By Kevin Snapp*It attracted a lot of attention when it was announced that Iranian-Turkish businessman Reza Zarrab, charged in federal court with conspiring to evade American sanctions against Iran, had added Rudy Giuliani and Michael Mukasey to his legal team, and that the two legal heavyweights had flown to Turkey to met with Turkish President Recep Tayyip Erdoğan on their new client’s behalf. They told federal prosecutors and the court that they would not be involved with Zarrab’s trial, but had been hired to explore a possible agreement between the Turkish and US governments resolving Zarrab’s case.
This was unusual, to say the least. In the U.S. criminal justice system, prosecutors and defense attorneys routinely bargain over charges and possible sentences, with the accused person agreeing to plead guilty rather than go to trial in exchange for the prosecutor’s reducing the number or severity of the charges or recommending a lenient sentence. The agreement is reviewed by the judge, who determines that the guilty plea is voluntary and there is evidence supporting the charge. But this was entirely different. Giuliani and Mukasey, as lawyers for Zarrab, were proposing to go over the heads of both the chief prosecutor and trial judge and negotiate between the U.S. and Turkey.
Since Giuliani is known to be a close associate and adviser of President Trump, and Zarrab is known to have had close ties with President Erdoğan and his political allies, the possibility of a negotiated “settlement” inevitably raises suspicions. Was Zarrab hoping to use his wealth and Erdoğan’s political leverage to avoid American justice? Or, from another perspective, could the U.S. treat Zarrab, who Turkey declares is innocent, like a hostage, exacting some favor from Turkey in exchange for his release? Giuliani and Mukasey are partners at major Manhattan law firms, but this is not the kind of situation lawyers normally put themselves in.
President Trump does have the power, via the Attorney General, to order a federal prosecutor to dismiss a prosecution, and the Constitution gives him the power to pardon Zarrab for any federal crimes he may have committed. But the Constitution requires that the President shall “take care that the laws be faithfully executed.” For a President to dismiss an ongoing federal prosecution against a citizen of another country based on a “deal” between the two governments is virtually unthinkable.
This is not the first time Erdoğan’s government has shown what might charitably be called a persistent misunderstanding of America’s constitutional system. Since 2014, Turkish ministers and spokespersons have repeatedly demanded the extradition of Fethullah Gülen, a Turkish imam and political ally-turned-antagonist of Erdoğan, repeatedly scolding the U.S. government for “harboring” a man they accuse of leading a criminal and seditious cult — but persistently overlooking the fact that Gülen is a permanent resident protected by U.S. law.
Until mid-2016 the Turkish government made no attempt to comply with the terms of the extradition treaty between Turkey and the U.S. Although it now claims to have filed an extradition request, it is doubtful that it complies with the treaty. The Turkish government has repeatedly taken the position that the President should hand over Gülen on demand as a favor to an ally, but it is clear from the treaty and U.S. law that he has no authority to do that. The treaty requires Turkey to present evidence meeting the standard that would justify an arrest in the U.S.– showing “probable cause” to believe Gülen committed an extraditable crime. Unless a federal judge certifies this standard has been met, the President cannot order Gülen extradited — and the President has no power over federal judges.
The idea of a “deal” for Zarrab reflects the same cynical disregard of America’s constitution and legal system, but American lawyers are involved, and one wonders why. Putting aside constitutional and political objections, if Zarrab’s freedom can be negotiated between the U.S. and Turkey, what is the role of a lawyer representing Zarrab? Sinan Ülgen, a former Turkish diplomat, suggested a possible quid-pro-quo: releasing Zarrab would “create good will in Ankara that Washington could use to advance its own regional agenda.” But such a “deal” would require no input from Zarrab.
It is well known that Erdoğan wants Zarrab released. Erdoğan told reporters he raised the issue with U.S. Vice President Biden during a meeting on the sidelines of the UN General Assembly on September 25, and Turkish Justice Minister Bekir Bozdağ told U.S. Attorney General Loretta Lynch last October that Zarrab’s prosecution was based on “no evidence” and he should be freed.
The likely reason for his concern is also well known. Although claiming he is concerned for Zarrab as a Turkish citizen, Zarrab was a key player in the corruption scandal that surfaced December 17, 2013, and nearly brought down Erdoğan’s government.
Although the scandal caused four ministers to resign, Erdoğan halted the prosecutions by reassigning and suspending prosecutors and investigators. Erdoğan claimed the prosecutions were an attempted coup by Gülen’s followers, and eventually all of the corruption charges, including those against Zarrab, were dismissed.
Nevertheless, many believe that although Gülen’s followers had infiltrated the police and judiciary (with the blessing of Erdoğan’s AKP party at the time), and intended to unseat Erdoğan by creating a scandal before elections were to be held, the allegations of corruption were substantially true. An alleged copy of the police investigative report was leaked, and although unsigned and unauthenticated, it was highly detailed and appeared genuine. It was part of the basis for the U.S. charges against Zarrab, and was used by the FBI to obtain a federal warrant for the seizure of Zarrab’s e-mails.
