The Biden administration’s decision last week to suspend the criminal case against Huawei executive Meng Wanzhou signals dangerous weakness in our China policy. Whether this was the result of an explicit political deal between Washington and Beijing or just a straightforward Justice Department prosecutorial judgment, the immediate perception of a highly questionable concession will not fade quickly. Ironically, if President Joe Biden compromised a legitimate criminal prosecution in a dubious political trade-off, he walked in Donald Trump’s shoes on Huawei, with identical negative consequences.
At the Justice Department’s request, Canada arrested Meng, Huawei’s chief financial officer and its founder’s daughter, in December 2018. U.S. prosecutors sought her extradition to face trial on financial fraud charges, specifically Meng’s concealment of Huawei activities in Iran, contrary to U.S. sanctions. Meng denied the charges and fought extradition while confined to residences she owned in Vancouver. She had already lost one key argument when the Canadian court agreed with prosecutors that her fraudulent activity constituted “double criminality,” both in America and Canada, making extradition likely.
China responded thuggishly to Meng’s arrest, jailing two Canadians living in China on illusory charges. Both were released within hours of the deal’s announcement, thus confirming that Beijing had seized the two as bargaining chips to trade for Meng’s release. Days later, two Americans detained by China because of their father’s alleged crimes were also allowed to return to the United States. China’s resort to hostage-taking is a global wake-up call: If this is how China behaves now, imagine its behavior if its power and influence continue rising.
Washington did not completely cave in to Beijing, extracting a “deferred prosecution agreement” before agreeing to Meng’s release. Under DPAs, defendants must admit unlawful conduct as charged in their indictment, but they don’t actually plead guilty. The charges are dismissed at a later date if the defendant does not engage in further criminal activity. Meng admitted to the facts stated in her indictment, and her DPA requires that she not later deny or contradict those facts, on pain of renewed prosecution. Her charges will be dropped on Dec. 1, 2022, if she fully complies with the DPA.
For Meng, however, a DPA is far superior to a plea bargain, which would have required her to admit guilt and face possible sentencing or probation. With the Justice Department’s extradition request rescinded, Meng immediately left Canada for China. If she now violates the DPA, it is highly unlikely the U.S. will ever again get her in custody for trial, conviction, and punishment. Huawei was also charged corporately on essentially similar grounds as Meng, and that case continues. As one of Huawei’s highest-ranking executives, her factual admissions could damage the company in subsequent proceedings.
Beyond the legal issues, however, the deal signals real weakness from the Biden administration, whatever the full backstory. Unquestionably, the president has the constitutional authority to make this kind of decision. Balancing the responsibility to “take care that the laws be faithfully executed” with the presidential direction of foreign policy is a tension inherent in the office. There are clearly circumstances where prosecution should be avoided to prevent harm to larger national interests. But having the authority to take such actions does not guarantee the wisdom of doing so.
Trump showed ignorance of this distinction by suggesting that, in negotiations over a trade deal with China, he might drop charges against Meng. She argued in her extradition proceedings that Trump’s gratuitous comments proved her prosecution was purely political, and hence extradition was improper. Although Meng failed, Trump undercut legitimate complaints against China’s kidnapping of Canada’s citizens and contributed to the perception that Meng’s arrest was itself just another illegitimate hostage-taking.
Beijing’s immediate release of the Canadians reveals its mindset that the whole affair was political, yet another blow to the “rule of law” in China for foreigners. Until we learn the behind-the-scenes U.S. story, the clear lesson Beijing learned is that Trump-style deal-making is still alive and well under Biden. Following lawful processes becomes meaningless for America and its allies when China refuses to reciprocate and then gets away with brutal behavior. Other countries will also very likely see Meng’s DPA as a U.S. concession, thereby undermining subsequent U.S. requests to extradite criminals and other forms of cooperation in criminal investigations and prosecutions.
Even the timing of Meng’s deal was flawed. That very day, Biden hosted the first in-person meeting of leaders of the Asian “Quad” (India, Japan, Australia, and the U.S.) at the White House. While these leaders discussed China’s hegemonic aspirations, Meng was jetting back to China. Xi Jinping thinks he has taken the measure of the weak man in the White House, and that can only be bad news.
John Bolton served as national security adviser to former President Donald Trump between 2018 and 2019. Between 2005 and 2006, he served as the U.S. ambassador to the United Nations.
