Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. Last week in the Southern District of New York, federal prosecutors announced charges against an Indian national, Nikhil Gupta. According to the indictment, “The defendant directed a plot to assassinate on U.S. soil an attorney and political activist who is a U.S. citizen of Indian origin, residing in New York City.” The foiled plot comes just over two months after Canadian Prime Minister Justin Trudeau accused Indian agents of assassinating a Sikh leader in Vancouver, Canada. Both targets were North American-based leaders in the Sikh separatist movement.

They were vocal in their support of the Sikh-heavy Punjab state to secede from India. We welcome back CAFE veteran, John Carlin, to discuss the implications of these two plots, which have the potential to upset the relationship between India and the West. John is a former federal prosecutor. He led the National Security Division at the DOJ under President Obama, and served most recently as Principal Associate Deputy Attorney General in the early days of the Biden administration. Most importantly, of course, he once hosted the Cyber Space podcast here at CAFE. John Carlin, welcome back.

John Carlin:

Great to be back, Preet.

Preet Bharara:

So you and I both have handled all kinds of cases far-flung with national security implications, you in particular. You see this indictment and you read the facts and you read about the plot, and even though you have vast experience here, how nutty is this case?

John Carlin:

I think we got a couple others that have similarly crazy facts, but what’s unique about this case is that a ally of the United States or someone working for that ally inside the government would try to commit such a brazen assassination plot on U.S. soil with all the risks that that entails.

Preet Bharara:

Yeah. I mean, this is not like Putin trying to off someone in the UK. This is qualitatively different from that.

John Carlin:

Yeah, and we’ve had a couple others as you lived, and when we worked together, where Iranian officials and at the direction of the Iranian state, there was a plot to assassinate a ambassador for Saudi Arabia on U.S. soil.

Preet Bharara:

In Washington D.C.

John Carlin:

And that, when it first came in seemed unreal.

Preet Bharara:

Yeah. No, I remember it very well. It’s funny, I looked it up in preparation for this, and it was in 2011, which I can’t believe was 12 years ago. It seems like it was yesterday. Let’s talk first about some of the allegations in the indictment and what the plot was about.

You have a gentleman who’s charged Nikhil Gupta, who is accused of conspiring with someone that the indictment refers to as CC-1, co-conspirator 1, who is described as an identified Indian government employee, back and forth with an undercover and with a confidential source with recordings and text messages obtained by the government, talking in great detail about their interest, the Indian government’s interest apparently, in assassinating this U.S. citizen. Why is it, as an initial matter, do you think they would only name Nikhil Gupta the defendant and not the co-conspirator who is an Indian government employee?

John Carlin:

It depends on the state of where they’re able to bring charges and what, if any, other additional steps that they might take. So I don’t think you can tell reading the indictment alone why they made the choice not to name the individual.

Preet Bharara:

Well, could it be because they’d only wanted to name an individual they could bring into custody, because we should also point out, as the government has stated, that Gupta was apprehended in the Czech Republic while they were investigating the plot? So if you’re engaging in a murder for hire plot from some foreign safe country, probably shouldn’t travel. Is that fair?

John Carlin:

There have been some good lesson examples of no matter how long it takes, if you travel, the reach of U.S. law enforcement is long and the memory even longer. I thought it was interesting here is you can see that he was arrested in late June, but the indictment was only made public now, and to me, that reads as if they were taking additional investigative steps. Another interesting little detail, though, is it wasn’t under seal. So while it got publicized now, I didn’t see any unsealing order, which means there was a murder-for-hire plot sitting publicly if someone had figured it out on the docket while they took these additional steps.

Preet Bharara:

The other thing that’s important to point out here that relates to the gravity of the alleged plot or plots, as I mentioned in the intro, is that a couple of months ago, very controversially, Prime Minister Justin Trudeau made a severe, serious accusation about who was responsible for the assassination of a Canadian Sikh, Hardeep Singh Nijjar. Do you remember at the time … I mean, I had lots of people sort of texting and emailing and saying, “What do you think of this?” It’s a pretty significant thing for the head of one state to accuse another country, and the head of that other state, in engaging in an assassination plot on the soil of the first state. This indictment describes a plot that is totally, completely bound up and wrapped up in the actual killing of Nijjar in Canada.

Now, sometimes you have these plots, including the one that you and I were talking about before, at the behest of the Iranians, Arbabsiar in 2011. You never quite know how real those plots are when they’re foiled or disrupted, right, John? Here, there’s a dead person in Canada. Maybe you can even point to some of the quotes in the indictment. There’s a dead person in connection with this plot already. What does that tell you about how serious this was?

