Probably everyone is now aware of an unusual blip on the British legal radar : the visiting of charges of libel upon William Browder – naturalised British citizen who still swings enough weight with American lawmakers that he sweet-talked them into fielding the Magnitsky Act, even though he has renounced his American citizenship – by Major Pavel Karpov, a police officer whom Browder has frequently accused of corruption, graft and various gross misuses of his office.
And Nick Cohen, of The Guardian, (actually, The Observer, but same outfit) wants you to know that just isn’t right. He splutters in red-faced apoplexy from the vantage point of the popular tabloid, “Are Our Lawyers Being Used by the Kremlin Kleptocracy??” Kremlin kleptocracy, that’s good, I love alliteration. Mr. Cohen apparently fired off that punchy headline without putting too much thought into it beyond dreaming up something katchy to go with “Kremlin”, because to me it sounds as if he believes British lawyers could – and would – help a criminal pin a bad rap on an innocent man. Is that how Britain’s law courts work, Nicky? That’s certainly not the way they advertise themselves, with such pomp and majesty that you almost sneeze from the wig powder. The way they tell it, British justice is a bulldog that will run the truth to earth no matter how many obstacles are placed in its path, and that justice will be served, by God, wherever it may lead, God save The Kween (like that one, Nick? Maybe you can use it, if a woman is ever elected President of Russia. Kween of the Kremlin, what do you think?) Mr. Cohen’s faith in British justice seems, if you’ll forgive me, a little anemic.
I vastly enjoyed his article, because it is wall-to-wall low-hanging fruit; packed with every Russophobic trope you could reasonably expect. He didn’t manage to get anything in there about diminished life expectancy (although he did insinuate near the end that such might apply to certain among Britain’s lawyers, the man appears to imagine he is invincible) or a catastrophically shrinking population, but perhaps his editor took those out. They are, after all, a little off-topic, although some do seem to find them comforting.
Before we start examining the story to see if it is up to the usual standard of journalists The Guardian hires – apparently motivated by pity – let’s get a feel for what libel is and what we might expect from the exercise of due process. According to the good folks at Oxford Dictionaries, libel is, in law, “a published false statement that is damaging to a person’s reputation; a written defamation“. There, see; I learned something already. I though libel included something defamatory you said. According to this, it appears you have to publish it, although perhaps it might qualify if you said it on television. I’m sure someone who knows more about law than I do will enlighten us. Well, look here; never mind, “A Quick Guide to Libel Laws in England and Wales” informs us that libel can indeed be “…on a TV or radio programme, a website, a blog, a drawing, or even a letter sent from one individual to another.” Both libel and slander are descended from the English laws on defamation, and the same reference informs us 90% of libel cases in Britain, according to solicitors, are won by the claimant, who does not have to prove the defamatory statement harmed him or her (although that might figure in damages); instead, the burden of proof rests with the defendant – Browder – to prove the defamatory statements he made are true. According to Justice Jackson’s 2010 review of costs in civil litigation, number of libel cases won by the defendant? Zero. In fact, bringing of defamation charges in England by foreigners, because of England’s idiosyncratic legal reasoning on the matter, is quite popular: Lance Armstrong, who is to the best of my knowledge not a British citizen, brought a libel case against The Sunday Times through English law firm Schillings, for referencing the doping scandal book “LA Confidentiel”. Curious that they would do that, since the book was only ever published in French. But the truly juicy part of that little legal guide, for me, was this: “Damages awarded in libel cases are capped at £200,000. However costs incurred in a libel trial can be extremely high and the losing party is required to pay the winner’s costs as well as their own. This means that individuals and organizations can face bankruptcy if they take on and lose a libel action“.
This, beyond a doubt, is what has set the cat amongst the pigeons in London, and provoked the bawling defenses of Browder the Fifth Musketeer, fearless crusader for justice. Because speculation is that Karpov’s legal action is being backed by the Russian government. If true, it is a master-stroke that could never have come about if Bill Browder did not have a mouth like a mine shaft. The Russian government can outspend Browder’s puny fortune without even breaking a sweat, and Browder is faced with choice of settling out of court – which would be a tacit admission of guilt for such a wealthy man, or conceivably facing bankruptcy if the trial drags on. But, the really beautiful part? All he has to do is prove that what he said is true. And therein lies the best chance to get the entire stinking Magnitsky mess read into the public record, and poked and prodded and turned over.
All right. Let’s take a look at what Angry Nick wants to tell the world.
Okay; first line. One of the main aims of Russian foreign policy is to stop Bill Browder. What, pray, is the substantiation for that loopy assertion? Is The Guardian on the distribution list for Russian foreign policy memorandums? In fact, Browder was denied entry to Russia on arrival at a Moscow airport in 2005, and spent a considerable period trying to quietly sort it all out with the Russian government, so as not to alarm his investors, rather than trumpeting his righteous outrage to the world. In fact, he spent that time lobbying international heavyweights like former Foreign Secretary Jack Straw, Tony Blair and George W. Bush to intervene in his behalf, and persuade Russia to let him back into the country. None of these extremely important individuals was able to do so. Yet on this issue, Browder is very vague; he has no idea why, he claims. “The answer is, we just don’t know. You can take five highly placed, well-connected individuals in Russia, who know everything and everyone, and you’ll get five different emphatic answers about who was responsible for my visa being taken away. It could be that they all got together in a room and said that “Let’s just take Browder’s visa away so he can’t come to Russia any more”, I don’t know”, he says.
