Thread by @RickPetree

THREAD: OK, law students, our class today is titled "What's Fishy About the Assange Indictment and Extradition Application ?" We'll focus on an arcane doctrine called the "Rule of Specialty." First, some case law. Take careful notes.

Robt. Iraola (DOJ, Office of Int'l Affairs) summarized the Rule: "Under doctrine of specialty, recognized by the Supreme Court over a century ago in U.S. v. Rauscher, an extradited fugitive is subject to prosecution only for those offenses for which he or she was surrendered."

And from another source: "The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other. United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987)."

There's a wrinkle in the case law: the requesting country can charge for 'lesser included offenses,' even if they weren't the basis for the extradition request. That boils down to a requirement that prosecution on any different charges be based on a *common set of facts.*

So, U.S. courts have consistently held that, if the U.S. requests the extradition of a person from another country, the U.S. can't "pull a switcharoo" once it gets custody: it can only prosecute those crimes *for which the extradition was sought.*

The Rule of Specialty is incorporated in the U.S.-U.K. extradition treaty (Art. 18), under which USG is currently seeking the extradition of Assange.

Let's refresh what we know abt the U.S. application for Assange's extradition: the application is (so far at least) based solely on a Mar. '18 indictment of Assange in EDVA, unsealed y'day. That indictment alleges offenses connected with Manning's hacking of USG secrets in 2010.

The EDVA charges have *nothing* to do with any SCO investigation of Assange's role in Trump-Russia. We heard y'day from DOJ that 'additional charges' may be filed against Assange. Many eagerly assumed that the 'next shoe to drop' wd be SCO-related.

Applying the Rule of Specialty, there's a clear problem in making that hopeful leap. Any SCO related charges now brought against Assange would have NO 'factual tissue' in common with the EDVA charges for which his extradition is currently being sought.

There are two ways in which that problem could be surmounted, so as to permit 'superseding indictments' of Assange on SCO-related charges: (1) USG cd ask UK to waive the Rule of Specialty, or (2) USG cd amend its extradition application, to include the new SCO-related charges.

There are no signs, yet, of either of these things happening. If neither happens, and Assange is extradited to the U.S. based solely on the extradition application currently before a UK court, HE CAN ONLY BE TRIED IN THE U.S. ON THE EDVA CHARGES.

Now, for those of you with a devious turn of mind: might this be precisely what the DOJ is aiming for ? Might the DOJ have figured out that the Rule of Specialty is a great way of limiting the prosecution of Assange to offenses *that have nothing to do with Trump or 2016* ?

If additional indictments of Assange on SCO-related charges were in the works ('twinned' w/ indictment of Stone), as many of us assumed, might Rule of Specialty give DOJ an excuse for not pursuing those charges ? Barr can say he had no discretion: his hands were tied, legally.

@emptywheel has done a blog post on Rule of Specialty/Assange, which offers background on the Rule, and raises other important issues related to it.
emptywheel.net/2019/04/11/the… END