n the last days of the Obama administration, the outgoing president has taken on a surprising urgency in closing “open” cases of alleged fraud, if mostly involving foreign carmakers. Case in point, this week’s $4.3 billion settlement with Volkswagen to put the diesel emmisions scandal to rest, and yesterday’s unexpected accusation by the EPA that Fiat was likely engaging in a similar scheme to defraud the US government of its true emissions. The crackdown has led to various curious outcomes, the most surprising of which is that Volkswagen has warned its senior managers not to travel to the United States after six current and former managers were indicted for their role in the German carmaker’s diesel test-cheating scheme, according to Reuters.
The company agreed to pay $4.3 billion in civil and criminal fines in a settlement with the DoJ on Wednesday, the largest ever U.S. penalty levied on an automaker. However, Attorney General Loretta Lynch said the DoJ would continue to pursue “the individuals responsible for orchestrating this damaging conspiracy”.
As reported on Monday, one of the six charged, Oliver Schmidt, was arrested by the FBI at Miami International Airport on Saturday as he was about to fly home from holiday in Cuba. Schmidt, who is caught up in the “Dieselgate” investigation by the U.S. Department of Justice (DoJ), was ordered to be charged and held without bail on Thursday pending trial.
While the biggest German carmaker agreed to pay $4.3 billion in civil and criminal fines in a settlement with the DoJ on Wednesday, the largest ever U.S. penalty levied on an automaker, Attorney General Loretta Lynch said the DoJ would continue to pursue “the individuals responsible for orchestrating this damaging conspiracy”.
Hence, guilty until proven innocent. Incidentally similar “advice” was given to Swiss bankers in the years following Obama’s crackdown on Swiss banking secrecy, when all local bankers could be arrested on sight if they attempted to enter the US.
Which also explains the travel ban: under German’s constituion, citizens can be extradited only to other European Union countries or to an international court. But leaving Germany at all could pose a risk of being extradited to the United States from a third country. “Several Volkswagen managers have been advised not to travel to the United States,” one legal adviser to Volkswagen said on condition of anonymity because the matter is confidential.
A second legal adviser said this also applied to managers who had not yet been charged with any offense in the United States. “One doesn’t need to test the limits,” the adviser said.
Schmidt was among those who had been warned by lawyers working for the company not to travel to the United States, one of the legal sources said.
Meanwhile, the German Federal Criminal Police Office said it was not aware of any request to extradite the other five indicted VW managers.
Confirming that the German carmaker, which exmploys more than 600,000 workers, is taking the advice seriously, Reuters reports that only one board member traveled to this week’s auto show in Detroit: VW passenger car brand chief Herbert Diess, who joined Volkswagen in July 2015, just two-and-a-half months before the VW’s decade-long deception of U.S. authorities became public.
A senior manager at the VW brand who asked not to be named called Diess’s decision to travel to Detroit “bold” and said his peers had been given guidance not to leave Germany as the risk of impending U.S. charges rose – although he would not go so far as to call it a “travel warning”. He said colleagues knew after being questioned by Jones Day lawyers, who are carrying out an independent internal investigation into the emissions affair, whether they had something to fear in the United States, and may have used this to determine travel plans.
Charles Kuhn, a partner at criminal law firm Hickman & Rose, said people in such a position faced “a harsh choice – voluntarily hand themselves in, or never leave Germany without fear that an international arrest warrant will land them in US custody anyway”.
“It’s the kind of impossible decision that leaves people holed up in embassies for years,” he said. “It depends on the alleged offense, but it is sometimes better to face the music than to live in the shadow of the DoJ.”
It is unclear how treatment of non grata Volkswagen, and other employees, would go under Trump, who seems far less worried about EPA violations, but is certainly focused on foreign companies hiring American workers. We are confident that Volkswagen will be able to obtain travel leniency…. it just may cost it a factory in Detroit, or two.
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