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American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts |
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Matthew J. Spence [View as PDF]
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114 Yale L.J. 1185 (2005)
On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole tens of millions of dollars from the Ukrainian people, which he then concealed in U.S. banks. For only the second time in history, a foreign head of government had been successfully prosecuted in the United States.
Yet it was the first time that a former leader of a foreign country was convicted in a U.S. court in part for breaking his own country's laws. The U.S. offenses with which Lazarenko was charged criminalize transactions involving money obtained from an underlying illegal act. While these underlying criminal activities typically occur within the United States, Lazarenko stole property and committed extortion within Ukraine. Nevertheless, the district court instructed the jury that it could find him guilty of violating U.S. laws against money laundering, wire fraud,
ITSP, and conspiracy if it found that his activities in Ukraine violated Ukrainian law.
In effect, the U.S. government helped Ukraine enforce its own laws where Ukrainian courts had failed. Although Lazarenko's corruption was well known in Ukraine, at the time his own country's courts and prosecutors lacked the independence to convict such a powerful political figure. The story is familiar across the developing world: Good laws on the books are not enforced, corruption and lawlessness deepen, and consequently public disillusionment with the promise of democratic reforms grows.
Although U.S. prosecutors claimed no such foreign policy designs, this Comment argues that Lazarenko suggests a potentially powerful new tool to promote the rule of law abroad: U.S. prosecutors indirectly punishing violations of foreign laws in U.S. courts by using such violations to prove elements of U.S. crimes. Helping countries in transition enforce their own laws and eliminate corruption at home until their own legal systems become stronger is a heretofore unrecognized collateral benefit of such prosecutions. In considering whether to prosecute foreign officials in the future, the U.S. government should take into account this goal of promoting democracy.
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