Fault lines between the U.S. State Department and the Department of Justice have been exposed quickly in the Devyani Khobragade arrest case.
Soon after Secretary of State John Kerry expressed a measure of regret at the way the Indian diplomat was treated during her arrest in connection with visa fraud and wage dispute charges, New York Attorney Preet Bharara issued a formal statement that was remarkably shorn of tact. In fact, its tone runs so counter to the spirit of friendship that Secretary Kerry tried to restore that I would not be surprised that there is some feverish behind-the-scenes back and forth going on between the State and the Justice.
Yesterday, I wrote about some of these very challenges when I wrote this (Oh, the joys of quoting oneself in smug vindication):
It remains to be seen whether one department of the U.S. government would take an action that might undermine the case of another department. Of course, this is not unheard of in the annals of US government. Whether the State Department can lean on the Department of Justice, under whose purview the case falls, and have the charges either fully dropped or altered significantly is a matter of speculation at this stage…
The State Department has to do a rational cost benefit analysis of prosecuting a wage dispute of a relatively junior diplomat against its potentially serious fallout on a crucial strategic relationship. It may seem like a no-brainer but those are the most difficult challenges to resolve. With India having staked its national and cultural pride on Khobragade, the U.S. government has to find an honorable exit.
Bharara’s statement, which has been dismissed by India’s Foreign Minister Salman Khursheed as not relevant to India in an interview to Barkha Dutt of NDTV, is categorical when it comes to Khobragade’s conduct. He said the diplomat “was charged based on conduct, as is alleged in the Complaint (by her domestic help Sangita Richard), that shows she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers.” Bharara also said, “Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to U.S. government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the U.S. government about what she was doing.”
He also said something that normally a prosecutor would not say within the strict legalistic confines that he ought to operate. “And one wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?” he said. In so saying he has injected himself into the larger socio-cultural debate about the treatment generally of domestic help by Indians.
To me, the most troubling aspect of Bharara’s statement is the acknowledgement that the family of the alleged victim has been brought to the U.S. with impressive expeditiousness. The justification offered to “evacuate” the family is pretty damning of not just Khobragade individually but the Indian state generally. The word “evacuate” makes it sound as if the family was besieged and had to be rescued by the U.S. authorities. As a matter of fact, Bharara said so as much. He spoke of the attempt to “silence” the domestic help and the family being “confronted in numerous ways” regarding the case.
“Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-à-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending,” the statement said.
In my long and, dare I say, distinguished career (sarcasm) I do not recall a case where the U.S. authorities felt compelled to “evacuate” an Indian family, issue them visas quickly and fly them out. If there is a court mandated action pending against the domestic help in India and her Indian passport revoked as Foreign Minister Khursheed said, doesn’t the U.S. “evacuation” amount to aiding and abetting a fugitive? Bharara’s assertion that his office and the Justice Department were compelled to make sure that “victims, witnesses and their families are safe and secure while cases are pending” makes it sound as if there was a near national concert in India to gang-up on the Richard family.
The case now rests on the U.S. government making a determination whether it is worthwhile to let it go through the normal legal channels or drop it before it seriously damages bilateral relations. If Bharara had his way—and so far he has had his way—he could not care less about its larger implications and perhaps rightly so if he is so convinced about and able to prove the unlawful nature of the diplomat’s conduct. While the Justice Department is obligated to treat cases strictly on their legal merit, the State Department is equally enjoined to look for a nuanced, tactful and perhaps even creative resolution of such issues. Both are driven by wholly different and necessarily conflicting mandates.
Somewhere along the line, Bharara must also be mindful of his personal reputation when it comes to the Indian demand that the case be dropped altogether. All prosecutors, and particularly of the kind driven by barely concealed sense of self-righteousness that he displays, want to win all cases. They drop cases only with great chagrin and after exhausting all possible options. So I am not sure whether Bharara would be in a hurry to oblige the country of his birth and, more importantly, the country of his adoption.
Khursheed may justifiably choose to keep the engagement at his level and sort of take a dismissive view of an individual prosecutor. However, eventually it is that prosecutor who matters when it comes to deciding whether the charges are dropped or not. Of course, even if the wall dividing the State and the Justice is watertight no one should be surprised if there are ways to egress and ingress for emergencies. One way around the case could be that it is treated as a civil dispute rather than a criminal one.