Stanley Marcuss, a Washington-based lawyer who helped draft the act, discussed the law with RFE/RL as it relates to the Kazakh case. He said the law goes after the initiator of a bribe, not the recipient.
"The nature of the statute is such that it penalizes those who pay bribes, not those who receive them. So, it's natural that the recipient would not be prosecuted. But because there are foreign government officials involved, there is bound to be some degree of political consideration that has to go into the U.S. government's assessment of whether or not to prosecute," Marcuss said.
Many observers say it is unlikely that Kazakh President Nursultan Nazarbaev will ever be indicted: first, because he is not a U.S. citizen; second, because of the political consequences of such an indictment. U.S. Federal Judge William Pauley, who is presiding over the case, acknowledged during the last public hearing in June 2004 that he is well aware of the possible political implications of Kazakhgate.
Some legal scholars say certain statutes of limitation may already have expired, thus making the prospect of Nazarbaev's indictment even more remote.
Marcuss believes the case is unlikely to become a topic for discussion at the highest levels. "There is no question that the case is bound to be a matter of embarrassment, at a minimum, it seems to me, to the president of Kazakhstan, Nazarbaev," he said. "But I doubt that it would be a matter of discussion between [U.S.] President [George W.] Bush and President Nazarbaev because the practice and the custom is for U.S. government officials not to talk about any case that is under either investigation or prosecution with any of the people who are involved in the case."
Donald Zarin, a Washington-based lawyer and the author of a book about the Foreign Corrupt Practices Act, told RFE/RL that it is likely the U.S. Justice Department will continue to push ahead with its prosecution of the case, despite the current gridlock. On the other side, he said, the U.S. administration will go about its dealings with Kazakhstan as it has been doing -- without any reference to the politically explosive case. Nevertheless, the issue of corruption is one that is important to Washington.
"Right now, corruption is a significant issue in the media, in government, in terms of economic-development-related issues. And it's become a major policy issue of the U.S. government in terms of trying to reduce corruption in countries that are developing countries," Zarin said.
Zarin noted that, under the Foreign Corrupt Practices Act, the conduct in question must have occurred no later than five years before prosecution is started. The indictment against Giffen was announced in April 2003. Some of the charges relate to events that are alleged to have taken place more than five years before that, some less.
By pressing ahead, Zarin said the U.S. Justice Department is signaling the importance it places on the case. However, U.S. foreign-policy priorities, he said, will take precedence. "I think that the other [U.S.] foreign-policy issues will certainly override this issue. An ongoing investigation and indictment in criminal charges against [James] Giffen and others that involve the president [Nazarbaev] -- collateral, what's going to be the impact? And I think the impact will be minimal because there are overriding other foreign-policy issues," Zarin said.
William J. Schwartz, an attorney with Giffen's defense team, declined to comment on the case to RFE/RL.
A new trial date has been set for January 2006.
Kazakhstan Again Features In U.S. Efforts To Combat Corruption
Kazakh Official Vows Not To Interfere In 'Kazakhgate' Trial