Jonathan Drimmer explains how the US Department of Justice seeks to get what it wants in enforcement and investigations abroad


When it comes to international law enforcement efforts involving the US Department of Justice (DoJ), what you see is not what you get.



Over the past decade, there has been a dramatic increase in cross-border corporate investigations and prosecutions initiated by the DoJ, or in which the DoJ's assistance is sought. While the formal legal mechanisms that frame such efforts are publicly known, the key to whether those processes are effective lies below the surface. Without informal assistance between and among foreign governments, the official procedures involving corporate investigations are just hollow formalities, making it critical for companies and their executives involved in any investigation involving the DoJ to understand how the game is really played.



Tip of the iceberg

International law-enforcement efforts and cross-border investigations involving corporations and corporate officers are on the rise. The reasons for that trend include: new domestic laws targeting overseas conduct; the growth of multi-national corporations; technological advances; new scrutiny of international money flows; and the prominent use of offshore locales for tax advantages. Because of these factors and others, interactions between the DoJ, the primary agency that prosecutes US cases, and its foreign counterparts the world over, have grown exponentially.



The information available publicly about those interactions is limited to formal processes - international agreements, conventions, treaties, official requests for assistance and other openly acknowledged legal procedures. While these formal mechanisms provide a framework for intergovernmental contacts, they represent a fraction of the contacts in cases traversing international borders. What makes those formal processes effective, or ineffective, are the informal, behind-the-scenes interactions between the DoJ and its foreign counterparts, which differ from country to country and even from official to official.



Evidence gathering

As an example, letters rogatory are the traditional method through which the DoJ and its counterparts have sought foreign-held evidence or testimony. Largely because letters rogatory are a cumbersome process involving numerous government institutions, and are premised on international comity, the US government has recently entered into scores of mutual legal assistance treaties (MLATs). As bi-lateral treaties, MLATs operate more efficiently than letters rogatory and are obligatory in nature.



While MLATs and letters rogatory are the primary mechanisms through which the DoJ obtains or provides evidence abroad, they are only as effective as the informal assistance provided in connection with any given request. For instance, a helpful foreign official can share or identify evidence gathered in a parallel investigation, so the prosecutor knows exactly what to request, whereas an unhelpful foreign official would not.



A supportive foreign official might provide assistance in navigating the legal system, advising how to overcome potential obstacles and pushing for prompt responses to requests, whereas an unhelpful official would allow a prosecutor to succeed or fail on their own, or put the request in a drawer to linger. A co-operative official can correct minor defects in a request, or interpret it broadly to encompass the maximum amount of helpful information, whereas an unaccommodating official could interpret the same request narrowly, refuse it because of non-material errors, or even invent problems that do not truly exist.



A helpful government will allow couriers to bring evidence to foreign courts, whereas an unhelpful government will refuse to allow evidence to leave its borders. In short, the effectiveness of the formal legal processes depends wholly on the informal co-operation between the DoJ and its foreign counterparts that occurs out of public view.



And where the formal bilateral processes prove ineffective, the degree of co-operation often dictates whether alternative, unilateral procedures are employed. For instance, US prosecutors involved in corporate investigations can seek subpoenas against multi-national companies doing business in the US, asking for the production of records within the company's control wherever they are held - in the US or elsewhere. That avoids MLATs, letters rogatory, any need for foreign legal assistance and, typically, whatever foreign laws may otherwise apply.



Yet foreign governments can view such unilateral actions as substantial breaches of sovereignty - the US is using its compulsory domestic process to demand evidence held abroad. A helpful foreign government will not object, or might even suggest such a subpoena, if it believes the traditional process would be slow or ineffective, whereas an unaccommodating government would refuse or raise diplomatic objections. Informal co-operation, once again, is crucial to the formal process.



Obtaining custody

It is no different for obtaining custody of defendants abroad, in which extradition is the dominant formal process. Like MLATs, the extraditions are governed by treaties. But as with letters rogatory and MLATs, the formal extradition process is only as effective as the informal assistance involved.



For instance, in the absence of an extradition treaty, countries retain total discretion in considering extradition requests. Where extradition treaties do exist, a helpful government can suggest specific individuals to extradite, draft extradition requests to ensure they are granted, offer advice on evidence necessary to present with the request and ensure things are pursued quickly. The DoJ or its counterpart can interpret underlying crimes narrowly, and outside a treaty's scope, or broadly and within the treaty's terms.



If a country is reluctant to extradite, prosecutors might raise various technical or substantive objections under the treaty or larger legal system, or refuse to enforce a provisional arrest and allow the subject to flee. As with evidence gathering, despite the formal extradition process, the degree of co-operation between countries becomes paramount.



And similar to corporate document subpoenas, a helpful government can assist with alternative procedures where extraditions are impossible or impractical. For instance, it can initiate deportation or expulsion proceedings, thereby achieving an extradition through another means. Or it can help with other measures, such as luring, where a defendant is enticed into a certain jurisdiction, or irregular rendition, where the defendant is brought to a locale forcibly; if co-operation is absent, foreign governments tend to object vociferously to such obvious breaches of sovereignty.



What can a company do?

For in-house counsel and corporate executives, as international law enforcement efforts continue to grow, it is critical to understand that the formal legal processes involved in the DoJ's cross-border investigations merely frame the relevant issues. It is the informal interactions that actually determine whether those formal processes are effective. Likewise, it is vital for companies to know that when formal government requests for assistance are effectively blocked, less desirable and lesser-known procedures may be employed.



Perhaps most imperative, advice - because of the prominence of the non-public interactions, where the DoJ is involved - must be sought from a lawyer familiar with how it operates. They can help devise a strategy that best suits a company as international law enforcement efforts, and undisclosed intergovernmental interactions, continue to grow.



Jonathan Drimmer is an international litigation specialist at Steptoe & Johnson in Washington, DC. He is a former Deputy Director of the Office of Special Investigations in the criminal division of the US Department of Justice