The defence team for Huawei Technologies Co. Ltd. CFO Meng Wanzhou is targeting ex-U.S. President Donald Trump’s comments on Dec. 11, 2018, when he said he would “certainly intervene” in the case if he deemed it to benefit trade negotiations with China.
The comments came less than two weeks after Meng’s arrest Dec. 1, 2018.
“Our position is that the requesting state’s conduct – through its most senior representative – has subverted this process, has destroyed the integrity of this process,” said Meng lawyer Richard Peck at today’s session. “It has not acted in good faith. This is an affront to what’s right, fair and just... By its conduct, we say it is now bereft of any right to seek the assistance of our courts.”
Peck outlined further comments by Trump to Fox News in 2019 that doubled down on the ex-president’s ability and willingness to intervene, as well as bipartisan comments towards Huawei and the tech sector as a key area of “existential threat” to U.S. dominance.
These comments, he added, had a cumulative effect.
“Nothing here is said to to push the rightness or wrongness of another state’s foreign policy,”
Peck noted, “It represents context in which the words of the president exists... it shows the weight of these words.”
Defence lawyer Isabel Sherman added that the Crown is expected to argue that - with Trump replaced by new U.S. President Joe Biden this January - the effect of the comments is now moot. Sherman, however, said that is not the case.
She referred to Canadian Prime Minister Justin Trudeau's own comments later in 2019 about a U.S.-China trade deal not being signed unless the Meng issue and the topic of the two Canadians arrested by China in retaliation are addressed - an indication, Sherman said, that the erosion effect of Trump's comments on the non-politicalization of Canada's legal system has already begun.
"What exactly has disappeared? We respectfully say, nothing has," Sherman said. "The new president has not done anything to disavow the comments - nor can he. The damage was done the day those words are uttered. It can never be moot... To continue [the extradition proceedings] would be an approval of the requesting state's use of Canadian courts."
The allegations made by the defence, however, were criticized as "slim" by Crown attorney Robert Frater, who said Meng's team cherry-picked specific comments but left out an dominant, overarching theme built from the vast majority of comments made by "relevant actors" in the Huawei case.
Of note, Frater said Trump's comments were vague in terms of doing what's best in America's interest, and that in itself is not a substantial threat for the White House to intervene in Meng's legal proceedings.
Frater also cited comments by former Trump Secretary of State Mike Pompeo, U.S. Trade Representative Robert Lighthizer, current Biden Secretary of State Antony Blinken and incoming Attorney General Merrick Garland as overwhelmingly describing the Meng case being a strictly legal matter and not in any way discussed in trade negotiation proceedings.
The Crown lawyer further noted that it felt the Meng defence latched onto Trudeau's one comment in 2019 that may be perceived as describing political interference as an attempt to pivot the abuse-of-process argument onto someone else after Trump left office.
"My friends [Meng's defence], when they put that one comment to you [the court], are acknowledging in a sea of comments made by the prime minister about the rule of law and the fact that this case will be decided by an independent judiciary... one comment," Frater said. "A comment that - if you read it one way from a certain position - is contrary to everything else the prime minister has ever said.
"My respectful submission is that this is not a fair argument," Frater continued. "It is inconsistent with the general thrust of the statements that have been made."
The backdrop of U.S. geopolitical tensions with China has always been a dominant theme of the Meng case. The U.S. and a number of other western countries have resisted Huawei’s 5G network expansions, citing national security concerns of exposing such networks to Chinese authorities.
One of the charges against Huawei in the Meng case is the alleged theft of trade secrets from U.S. entities such as T-Mobile USA.
The Meng case’s first two years also coincided with Trump’s time in office, where the White House exerted unprecedented pressure in Beijing in implementing tariffs and challenging China’s positions on a number of issues.