between authorities and essentially splitting
prosecutions can result in more favorable results for both U.S. prosecutors and their foreign counterparts. Ultimately,
all the panelists agreed that it was preferable to successfully prosecute a significant element of a corruption-related
crime instead of risking the case as a whole by being too aggressive and running afoul of venue or jurisdictional
requirements.
Brendan McGuire underscored the theme of cooperation, explaining how long-term relationship building is critical
to successful transnational prosecutions. The panelists concurred that relationship building is particularly important
in corruption cases, which present unique jurisdictional challenges. While in some cases, such as terrorism
prosecutions, U.S. prosecutors have a clear mandate to prosecute extra-territorial conduct with strong international
support, corruption cases are sometimes perceived differently by U.S. prosecutors and foreign governments. What
U.S. Prosecutors might perceive as egregious violations might be perceived as problematic but not critical to foreign
authorities, making it less likely that they would allow U.S. prosecutors to pursue a case outside of U.S. territory.
Having relationships in place increases the likelihood that foreign authorities will accommodate U.S. prosecutors even
in cases which may be perceived as less pressing by such authorities. Such relationships also often pave the way for
foreign authorities to entertain expansive or unusual requests by U.S. prosecutors which might not otherwise be
entertained, such as production of interrogatory records or banking records that might typically be withheld.

Published: July 2019 |© 2019, Center for the Advancement of Public Integrity/Trustees of Columbia University
Terms of use and citation format appear at https://web.law.columbia.edu/public-integrity/about/terms-use.