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By: Tom & Karina On: August 8, 2017 In: Evidence Taking, International Litigation Comments: 0
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Even before the 2016 Presidential Election, the FBI was investigating the Trump Campaign for alleged inappropriate financial connections with Russia.[1] After the election, Trump’s campaign manager, Kellyanne Conway, stated “with categorical certitude that no one involved with the Trump Campaign had any contact with Russians trying to influence the election.”[2]

The first hint that there were cracks in the story occurred when Attorney General Jeff Sessions recused himself from the Trump Campaign investigation. This prompted the acting AG to appoint former FBI Director Robert Mueller as special counsel to oversee the probe into alleged connections between the Trump Campaign and the Russians.[3]

More recently, the President’s son, “Donald Trump Jr., and former Trump campaign chair Paul Manafort have reached an agreement with the Senate Judiciary Committee” to provide closed door testimony on how the Trump Campaign operated.[4] President’s son-in-law and close personal advisor, Jared Kushner, is also now prepared to give adverse testimony.[5]

Will we ever get the full details concerning the relationship between the Trump Campaign and the Russians? Hard to say; after all who knows if we ever really got the full details concerning the assassination of President Kennedy?

But more generally, suppose some of the crucial witnesses or documents are located in Russia. Can Mueller or the Senate access this evidence? The short answer is yes if Mueller or the Senate request judicial assistance from a court in Russia and if the Russian court grants the request.[6] But the devil is in the details of such requests.

Does Evidence Sought Pertain to a Civil or Commercial Matter?

Before judicial assistance can be requested, one must first determine if the evidence sought in Russia pertains to a civil or commercial matter. The US legal system takes the view that all non-criminal investigations or trials are governed by civil law. In contrast, civil law countries, including Russia[7], take a more narrow and nuanced view of the scope of civil law.

Russia has a separate code regulating civil transactions[8] and governmental agencies.[9] Thus under Russian law it is possible a Congressional subpoena or subpoena from a special counsel may be deemed the realm of administrative law rather than civil law. This distinction is important because it determines the procedure by which evidence in non-criminal cases is taken abroad.[10]

Because treatises on Russian law are limited, we cannot definitively determine if Russia would hold that an administrative (e.g., a Senate or a special prosecutor) subpoena falls under Russian civil or administrative law.  Therefore, we analyze both situations.  But from a practical point of view, as will be discussed, obtaining judicial assistance from a Russian court is unlikely to succeed pursuant to either procedure.

Procedures for Executing an Administrative Subpoena under Civil Law

Let’s assume that under Russian law, an administrative subpoena falls under the civil law umbrella. Both Russia and the US are members of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (23 U.S.T. 2555) (hereafter the Hague Evidence Convention). The Hague Evidence Convention defines the procedure by which judicial assistance to take evidence in Russia is requested.

The first step to obtain evidence is to draft a Letter of Request addressed to “the appropriate judicial authority” in Russia. The forum court judge must execute the Letter of Request after which it must be translated into Russian and transmitted to the Russian Central Authority (CA).

The CA will review the Letter of Request for compliance with the Evidence Convention and, if appropriate, will forward the Request to a court having jurisdiction over the witness. That Russian court will hold a hearing on whether to execute the Letter of Request.  The Request may be executed all or in part – some courts “blue pencil” the requested evidence — and the court will set a date for the Letter’s execution.

In theory, the evidence requested (documents or a deposition) are obtained on the date of execution of the Letter of Request. However, the reality is that, since 2003, the Russian CA has been a non-functioning black hole into which requests to take evidence fall, but are never acted upon.[11]

Procedures for Executing an Administrative Subpoena under Administrative Law

Now let’s assume that under Russian law an administrative subpoena is handled pursuant to administrative law procedures. The scope of the Hague Evidence Convention is limited to civil and commercial matters. Therefore, given the above assumption, the Hague Evidence Convention does not apply and litigants must resort to the procedural stand-by, the Letter Rogatory.

Like a Hague Letter of Request, a Letter Rogatory is drafted from the perspective of and executed by the forum court. It is then transmitted to the Russian Ministry of Foreign Affairs via diplomatic pouch.[12] The Russian Foreign Ministry will forward the Letter Rogatory to various administrative and judicial bodies before it is then forwarded to a court having jurisdiction over the witness.

