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It was getting late on January 8 and the Indian embassy at Dupont Circle was wrapping up for the day when a communication arrived from the state department: Devyani Khobragade had been granted her UN accreditation, more importantly, full diplomatic immunity.
Finally, some good news, almost a month after Khobragade was arrested from outside her children’s school in New York, charged with visa fraud and making false statement, sparking a crisis in the India-US relations that reminded some people of 1971.
But before anyone could pull out a beer in celebration, another communication arrived from the state department, this time asking the embassy to waive the immunity just conferred on the diplomat so she could be prosecuted for the charges brought against her.
But India was prepared, said a source. As its diplomats in DC turned in for the night, the ministry of external affairs in Delhi drafted an order transferring Khobragade back to headquarters. “This was like a movie playing out, parallel things taking place at the same time,” said a source.
Next morning, on January 9, the embassy informed the state department that it won’t waive Khobragade’s newly acquired immunity. At the same time, the diplomat was given her second transfer order in recent weeks, this time calling her home.
And the state department was informed.
Everyone sat back then, waiting for the explosion.
It came shortly. “The United States Mission (to the UN) has received the (Indian) Permanent Mission’s note of January 9th declining to waive the immunity of Dr Khobragade and accordingly this Mission requests her immediate departure from the United States,” said a note from the state department.
Talks break down
It was an outcome no one expected but it was a possibility, a strong one at that especially after chances of ending the crisis through the legal route dimmed in recent days. As it became clearer that “their bottom line didn’t match ours,” said a source.
“The idea that an Indian diplomat faced criminal charges was frankly unacceptable,” said the source confirming that the main demand from India was that the US should drop the criminal case against Khobragade.
Manhattan US attorney Preet Bharara’s office in discussions with Khobragade’s lawyer Daniel Arshack would not relent. “They were only willing to reduce the case from felony to misdemeanor, which is also a criminal offense,” said the source. But it was inconceivable for an Indian diplomat to plead guilty in a criminal case -- “even if the punishment was a fine of $1”.
The talks were clearly not going anywhere. And then, to everyone’s surprise, Bharara went public with them.
“We are surprised and distressed that the prosecution has elected to publically (sic) characterize the discussions that have taken place in the manner in which they have,” said Khobragade’s lawyer Daniel Arshack in a motion filed in a Manhattan court.
He charged the prosecution with trying to “polarize” the case.
Bharara had told the court in a letter on January 6 that plea deals were being discussed with Khobragade to resolve the case out of court. “We have participated in hours of discussion in the hope of negotiating a plea that could be entered in court before January 13,” the US attorney had said.
It was clear now to India that the legal route was not working. “Once we reached that impasse, the only option we had was the route of getting a visa for her,” said the source.
On January 8, India started pressing the state department to speed up the process of granting UN accreditation to Khobragade on her transfer to India’s permanent mission to the world body.
The US had been going slow on it as it was a legally complicated decision to suddenly upgrade a diplomat’s immunity to accord her post-facto protection from prosecution in a criminal case already under way.
But things began to move that night.
In court with Bharara
Next day, as the state department asked Khobragade to leave the country, a Grand Jury in New York indicted Khobragade for visa fraud and making false statements, as charged by Manhattan US attorney’s office earlier. The two charges together could get the diplomat a maximum of 15 years in jail.
But before Bharara’s office could deliver the indictment to relevant court, of magistrate judge Sarah Netburn, Khobragade’s lawyer Daniel Arshack got to her with his client’s newly acquired immunity arguing for the case against her to be dropped.
“This afternoon, in advance of the preliminary hearing, the US department of state fully credentialed Dr Khobragade as a diplomat assigned to the Permanent Mission of India to the UN.
Correspondingly, the state department had changed her status to G-1 to reflect those credentials,” Arshack said in a motion.
“Additionally, and unexpectedly, they have required her immediate departure from the United States.”
Bharara followed up with his own note to the court, sent with the indictment, saying, “We understand that the defendant was very recently accorded diplomatic immunity status and that she departed the United States today.”
She hadn’t, her lawyer informed the prosecutor’s office, which promptly issued a clarification.
Khobragade left for India later in the night.