Barack Obama remains determined to exit the Presidency in a blaze of petulance.
Yesterday he announced a further set of sanctions against Russia, using as his legal authority the Magnitsky Act.
The Magnitsky Act was passed by Congress in 2012, and imposed sanctions on a group of Russian individuals who the US Congress says are guilty of causing the death in prison of Sergey Magnitsky. This Act stemmed from a case involving allegations by the Russian authorities that the business Magnitsky whose accounts Magnitsky was handling – Hermitage Capital, which is run by the British businessman Bill Browder – was guilty of tax evasion, and Browder’s cross allegations that a group of corrupt Russian police officers and Russian mobsters had used the false tax evasion allegations to seize some of Hermitage Capital’s companies to carry out a tax fraud of their own.
The Russian authorities claim that Magnitsky was implicated in Browder’s and Hermitage Capital’s tax scam, and arrested him on that basis. He was held on charges in prison for a year but died shortly before he was due to be released.
There is massive controversy both about the truth of the tax claims and about the circumstances of Magnitsky’s death. Browder – who has repeatedly though it seems wrongly referred to Magnitsky as a lawyer – claims Magnitsky was murdered. The Russian authorities deny this, and say he died of natural causes, though they admit the negligence of some of the prison officials tasked with looking after him.
The key point is that none of the allegations has ever been proved or disproved in any properly contested court hearing – though the Russians did try Browder and Magnitsky in absentia on the tax charges and found them both guilty – and though Browder was afforded an opportunity to prove his case in a defamation case in Britain but in the event declined to do so, citing (as is his right) jurisdiction issues.
Though it is beyond me to say where the truth lies in the tax case, and in the absence of a properly contested court hearing I do not see how anyone else can, I would repeat a certain point which I have made before, which is that if a businessman under investigation on tax evasion charges were to make the sort of claims that Browder is making in any other advanced country, most people would deem these claims fanciful.
I would also note that recently a Russian film (which I have not seen) has appeared made by a film director who says he had previously assumed Browder’s innocence, but who now believes in his guilt.
As to the causes of Magnitsky’s death, I think it is a virtual certainty that the Russian authorities are telling the truth, and that Magnitsky was not murdered as Browder says, but that he died as the Russian authorities say of natural causes compounded by the negligence of the prison officials. The evidence of the official investigation conducted by Russia’s Investigative Committee which has looked into this issue seems to me overwhelming.
The paradox of these latest sanctions which Obama has imposed on the authority of the Magnitsky Act is that he actually opposed the Magnitsky Act when it was first proposed by Congress in 2012. As a constitutional lawyer he undoubtedly knows that Congress is not a court and has no jurisdiction to pronounce on the guilt or innocence of anyone involved in the circumstances of Magnitsky’s death and to impose punishments on them, especially as Magnitsky died in Russia where Congress has no jurisdiction. He must also know that around 4,400 prison inmates die in US prisons every year. The sanctions imposed by the Magnitsky Act are therefore of dubious legality, and have no moral basis. Nonetheless despite making known his disagreement with the Magnitsky Act, he signed it into law.
I should say that the slide in US-Russian relations under Obama’s administration began in my opinion with the Magnitsky Act, which preceded the Ukrainian crisis by more than a year.
Notwithstanding Obama’s (weak) opposition to the Magnitsky Act in 2012, he has now used it to impose further sanctions on several Russian individuals. Two of them are Andrey Lugovoy and Dmitry Kovtun, the two Russians the British authorities accuse of murdering Andrey Litvinenko with polonium in London in 2006. In passing I should say that though the Magnitsky Act is named after Sergey Magnitsky and focuses on his alleged murder, it is drafted in such a way as to allow the US President to impose sanctions on anyone he considers guilty of human rights violations, and not just in Russia.
Lugovoy and Kovtun are small fry who have long been unable to travel to the West because of the British charges against them. The Russians are unlikely to care about any US sanctions imposed on them.
The other person covered by Obama’s sanctions is a far more important person: Alexander Bastrykin, the head of Russia’s powerful Investigative Committee (“Sledkom”), Russia’s equivalent of the FBI.
Bastrykin has no connection to the Litvinenko murder, having been appointed to head the Investigative Committee in 2007 (when it was still part of the Procurator General’s Office) which is after Litvinenko was killed, and he has not previously been accused of having any direct involvement in the Magnitsky’s death. However the Investigative Committee was placed in charge of the Russian investigations into Litvinenko’s and Magnitsky’s deaths – which are regularly condemned in the West as cover ups – and on that basis it is possible to construct a tenuous connection between Bastrykin and these two cases.
Almost certainly the main reason Bastrykin has been targeted has however nothing to do with either the Litvinenko or Magnitsky cases, but is because in Western and Russian liberal demonology Bastrykin is a notorious anti-Western hardliner.
Much of this stems from Bastrykin’s role pursuing corruption investigations against Russian businessmen, some of whom (eg. the banker Andrey Borodin) then complain that they are being persecuted because of their political views.
These claims are then often treated uncritically in the West, where they occasionally result in grants of asylum, and where they become a regular part of the charge sheet against Russian President Putin and Russia.
The paradox of the West simultaneously criticising Russia for corruption and criticising Russia for acting against corruption, never seems to get noticed.
Another reason for going after Bastrykin is however that it complicates cooperation between Western and Russian police forces.
Following the election of a senior Chinese and Russian police officials to senior posts in Interpol – the international police coordination agency which until recently has been under effective US control – it is understandable why some people in Washington might be concerned about such cooperation and anxious to disrupt it. Going after Bastrykin looks like an attempt to do it.
Regardless of the precise motive, this shabby episode, coming at the fag end of Obama’s Presidency, with Obama due to leave office in just 10 days, has to be seen as yet another slight by Obama towards Trump, his soon-to-be successor.
With Trump making clear his determination to press on with his policy of detente with Russia, it seems Obama simply cannot stop doing everything he can to foul the nest.
This petty episode, which Trump and Putin will simply disregard, further diminishes Obama, once again making him vindictive and small-minded.