I’m puzzled. Why would they do that, Bill? Because at one time, Browder was not only making tons of money in Russia and singing its praises, he was one of the loudest defenders of its President, Vlladimir Putin.
A good example of Browder-then-and-now is his positions on the issue of Russia’s jailed oligarch, Mikhail Khodorkovsky. Browder then (January 2004, almost 2 years before he was declared persona non grata in Russia) – “…he may have become the poster child for corporate cleanups in the last two years, but his activities in the mid-1990s became synonymous with corporate governance abuse…Perhaps his most infamous deal, and the one that made him fantastically rich, was his acquisition of the oil company Yukos from the state. In a series of transactions with the government, Khodorkovsky successfully took control of a 78 percent stake in Yukos for a $310 million immediate cash payment, plus the promise of investing $200 million in the future. Eight months after he secured control, the same stake was worth $12.6 billion. Currently, it is worth $23.3 billion…If that were his only questionable deal, perhaps one could make the argument that we should look beyond what he had done because he turned Yukos around. Unfortunately, there were too many other questionable deals to ignore his behavior.” Browder now – “They take out Khodorkovsky and how many oligarchs want to politically challenge the President? They kick Bill Browder out of the country and how many people want to start complaining about corruption and shareholder rights in Russian companies?” In his own mind, at least, Browder with his alleged $120 Million fortune was on an influential par with Khodorkovsky, multibillionaire, and once Browder was gone from Russia, the fight against corruption withered on the vine. “Khodorkovsky – he got involved in politics, that’s why it happened to him.” Oops; I kind of thought from what you said earlier that it was because he was a compulsive criminal. “What I misread was the arrest of Mikhail Khodorkovsky. I thought that this was part of Putin’s “dictatorship of the law” and this was all part of the national interest. Before that I had had business conflicts with Khodorkovsky in the late 1990s, so I had an emotional reaction to the arrest of someone I had been struggling with. It’s only after his arrest that it has become obvious that the Khodorkovsky trial wasn’t about justice at all. It was pure expropriation and complete persecution of someone who was a threat to the administration and its surroundings.”
Isn’t it possible you’re just “having an emotional reaction to someone you’ve been struggling with” now, too, Bill? Because this is kind of the exact opposite of your matter-of-fact dissection of Khodorkovsky’s crimes earlier. Want a refresher? “Khodorkovsky collected an enormous pile of cheap assets from the government and minority shareholders, and then embarked on an impressive charm and lobbying offensive to legitimize himself and his wealth. He has been very successful in getting people to forget his not-so-distant past.” Including yourself, apparently.
Although Mr. Browder claims this is a go-to technique for the Russian authorities – to “[pick] up a pattern of governance of taking the biggest man or woman in any particular field and doing something, which has a profound demonstration effect for everybody else.” You might know where that’s going when he cites Anna Politkovskaya as an example of muzzling the press, by singling out and murdering the most important reporter in Russia. Anna Politkovskaya, who worked for Novaya Gazeta, which has a circulation of about 185,000 copies in a country of 142 million, and was about half that when she was killed. Yes, that had a profound effect. Anyway, he wants you to know that whenever you start to get too successful, Russia kicks you out of the country, to make an example of you. Uhhh…who else has that happened to? Of the big hedge funds and capital management firms in Russia that are foreign-owned, who else got kicked out? Prosperity Capital is still there, and their flagship funds have appreciated 48% and 49% over the last 3 years – the exile of Browder doesn’t seem to have had much of a chilling effect there. Renaissance Capital is still there, and has been longer than Browder, it was founded in 1995, and was his biggest rival. Unsurprisingly, he accused them of colluding with the Russian government to defraud him; he doesn’t seem to have had many friends in Russia. All these firms are still there, and I don’t know of any of them having their CEO booted out of the country. Just Browder.
In fact, Browder complains in several of the references cited that GAZPROM was inefficient and undervalued, and that the potential for huge moneymaking was going unexploited. In his I-know-you’re-corrupt-Daddy-but-I-love-you rhapsody to Putin in 2004, he specifically mentioned “lifting the discriminatory ring-fence on ownership of GAZPROM” as one of the things Putin needed to get on with. Foreigners were prohibited from trading in GAZPROM stock on the RTS, although they could buy it as an ADR (American Depositary Receipt) on the London Exchange. But the difference in quotes was more than 300%. You certainly don’t have to be a stockbroker to see the potential for easy money there. Hermitage formed two shell companies, Saturn Investments and Dalnya Steppe, in the special offshore zone of Kalmykia, with the apparent aim of getting around the ban on trading in GAZPROM stock. If Browder is truly confused as to why he got kicked out of Russia, he probably needn’t look too much further than that.
