Meng Wanzhou, Deputy Chairwoman and CFO, Huawei

 

What kind of message would President Donald Trump be sending to global businesses if he were to intervene in the U.S. Department of Justice’s criminal case against Chinese telecom giant Huawei Technologies Co., Ltd. and its chief financial officer?

Some legal experts are saying it isn’t a good one.

“It gives the impression that a lever is pulled over here in order to achieve an effect over there,” Richard Matheny, a litigation partner at Goodwin Procter in Washington, D.C., who heads the firm’s global trade practice, said in an interview Wednesday.

By inserting himself into the Huawei case, Trump would essentially be telling the U.S. business community and the rest of the world that “everything is for sale. Everything can be negotiated,” Matheny added.

The question, which is ripe with trade and policy implications, began circulating Tuesday, when Reuters reported that Trump had said that his desire to reach a trade deal with China could spur him to wade into the DOJ’s investigation of Huawei Chief Financial Officer Meng Wanzhou. She is the daughter of Huawei’s founder.

“If I think it’s good for what will be certainly the largest trade deal ever made—which is a very important thing—what’s good for national security—I would certainly intervene if I thought it was necessary,” Trump said.

Trump floated the possibility of intervening in the Huawei case on the same day that Meng was released on $10 million bail in Canada. She was arrested Dec. 1 in Vancouver at the request of U.S. authorities, who want to extradite Meng to face fraud charges alleging that she used a subsidiary of Huawei called SkyCom to evade American sanctions on Iran.

Some legal analysts are saying that Trump’s apparent willingness to step between Meng and the DOJ would show that she was simply a “bargaining chip” in the U.S.-China trade war—contradicting assertions from Trump administration officials that the criminal case against Huawei is not political.

Rebecca Roiphe, a professor at the New York Law School who has written about the DOJ’s independence from the president and the level of control he can exert over federal prosecutors, believed that it would be “improper and arguably illegal for the president to intervene in the Huawei case.”

She said the president should convey his foreign policy concerns to prosecutors and step back. If he were to get involved, it would send the message that the “values expressed in [U.S.] criminal sanctions law are more flexible than at first they would seem.”

“What looked like a strict prohibition now looks like something that might be bargained or exchanged,” she added.    

But another legal scholar, Robert Howse, a professor of international law at the New York University School of Law, suggested that the hand-wringing over Trump’s comment is overblown. He wrote in an email that “in some cases, amnesties or forbearance of normal criminal procedures for high policy reasons could be justified.”

“It is important to be blunt about it though, as Trump was,” he added. “If overriding policy interests are what is at issue in such forms of leniency or forbearance, this should be done transparently, rather than pretending there were purely legal reasons.”

Trump established earlier this year that he isn’t exactly shy about stepping in to help Chinese companies accused of running afoul of U.S. laws in order to further trade relations. Over the objections of lawmakers in his own party, Trump worked out a controversial deal to lift a seven-year export ban that would have prevented Chinese telecom ZTE Corp. from using U.S. products and was viewed as a death knell for the company.

“Here we have another circumstance where the same thing could happen,” Matheny, the Goodwin Procter partner, said of Trump’s possible intervention in the Huawei case. “It’s another gambit in a high-stakes chess game between two superpowers.”

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