New York:

There remains a possibility that the $265 million bribery case against billionaire Gautam Adani can be withdrawn if the charges against him are deemed “unworthy or defective” after Donald Trump takes over as the US President, a prominent Indian-American attorney has said.

Attorney Ravi Batra told PTI that while every new president has a new team, President-elect Trump as the 47th President of the US, who is forgoing FBI checks for his Cabinet, will “neuter any prosecution that’s not based in good faith, but is what he has powerfully termed: lawfare”.

“Essentially, that means the law is being applied selectively to target one’s opponents, which naturally denies the target of “equal protection of the law” guaranteed by our Federal constitution,” Mr Batra said.

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He added that “that is an issue Gautam Adani can raise with his government, and request them to raise bilaterally” with the incoming administration of Trump, who will be sworn in as the 47th US President on January 20, 2025.

“If the criminal or civil charges are deemed unworthy or defective, President Trump’s new Justice Department and SEC (Securities and Exchange Commission) can withdraw the criminal and civil cases,” Mr Batra said adding that the “Law is a many splendored thing, as it can, and does, self-correct to retain public confidence in the noble judiciary and the rule of law.”

“This principle also has application in the comity of nations, given the all-important prosecutorial discretion. Indeed, that’s how prisoner exchanges between nations occur. The President, as the federal executive, is constitutionally empowered to set foreign policy as well as prosecute through his state and justice departments, respectively.”

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Mr Batra also said that the bribery charge against Mr Adani also raises the issue of extraterritorial application of American laws since the Indian tycoon and others involved in the case do not live here.

“While our domestic laws remain the same, a preliminary issue arises about extraterritoriality application of US laws,” Mr Batra told PTI.

Last week, a five-count criminal indictment was unsealed in federal court in Brooklyn charging Gautam Adani, his nephew Sagar Adani and Vneet Jaain with conspiracies to commit securities and wire fraud and substantive securities fraud for their roles in a multi-billion-dollar scheme to obtain funds from US investors and global financial institutions on the basis of false and misleading statements.

Prosecutors said that the indictment “alleges schemes to pay over $250 million in bribes to Indian government officials, to lie to investors and banks to raise billions of dollars, and to obstruct justice.” US Attorney for the Eastern District of New York Breon Peace had announced the charges. Peace was appointed by President Joe Biden as the 48th United States Attorney for the Eastern District of New York.

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In the US, the President appoints a United States Attorney to each of the 94 federal districts across the country. The US Attorney is the chief federal law enforcement officer in their district and is also involved in civil litigation where the United States is a party, according to the Department of Justice website.

In a parallel civil case, the SEC charged Gautam Adani and Sagar Adani and Cyril Cabanes, an executive of Azure Power Global Ltd., for conduct arising out of the massive bribery scheme.

According to the SEC’s allegations, the bribery scheme was orchestrated to enable the two renewable energy companies to capitalise on a multi-billion-dollar solar energy project that the companies had been awarded by the Indian government.

During the alleged scheme, Adani Green raised more than $175 million from US investors and Azure Power’s stock was traded on the New York Stock Exchange.

Last week, SEC announced that its Chair Gary Gensler will step down on January 20, 2025, the day Trump takes the oath of office. Gensler was nominated by Biden to serve as SEC head in February 2021, confirmed by the US Senate and sworn into office in April 2021.

On Monday, US Attorney for the Southern District of New York Damian Williams, who has served as the chief federal law enforcement officer in the district, announced his intention to resign from his position on December 13, over a month before Trump assumes charge.

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Similar announcements from federal officials appointed by Biden are expected in the coming days and weeks as Trump brings in new appointees in his second term as US President. Trump, who won the presidential election earlier this month, has begun announcing his picks for cabinet, White House and staff positions for his second term. Trump has nominated Jay Clayton, who was the SEC Chairman during his first tenure in the White House, to serve as US Attorney for the Southern District of New York, Manhattan’s top federal prosecutor. Presidential appointments require Senate confirmation.

In March 2017, during Trump’s first term as President, then US Attorney for the Southern District of New York Preet Bharara said he was “fired” from his post after he refused to quit.

Mr Bharara was one of the 46 US attorneys appointed by former President Barack Obama who were asked to resign by the Trump administration. Months earlier in November 2016 after Trump won the Presidential election, he had asked Mr Bharara to stay on in his position as US Attorney for the Southern District of New York.

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