The U.S. has charged Zarrab with arranging fraudulent transactions to disguise violations of U.S. sanctions against Iran, while passing money through U.S. banks. The indictment also alleges massive bribes paid to members of Erdoğan’s government to facilitate Zarrab’s lucrative sanctions-busting monopoly. Erdoğan knows what is in the police investigative report, and Zarrab could confirm much of it; he may not know what is in Zarrab’s e-mails. If there is a trial, “dirty laundry” will be exposed. If Zarrab pleads guilty to selected charges, less might be made public, but to mitigate his sentence he might cooperate with investigators. To minimize the damage to Erdoğan, Zarrab needs to be released before he pleads guilty or is tried.
Besides the proposed negotiations between the United States and Turkey, there are reasons for private negotiations between Zarrab and Erdoğan. Before Erdoğan uses his leverage against the U.S. to help Zarrab, he would want to know what Zarrab has told investigators, what he might have to admit in a plea bargain, and what might come out in a trial. There might be things he would want to tell Zarrab secretly, and things he would want to tell the White House.
The need for secrecy is probably why attorneys were chosen as intermediaries, even though they would not be acting within an attorney’s usual role. As a pre-trial detainee, Zarrab can have visitors and arrange for telephone calls, but for security reasons, detainees’ conversations are not private — with one exception. Criminal defendants have a constitutional right to be represented by an attorney, and effective representation requires that attorney-client communications be confidential. The New York Metropolitan Correctional Center has special visiting rooms for confidential meetings with attorneys. Although the constitution only protects the confidentiality of a prisoner’s communications with his criminal defense attorneys, regulations of the MCC allow inmates to meet confidentially with any attorney who can show he or she is licensed.
So Giuliani and Mukasey could provide a secret communications channel among Zarrab, Erdoğan, and the White House, concealing their communications from the prosecutor, the judge, and even Zarrab’s trial lawyers. Attorneys are forbidden to employ attorney-client confidentiality for a criminal purpose, such as inducing a person to lie under oath, and Giuliani might have insisted that Mukasey, a respected lawyer from a different firm, accompany him as a witness to prevent accusations of impropriety. But there are things that can be said lawfully that can only be said secretly.
It is evident from the court filings that Giuliani and Mukasey wanted even the existence of this channel to remain secret, apart from their ethical obligation to inform the prosecution, and did not inform Judge Berman or file appearances as attorneys for Zarrab. When Judge Berman learned that Giuliani and Mukasey had been retained by Zarrab and visited Turkey, he directed them to file affidavits explaining their role. He originally ruled their affidavits could be filed under seal, but later ordered them unsealed, apparently finding that secrecy would be inappropriate.
Giuliani’s and Mukasey’s affidavits stated that the Attorney General and the U.S. Attorney had been “apprised on a confidential basis and in general terms of those meetings [with Erdoğan and Turkish officials] in advance,” adding that, “[a]lthough that confidentiality has been breached, senior U.S. officials have remained receptive to pursuing the possibility of an agreement ….” They commented that “one of those officials” with whom they spoke (it is ambiguous whether American or Turkish), “stated that out of necessity he has grown used to functioning in an atmosphere that includes inaccurate and illintentioned [sic] leaks.” (Responding to the implied accusation of “breaching confidence,” the prosecution stated, in effect, it had no obligation to keep this information from the judge and out of the court record.)
Against the wishes of Zarrab and his lawyers, the existence of this “back-channel” among Zarrab, the White House and Erdoğan has become known, although what passed through it remains secret. Nevertheless, Sinan Ülgen — well-connected in Turkish government circles — may have offered a clue. He suggested the U.S. might release Zarrab to create good will towards Ankara, inducing Turkey to be more forgiving of America’s “partnership” with the Syrian Kurds against ISIS. But what if the message had been framed differently? What if Giuliani conveyed a message from Zarrab to Erdoğan, that unless Erdoğan saved him from the threat of prison, he would cooperate with prosecutors and say what he needed to say? What if Erdoğan, via Giuliani, told the White House that unless Zarrab were released, Turkey would attack America’s Kurdish “partners,” spoiling the planned joint operation against Raqqa, or demand that America cease cooperating with the Syrian Kurds as a condition of its continued use of the airbase at Incirlik?
Erdoğan would not want it known that he was willing to make critical military decisions putting Turkish lives at risk predicated upon America’s dropping criminal charges against someone holding embarrassing information. Nor would Trump want it known that in releasing Zarrab he bowed to the demands of Turkey’s authoritarian leader, a dubious “ally” who covertly conspired to evade U.S. sanctions against Iran, supported foreign jihadi elements opposing Assad in the Syrian civil war, and turned a blind eye to ISIS recruitment and supply within Turkey.
Erdoğan has said he will raise the matter of Zarrab (and Gülen) when he meets with Trump next month. Will they — can they — arrange a “deal” without disclosing the real quid pro quo?[Kevin Snapp is a retired attorney and federal court law clerk living in Chicago.]