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Let’s See Who’s Bluffing in the Criminal Case Against the Russians

Putin twice invoked an obscure 1999 treaty with the U.S. that could obligate his cooperation in such investigations.

It was a remarkable moment in a remarkable press conference. President Donald Trump had just finished a controversial summit meeting in Helsinki with his Russian counterpart Vladimir Putin, and the two were talking to the media. Jeff Mason, a political affairs reporter with Reuters, stood up and asked Putin a question pulled straight out of the day’s headlines: “Will you consider extraditing the 12 Russian officials that were indicted last week by a U.S. grand jury?”

The “12 Russian officials” Mason spoke of were military intelligence officers accused of carrying out a series of cyberattacks against various American-based computer networks (including those belonging to the Democratic National Committee), the theft of emails and other data, and the release of a significant portion of this information to influence the outcome of the 2016 U.S. presidential election. The names and organizational affiliations of these 12 officers were contained in a detailed 29-page indictment prepared by special prosecutor Robert Mueller, and subsequently made public by Deputy Attorney General Rod Rosenstein on July 13—a mere three days prior to the Helsinki summit.

Vladimir Putin responded, “We have an…existing agreement between the United States of America and the Russian Federation, an existing treaty, that dates back to 1999, the mutual assistance on criminal cases. This treaty is in full effect. It works quite efficiently.”

Putin then discussed the relationship between this agreement—the 1999 Mutual Legal Assistance Treaty—and the Mueller indictment. “This treaty has specific legal procedures,” Putin noted, that “we can offer the appropriate commission headed by special attorney Mueller. He can use this treaty as a solid foundation and send a formal and official request to us so that we would interrogate, we would hold the questioning of these individuals who he believes are privy to some crimes and our enforcement are perfectly able to do this questioning and send the appropriate materials to the United States.”

In the uproar that followed the Trump-Putin press conference, the exchange between Mason and Putin was largely forgotten amidst invective over Trump’s seeming public capitulation on the issue of election interference. “Today’s press conference in Helsinki,” Senator John McCain observed afterwards in a typical comment, “was one of the most disgraceful performances by an American president in memory.”

It took an interview with Putin after the summit concluded, conducted by Fox News’s Chris Wallace, to bring the specific issue of the 12 indicted Russians back to the forefront and give it context. From Putin’s perspective, this indictment and the way it was handled by the United States was a political act. “It’s the internal political games of the United States. Don’t make the relationship between Russia and the United States—don’t hold it hostage of this internal political struggle. And it’s quite clear to me that this is used in the internal political struggle, and it’s nothing to be proud of for American democracy, to use such dirty methods in the political rivalry.”

Regarding the indicted 12, Putin reiterated the points he had made earlier to Jeff Mason. “We—with the United States—we have a treaty for assistance in criminal cases, an existing treaty that exists from 1999. It’s still in force, and it works sufficiently. Why wouldn’t Special Counsel Mueller send us an official request within the framework of this agreement? Our investigators will be acting in accordance with this treaty. They will question each individual that the American partners are suspecting of something. Why not a single request was filed? Nobody sent us a single formal letter, a formal request.”

There is no extradition treaty between the U.S. and Russia, which makes all the calls for Trump to demand the extradition of the 12 Russians little more than a continuation of the “internal political games” Putin alluded to in his interview. There is, however, the treaty that Putin referenced at both the press conference and during the Wallace interview.

Signed in Moscow on June 17, 1999, the Mutual Legal Assistance Treaty calls for the “prevention, suppression and investigation of crimes” by both parties “in accordance with the provisions of this Treaty where the conduct that is the subject of the request constitutes a crime under the laws of both Parties.”

It should be noted that the indicted 12 have not violated any Russian laws. But the Mutual Legal Assistance Treaty doesn’t close the door on cooperation in this matter. Rather, the treaty notes that “The Requested Party may, in its discretion, also provide legal assistance where the conduct that is the subject of the request would not constitute a crime under the laws of the Requested Party.”

It specifically precludes the process of cooperating from inferring a right “on the part of any other persons to obtain evidence, to have evidence excluded, or to impede the execution of a request.” In short, if the United States were to avail itself of the treaty’s terms, Russia would not be able to use its cooperation as a vehicle to disrupt any legal proceedings underway in the U.S.

The legal assistance that the treaty facilitates is not inconsequential. Through it, the requesting party can, among other things, obtain testimony and statements from designated persons; receive documents, records, and other items; and arrange the transfer of persons in custody for testimony on the territory of the requesting party.

If the indictment of the 12 Russians wasn’t the “dirty method” used in a domestic American “political rivalry” that Putin described, one would imagine that Deputy Attorney General Rod Rosenstein would have availed himself of the opportunity to gather additional evidence regarding the alleged crimes. He would also have, at the very least, made a request to have these officers appear in court in the United States to face the charges put forward in the indictment. The treaty specifically identifies the attorney general of the United States “or persons designated by the Attorney General” as the “Central Authority” for treaty implementation. Given the fact that Jeff Sessions has recused himself from all matters pertaining to the investigation by the Department of Justice into allegations of Russian meddling in the 2016 election, the person empowered to act is Rosenstein.

There are several grounds under the treaty for denying requested legal assistance, including anything that might prejudice “the security or other essential interests of the Requested Party.” However, it also requires that the reasons for the any denial of requested assistance be put in writing. Moreover, prior to denying a request, the Requested Party “shall consult with the Central Authority of the Requesting Party to consider whether legal assistance can be given subject to such conditions as it deems necessary. If the Requesting Party accepts legal assistance subject to these conditions, it shall comply with the conditions.”

By twice raising the treaty in the context of the 12 Russians, Putin has clearly signaled that Russia would be prepared to proceed along these lines.

If the indictment issued by the Department of Justice is to be taken seriously, then it is incumbent upon Rosenstein to call Putin’s bluff, and submit a detailed request for legal assistance per the mandate and procedures specified in the treaty—in short, compel Russia to either put up or shut up.

Any failure to do so would only confirm Putin’s assertion that the indictment was a political game to undermine the presidency of Donald J. Trump.

Scott Ritter is a former Marine Corps intelligence officer who served in the former Soviet Union implementing arms control treaties, in the Persian Gulf during Operation Desert Storm, and in Iraq overseeing the disarmament of WMD. He is the author of Deal of the Century: How Iran Blocked the West’s Road to War.



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