Again there will a hearing at the conclusion of which the court will set a data for the execution of the Letter Rogatory.  At this point, no one will be surprised to learn that letters rogatory also fall into the black hole and are never acted upon. Research revealed one decade-old report observing that Russia did execute a Letter Rogatory for arbitration.[13] 

Conclusion

The bottom line is that neither the US Senate nor Mr. Mueller are likely to obtain any evidence located in Russia regardless of whether they use the Hague Evidence Convention or a formal Letter Rogatory.

Let’s suppose both the Russian CA and the Russian Foreign Ministry suddenly become functional. Would the US Senate or Mr. Mueller now be able to obtain evidence in Russia? Perhaps, but probably not because the documents may be classified or there may be issues of diplomatic immunity. Just as the US considers certain information to be classified (disclosure of which can lead to jail time), so too do the Russians.

This classification applies not only to the information, but how the information was obtained. Thus it is unlikely Russians will turn over information on Trump’s alleged collusion because it would require disclosure of the classified means by which Trump was contacted. In contrast to modern notions of classified information, diplomatic immunity dates from the time of Ancient Greece and Rome.[14] The width and breath of diplomatic immunity vary within the diplomatic community; even ambassadors do not receive absolute immunity for all activities. But, diplomatic immunity adds another non-disclosure layer to evidence in Russia.

Even under the best of circumstances any investigation into Trump’s activities with Russia is unlikely to unearth evidence in Russian control. To further their investigation, the Senate and Mr. Mueller will only be able to rely on evidence in the control of the US and its allies.

If you require assistance obtaining evidence abroad, contact LLS today to learn how we can assist you.

 

Notes

[1] Eric Lichtblau and Steven Lee Myers: Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia. NY Times OCT. 31, 2016 (internet edition).

[2] Ryan Koronowski: 20 Times Team Trump Denied Any Connections to Russia. Think Progress July 10, 2017; https://thinkprogress.org/timeline-trumpworld-russia-connection-denials-102adc089438 (25 July 17).

[3] Rebecca R. Ruiz and Mark Landler: Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation. NY Times MAY 17, 2017 (internet edition).

[4] Bonnie Kristian: Trump Jr. Makes Deal for Private Senate Testimony. The Week

July 22, 2017; http://theweek.com/speedreads/713821/trump-jr-makes-deal-private-senate-testimony (25 July 17).

[5] Greg Sargent: Jared Kushner Just Threw Donald Trump Jr. Under the Bus. Bigly. Washington Post July 24, 2017 (internet edition).

[6] This paper assumes that the Senate or Mueller would be issuing a non-criminal subpoena.

[7] The Robbins Collection: The Common Law and Civil Law Traditions. University of Berkeley;  https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html (25 July 17).

[8] THE CIVIL CODE OF THE RUSSIAN FEDERATION (Part One No. 51-FZ of November 30, 1994,Part Two No. 14-FZ of January 26, 1996, Part Three No. 146-FZ of November 26, 2001 and Part Four No. 230-FZ of December 18, 2006); see also Christopher Osakwe: Anatomy of the 1994 Civil Codes of Russia and Kazakstan: A Biopsy of the Economic Constitutions of Two Post-Soviet Republics. 73 Notre Dame LR: 1413 (2014)(unlike other civil law countries that have separate codes for civil and commercial law, the Russian Civil Code Covers both civil and commercial matters –and even allows for plaintiffs to bring tort actions against the government).

[9] Federal Law No. 196-FZ of December 30, 2001 of the Enactment of the Code of Administrative Offences of the Russian Federation.

[10] “The Russian Federation does not permit the taking of voluntary depositions of willing witnesses in civil and commercial matters.” Travel.State.Gov: Russia. November 15, 2013. https://travel.state.gov/content/travel/en/legal-considerations/judicial/country/russia-federation.html (25 July 17).

[11] Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1238 (Fed. Cir. 2010) (concerning the Russian CA’s handling of service of process); United States v Boris Stratievsky, 05 CR 483-1 (ND IL 2005) (Declaration of Edward A. Betancourt concerning the Russian CA’s handing of Letters of Request to take evidence).

[12] The Department of State requires a $2,275 handling fee for this service.

[13] Glenn P. Hendrix: International Judicial Assistance from American courts in Russian litigation and Arbitration Proceedings. Presented at the Third Local CIS Counsel Forum, St. Petersburg, Russia June 27, 2008.

[14] Department of State: ; https://www.state.gov/documents/organization/150546.pdf (27 June 17).

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