The Withdrawal of the Kudrin Subpoena in Response to the US Departments of State and Justice Submission Regarding Diplomatic Immunity
A subpoena for the testimony of Russian Finance Minister Alexei Kudrin was withdrawn after a US State Department opinion that Mr. Kudrin was a part of a special diplomatic mission at the time. In withdrawing the subpoena, it is important to note that this decision leaves open the possibility of future subpoenas when special diplomatic circumstances do not apply.
Statement:
In connection with resolving Mr. Kudrin's motion to quash the subpoena, the US court which issued the subpoena for him to provide testimony in connection with the trial of Mr. Khodorkovsky in Moscow requested the United States Department of State to provide its opinion on whether Mr. Kudrin should be deemed to have diplomatic immunity at the time he was served. As a reminder, Mr. Kudrin was served with the subpoena on April 24, 2009 in front of the Peterson Institute, a private institution, which invited Mr. Kudrin to speak to its members and others on the status of the Russian economy. The courts commonly issue such a request when confronted with actions concerning individuals claiming diplomatic status. In response here, the United States Department of State, through the Department of Justice, notified the court that it believes Mr. Kudrin should be provided immunity retroactively from service of process because, at the time he was served, Mr. Kudrin was in the United States as part of a Russian diplomatic mission in connection with the meeting of the International Monetary Fund ("IMF") and G-7 and G-20 representatives. Under these special circumstances, the Department of State takes the position that enforcement of the subpoena on Mr. Kudrin would have adverse consequences, including among other things, exposing US government representatives overseas to retaliation and demands by the Russian, and other foreign, courts compelling them to appear and testify. As a result, enforcement of the subpoena was virtually impossible under US law, and the other factors weighing in favor or the court's original granting of the application for the subpoena became moot.
The Departments of State and Justice did not challenge Mr. Khodorkovsky's point that neither Mr. Kudrin, nor any other Russian government official, is entitled to blanket immunity from being compelled to testify as requested by Mr. Khodorkovsky. Therefore, absent the further grant of diplomatic immunity based on the limited circumstances outlined by the Departments of State and Justice, Mr. Kudrin, as well as other Russian government officials would otherwise be subject to a subpoena served pursuant to 28 USC § 1782, the statute invoked by Mr. Khodorkovsky to secure the subpoena. Furthermore, neither the Departments of State nor Justice expressed any doubt regarding the relevance of Mr. Kudrin's testimony or the difficulties Mr. Khodorkovsky faces in gathering evidence in Russia. Thus, the submissions left open the legal viability of an application for additional subpoenas for witness testimony if Mr. Kudrin, or another Russian government official on the defense's witness list, enters the United States under circumstances other than the special diplomatic mission specifically recognized by the State Department in regards to Mr. Kudrin's presence in the United States on April 24, 2009 when he was served.
Therefore, on June 8, 2009, the United States Court entered an Order acknowledging the parties agreement on the withdrawal of the subpoena and the vacating of the original order. The court also found that Mr. Kudrin's Motion to Quash was denied as moot. The US court has unsealed the record except for the original order granting the request for the subpoena. It remains under seal at Mr. Kudrin's request. We regret Mr. Kudrin's decision to oppose complete transparency in this matter.
Background: