The US plans to go ahead with the criminal charge against diplomat Devyani Khobragade even if, and when, she acquires full diplomatic immunity.
"We have no intention of dropping the case," said a US government source on condition of anonymity, adding it will only be frozen, not killed, by her immunity status.
The government is also likely to not make much of the $4,500 cited as her housekeeper Sangeeta Richard’s salary in her visa application last November.
That’s a “red-herring that should not detract” from the case, which, it was argued, was mainly the diplomat’s failure to pay the housekeeper $9.75 an hour as promised.
But the government was prepared to back up, for argument’s sake, the $4,500 question saying it was not outside her means given her Indian assets -- 11 properties.
But that’s just for argument’s sake, as said before.
Manhattan US attorney's office has until January 12 to bring an indictment against Khobragade -- it has to be done within 30 days of arrest, and that process is currently under way.
But her transfer to the UN, which will bring her full diplomatic immunity, will protect her from prosecution or arrest, or even additional charges.
It will also freeze the case for the duration of her UN tenure as she cannot be forced to appear in court, and “cannot be tried in absentia under US laws," the source added.
Under the protection of UN immunity, she can leave for India or any other country and escape being tried, but only temporarily. She will be tried whenever she returns.
The charges -- of visa fraud and making false statement-- are not being dropped or withdrawn, sources emphasized. they will merely be suspended from he day she gets the immunity.
The US state department, which is processing Khobragade’s UN papers for immunity, on Monday couldn’t give a timeframe for when it expected to complete it.
It can take up to two or three weeks, according to diplomatic sources.
When it comes through, Khobragade's lawyer Dan Arshack has argued, it can make the US court dealing with the case dismiss it citing his client's immunity status.
US government sources countered that the defendant can certainly ask the court to dismiss the case, but prosecutors may challenge it and argue for the case to be kept open.
Doors would remain open, it is being suggested, in the meantime, for a plea deal, which is a part of the US penal system, affording defendants lighter punishment.
“There is room for flexibility in the system,” another source said, adding, “it’s not uncommon for first time visa-fraud offenders to get away without a jail term.”
Khobragade faces a maximum of 15 years in jail if convicted on those two charges. But that’s only the maximum, not the minimum or standard sentence for such offenses.