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As I understand it, the Helsinki meeting between Donald Trump and Vladimir Putin resulted in an offer that seeks to question former Ambassador Michael McFaul in Russia. If this were to happen, how \ under what guise would the current administration compel McFaul to go to Russia for questioning?

I realize that this is a highly charged topic and would ask that responses be confined to answering the question. No inference should be drawn as to whether I would support or be against questioning. Please keep responses on target by focusing on the question above.

  • I'd change "under what guise would the current administration" to "under what guise could the current administration" because that's the answer you've got, and frankly the only one you're likely to get unless Trump decides to post here. – Fizz Jul 20 '18 at 7:16
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If this were to happen, how \ under what guise would the current administration compel McFaul to go to Russia for questioning?

There is no evidence that they would.

Vladimir Putin of Russia said that if his people were allowed to question Michael McFaul and possibly others, he would make the twelve newly indicted individuals available for questioning in Russia. The Russian constitution specifically bars extradition of Russian citizens. Presumably they would question the Americans in the United States.

They would only have to compel McFaul to undergo questioning. That could be done by a US court. The Russians might have to present some kind of evidence that McFaul knew something about some criminal activity, but the activity would not necessarily have to be criminal in the US.

  • In fact, while the mutual legal assistance treaty between the US and Russia allows a court to compel testimony, it leaves it up to the prospective witness whether or not they want to go to the other country to testify. The natural conclusion is that testimony is by default given at home and the transcript sent overseas. – cpast Jul 20 '18 at 16:01
  • This is because the U.S. doesn't sign Extradition Treaties without Dual Criminality (which means that it must be a crime in the US to extradite to a foreign country). Russia having no extradition as constitutional policy means the United States would never sign one with them. – hszmv Jul 20 '18 at 16:04
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    @hszmv Russia only bans extradition of its citizens. The US routinely signs extradition agreements with countries that refuse to extradite their citizens; it just puts a clause in the treaty to say that both sides get to refuse to extradite their citizens. – cpast Jul 20 '18 at 16:12
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, how \ under what guise would the current administration compel McFaul to go to Russia for questioning?

The only way they could do so legally is via the courts. As Russia has an unfortunate habit of murdering people[1], I doubt that any extradition would be approved even if evidence of criminality would be supplied, never mind the farce that is the current situation.

[1] A couple of links to get you started: https://en.wikipedia.org/wiki/List_of_journalists_killed_in_Russia , https://en.wikipedia.org/wiki/Assassination_of_Boris_Nemtsov

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You have to dive a little bit deeper to understand Russia's motives. In reality they couldn't care less about questioning McFaul and they've merely used him to advance their interests:

  • If the US says they won't allow the questioning, Putin can always blame Trump for refusing to cooperate. They would also have a good excuse for not allowing the questioning of Russian hackers, which is easy to use for internal propaganda to show how the government is protecting their citizens.

  • If the US does allow McFaul to be questioned, it would be humiliating for Trump as Putin would be seen as dictating his terms to him. And letting the FBI question a few Russian hackers is unlikely to result in anything negative for Russia.

Where and how the questioning would take place is there a moot point. Neither side expects to gain anything of value from the responses given during the query, so the exact details of how it would take place are mostly irrelevant.

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It is difficult to conceive of a "guise" which could be devised by the "current administration" to "compel" a former U.S. ambassador to travel to a foreign nation for "questioning", due to the Privileges and Immunities granted to high-level diplomats; and the limited power of the Executive Branch under the Constitution or laws of the United States to force such a compulsion upon a U.S. citizen.

We would first need to determine the authority any Branch of the United States would have to make such an order, or "compel" a former diplomat and U.S. citizen to do anything.

The single organic Law of the United States that can immediately cite relevant to ambassadors would be the Constitution of the United States, Article III, Section 2 (in pertinent part)

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party

where a party could file an action directly in the U.S. Supreme Court expressly seeking a specific remedy as to that diplomat, or as would be the case, the United States - as the questioning would presumably be related to the duties the ambassador performed while acting in their official capacity as a representative of the United States, not as a private U.S. citizen - though am not certain of the purported nature of the inquiry which spawned the proposal to "question" a former U.S. ambassador.

It should be possible to determine if such a filing has been made by contacting the Clerk of the Court and reviewing the Court Docket.

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    The "ambassadors" spoken of in the constitution are foreign ambassadors. An ambassador has no immunity with respect to his or her own country's laws. The executive can order US ambassadors to do whatever it wants, since they are part of the executive branch and subordinate to the president. The only question here is what the executive can do with respect to former ambassadors. – phoog Jul 20 '18 at 3:30
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    A US ambassador enjoys immunity only to the extent that it suits the United States. The immunity is subject to being waived by the government. If the government decided that it was in US interests to compel an ambassador to testify, it would waive the immunity. – phoog Jul 20 '18 at 4:00
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    @guest271314 In the proposed scenario, US government attorneys would be filing for the subpoena. It would not be a subpoena of the United States, but of the ambassador individually (yes, you can subpoena a federal officer individually for testimony related to his official actions). There's no "suit" involved here -- the request is for testimony, and if he did refuse to testify he has no possible argument for immunity for his personal refusal (while federal officers can sometimes legally refuse subpoenas, that's only if the government instructs them to). – cpast Jul 21 '18 at 15:04
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    @guest271314 The entire premise of the question is "suppose this does happen, how would it happen." If you're starting out with "this won't happen," you aren't actually answering the question. If it does happen, which is an assumption of the question, immunity has no relevance at all. The ambassador has no grounds to claim any sort of diplomatic or official immunity unless the government agrees, and so the government doesn't actually have to worry about those. – cpast Jul 21 '18 at 15:06
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    @guest271314 As for procedure, this answer makes several blatantly incorrect statements about what procedures could be followed. Despite what you boldly claim, the executive branch is allowed to use subpoenas to compel someone to answer questions in many circumstances, specifically including complying with the terms of an MLAT (which, incidentally, the US has with Russia). – cpast Jul 21 '18 at 15:10

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