Ten days after Gautam Adani and seven others were indicted in New York over charges of alleged bribery and securities fraud, there are far more questions than answers.
If the Department of Justice is alleging that the Adani group schemed to bribe Indian officials, then why have Gautam Adani and his nephew Sagar not been charged with bribery? Why is the Foreign Corrupt Practices Act, applied in this case, controversial in the United States?
Is this indictment unusual? Is it, as some have alleged, ‘political’? Can Donald Trump have these charges thrown out once he takes office – and is he likely to do so?
If the charges stick, what happens next? Will Gautam Adani be indicted? Does India have any obligation to investigate these charges independently?
More broadly, what does this case tell us about the promise and pitfalls of transnational litigation for corporate crimes?
In this deep-dive conversation, Mukulika Banerjee, a professor of anthropology at the London School of Economics, and journalist Pragya Tiwari try to find the answers to these questions.
To piece together the puzzle, they spoke to Jerry Roth, a lawyer who worked in private practice at two major New York firms before becoming an assistant US states attorney for New York. In fact, he was once a federal prosecutor in the very office that has indicted Gautam Adani. They also talked to Avi Singh, a lawyer and professor who specialises in criminal and transnational law.
A key point in the conversation is that the charges against Adani and co. are very serious, and the amounts involved are staggering. “In the scheme of indictments that I’m familiar with, with respect to bribery, these are at the top level in terms of the amounts of money that are being discussed,” Jerry said.
So, why wasn’t Adani charged with bribery? A plausible reason, the panel said, is that the appellate court in New York, which oversees the court, in United States v. Hoskins came down on authorities using the Foreign Corrupt Practices Act to go after citizens of foreign countries. Authorities could be worried that, if they did bring the charges, they would not be able to find a way around this judgement.
While the act is criticised across the world, Donald Trump has criticised it for a completely different reason – he said it puts American companies at a disadvantage globally by restricting them for paying bribes to procure business in parts of the world where this is par for the course.
Jerry said he finds it odd that the companies themselves were not charged. He agreed with lawyer Mukul Rohatgi’s assessment that the evidence lacks specificity and said the indictment is vaguer than most indictments he’s come across. He also doesn’t believe the indictment is politically motivated.
“Companies that have been charged with this type of offence, with bribery and corruption, range from American companies to European companies to Russian companies to Asian companies. Companies you’ve heard of, well-known companies, Goldman Sachs, Siemens, companies that you know well have been charged with this kind of violation,” he pointed out. “I don’t believe those are politically driven and I have no reason to think this is politically driven.”
But if Trump were to quash charges, Jerry said it would be extremely “unusual”. Prior presidents have kept their distance from prosecutions that have been brought by the Department of Justice. They don’t get involved; in fact, the norm is for them to not even discuss the prosecution with the DoJ, much less quash it. But when it comes to Trump, this will be one of the test cases to see what his approach will ultimately be.
As for the possibility of Gautam Adani being extradited, India and the US do have an extradition treaty that would come into play if Adani refuses to appear of his own accord. But the process could take years.
This and much more in the full video of the podcast. Listen to it on Spotify here.
Republished with permission from The India Briefing. Check them out on Instagram and Spotify.
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