Something else that nagged at me, from Bowder’s REP appearance at Chatham House, cited earlier, was his contention that the testimony of Olga Yegorova – Chair of the Moscow City Court – that Magnitsky had been detained because he was about to skip the country and had applied for a Visa, is all a lie. The UK Embassy, in a unified statement that no doubt restored Mr. Cohen’s faith in the best of British pluck, denied this, and Browder says contemptuously that before his arrest, Magnitsky’s internal and international passports were taken from him, so that he could not have gone anywhere. However, Browder frequently – including in this same document – says that he advised all Hermitage’s lawyers, including Sergei (who was not actually a Hermitage employee or a lawyer, he was an accountant employed by British firm Firestone Duncan), to leave the country as of June 2008, when Magnitsky testified. Magnitsky allegedly resisted and announced steadfastly that he would stay, because he had done nothing wrong. Well done, old chap. Except he had no passports, according to Browder, and could not have gone anywhere. Oddly, only Magnitsky had his passport confiscated: all the other Hermitage personnel left. Perhaps they were not Russians. If they were, why did they not also have their passports confiscated? Firestone Duncan also fled, but only Magnitsky did not – ostensibly because he “believed Russia had changed” and foolishly placed his trust in the rule of law, but you could pretty much say anything you wanted about why, because he hadn’t any passport. And then the police left him alone for 4 months, and then fell upon him and arrested him, only to put him in pre-trial detention because they hadn’t even assembled the case against him yet and had not, in point of fact, when he died (because he would have had to be released in 8 days after the date he died) – when they could have arrested him at any time because he had no passport and couldn’t have gone anywhere. That sound right, to you?
Anyway, back to the article we started with, before we get distracted with the whole Magnitsky thing again. According to Nick, the Kremlin gang fears revolution – maybe there will be a democratic uprising! Yes, probably; everyone knows the opposition and its demonstrators have made tremendous gains this year, the Kremlin must be trembling in its bottinki. That the prospects for revolution seem to have gone from what was never really much of a bang to what is decidedly a whimper appear to have escaped him.
So, Karpov is going to do what all dirty crooks do – seek the protection of “outwardly respectable people”, namely members of the British bar. I’m not sure how they should react to that, as it seems those who are defending Browder are fine, upstanding members of the legal community. Presumably there is an underclass of British barristers, which defends only crooks. Yes, we learn, the honesty and cleanness of English law will be as much on trial when this case comes to court as the reputation of Bill Browder. Bill Browder wins, huzzah!!! British justice triumphant, argued brilliantly by as fine lawyers as ever trod the sod of Merrie England!! Browder fails to make his case because he cannot prove that the allegations he made are factual, fie and despair!! British justice revealed for a shoddy sham, the refuge of third-world scoundrels. Overlooked is that a judge will have to make a decision based on what the lawyers present, and that everything must be done in accordance with British law. Which seemed quite adequate, I might point out, until Berezovsky’s recent humiliation, at which point the British judicial system became a bunch of Commies interested only in exonerating criminals, according to several in The Guardian‘s stable.
Cohen offhandedly throws in that Magnitsky was “probably tortured”, because that’s just what Russians do – especially the star witness in the case, over the theft of $230 million, for which Magnitsky might get a maximum of 6 years if convicted. You can’t really blame him, because Browder has often said darkly that the same fate awaits him if he ever sets foot in Russia again, although there was no evidence Magnitsky was tortured and his lawyers never complained he was being tortured although he met regularly with them.
Why should a Russian policeman enjoy the privileges of British law, wonders Cohen. Why, indeed? Probably because the mouthpiece making the libelous allegations is a British citizen, who will not set foot in Russia despite extradition requests. But that raises an interesting point of international law – why should American lawmakers be allowed to add Russians to a blacklist for censure and sanction without a trial that finds them guilty? They were simply given the list of names…by Browder.
Karpov’s lawyer says there is not a shred of evidence against him – although that’s what you’d expect a lawyer to say, I’d regard that with foreboding, if I were somebody who had spent that better part of the last few years throwing around unsubstantiated accusations against him. Not to mention Cohen, who covers that possibility by suggesting ” If it is true that Karpov is an unfairly maligned man, no one will object”, although he has just spent most of an article pre-objecting. Then he’s off again, threatening to observe a permanent pout of non-forgiveness “if it transpires that Karpov has been exploiting the English legal system to protect the Putin kleptocracy”. He plainly likes that non-word. As if a Russian police Major is so clever that he can bedazzle and bewilder some of the Realm’s most experienced libel lawyers (clang, clang, warning, Nick Cohen, warning) into fabricating a winning case. Either Browder and his lawyers can prove the allegations Browder made are true, or he cannot. If he cannot, he might well be liable not only for damages, but for the legal costs of both parties.
It promises to be interesting.