Dispute Over Justice Department’s Use of Overseas-Evidence Requests Grows
18 Mar 2020

A dispute over whether the Justice Department has misused some foreign-evidence requests escalated this week, as prosecutors put forth an aggressive interpretation of their authority and a former prosecutor went public with additional allegations of unethical conduct.

The fight is playing out within two criminal cases against traders accused of manipulating prices for precious metals futures. The traders, who formerly worked at Deutsche Bank AG and Bank of America Corp. ’s Merrill Lynch arm, have argued their indictments could have been tainted if prosecutors abused the process for seeking overseas evidence.

Seeking to rebut that claim, Justice Department lawyers said they ultimately didn’t use the request to support charges in the two cases at issue. They also argued that judges can’t scrutinize “possible subjective motives” of prosecutors seeking evidence from abroad.

Those types of foreign requests can give authorities more time to investigate cases, though they may be running up against deadlines for bringing charges.

Responses to mutual legal-assistance treaty requests, or MLATs, sometimes take months or years, so prosecutors can ask a federal judge, under seal, to suspend the statute of limitations for up to three years on a crime they are investigating while they seek foreign evidence. Prosecutors argue there can be good reasons for using the diplomatic process even when the evidence can be obtained through other channels.

“The defendants have offered no authority that even a nakedly pretextual MLAT constitutes misconduct, let alone a proper basis to dismiss an indictment,” Justice Department prosecutors wrote this week in a filing made in Chicago federal court.

The fight over MLATs surfaced last month when The Wall Street Journal reported an ex-prosecutor’s claims that his colleagues abused the process to extend the statute of limitations in one of the manipulation cases. Ankush Khardori wrote in a memo to the Justice Department’s inspector general that it appeared his colleagues, who were in danger of running out of time to file their case, didn’t need the information.

Both fraud cases involve an MLAT request sent to U.K. officials in December 2016. A judge suspended the five-year statute of limitations on the crimes the same month, giving the government more time to investigate.

By Dave Michaels and Aruna Viswanatha, The Wall Street Journal, 17 March 2020

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