John Carlin:

Yeah, it’s a great point, Preet. And I thought just as craft, when you think about what the prosecutors were thinking and what they put into the indictment, that they took great pains to show that this was a real attempt to commit the assassination, because to your point, it does sound outlandish, and there’s always a defense, maybe they were lured, this wasn’t really that serious, it wouldn’t occur. And so what they did … A couple of details stuck out to me. So one was they put into the indictment that the night of the murder and …

Well, first, that prior to the assassination, that there had been discussion between the confidential sources working for the U.S. government and the person purporting to hire him as a hitman, where they said, “We’re doing something similar with another target,” so they previewed it, and then, the night that he’s murdered, they send a video clip. So from the Indian government employee to Gupta that shows the bloody body of this assassinated opposition voice.

Preet Bharara:

The Indian government employee, as you said, sends the defendant, in this case, a video clip showing the bloody body, and the defendant, in this case, in the SDNY indictment says, “Replied that he wished he had personally conducted the killing and asked the government employee for permission to go to the field.” So these are very, very much bound up with each other.

John Carlin:

Yeah, and he references too, it’s kind of too much to do, essentially is the tone, because he says Nijjar was also the target, and we have so many targets in reference to this plot. And the other thing they really nailed down is the money.

Preet Bharara:

Yeah. Oh, yeah. So we should talk what the going price was for this murder for hire. What was it?

John Carlin:

Total was $150,000, and then as you’ve lived … So sometimes you’ll have these discussions and they’ll talk about a payment, but they haven’t made the payment, so there’s this question, “Well, would they really have done the payment?” But here, in the indictment, with a photograph, they make a down payment and they photograph the cash, which is pretty compelling.

Preet Bharara:

Yeah, 30%. Yeah. Just more from the indictment about the connection between the assassination, the accomplished assassination of Nijjar in Canada and the alleged plot in the United States, the defendant here was told after Nijjar was killed, “Not to worry because we have so many targets.” As you said, “We have so many targets. But the good news is this, the good news is this, now, no need to wait.”

Then further, and I want to get your reaction to this, Gupta, who’s the defendant in the SDNY case, tells the confidential source that he needs to kill the victim as soon as possible, and he also warns him. He says, “He will be more cautious because in Canada, his colleague is down. His colleague is down. I sent you the video, so he’ll be more cautious, so we should not give them the chance, any chance,” and then he goes on to say to the person he thinks is going to commit the assassination, “If he’s not alone, if there are two guys with him in the meeting or something, put everyone down. Put everyone down.” What do you make of that?

John Carlin:

That was truly chilling and goes to the question of, “What were they thinking that they would allow such an attack on U.S. soil with all the consequences that could take place between the two countries, between the two countries that are allies?” And there’s the target of the assassination, and then it could be just completely innocent civilians hit on U.S. soil, which would demand even a stronger response than what you’ve seen here, and it has the potential to sever relations and have profound impacts on geopolitics. Why would they take that risk?

Preet Bharara:

I think that’s a good segue to taking a step behind the scenes, where you and I have been on many occasions, and we may have slightly different views about this, I don’t know. Tell us how you predict this is unfolding behind the scenes. So the Justice Department with a UC, undercover and a confidential source is gaining information. So they know about this plot in June, and then Nijjar is actually killed while they’re investigating this plot, so they know it’s deadly serious, literally so. At what point, generally speaking, if ever, does the President of the United States get informed of a criminal investigation and/or diplomats and other officials in the Department of State?

John Carlin:

So this is an unusual and interesting area for criminal justice system. So the general rule by custom, although it’s not a law, is that the Justice Department and the District Attorney General has been quite outspoken and firm on it, as have others, that the Justice Department makes without consideration or direction from others in government, makes the decision based on the facts in the law of whether or not there’s a criminal charge and whether or not to bring it.

Preet Bharara:

So that’s a norm.

John Carlin:

That’s a norm. Yes, exactly. That seems-

Preet Bharara:

I saw that observed in the breach on more than one occasion, John, and resulted in some fighting.

John Carlin:

Yeah. So what I would add to that, though, is in national security cases, I think it is appropriate for, and there’s a mechanism to do it through the National Security Council, where often, the cases we bring, especially in this area, when they involve foreign policy or even in terrorism cases or others, you’re trying to use all instruments of government power to achieve your goal, like for here, the goal would be to deter people from trying to do assassination plots on U.S. soil. And so there is a mechanism to inform so that you can get the views of others in the national security community when you make decisions, and particularly, Preet, this is one you and I have worked on before about timing, you don’t always know when you’re sitting in the Justice Department and you’re focused on prosecutions, how doing an arrest might actually cause in the most extreme circumstances, physical safety risks. We’ve had cases where you wanted to inform the Department of Defense so they would be prepared for potential retaliatory attacks against U.S. troops or others, or might result in severe foreign policy consequence. And so you have these discussions particularly about timing, so it’s usually not whether or not ultimately you’ll bring the charge.

And one that I remember vividly with you that’s been made public by a former Defense Secretary Gates, so he recounted the conversations was the case that led to the show, the Americans, and where we had planned a takedown not realizing that at that point, relations were pretty good with Russia, and it wasn’t Putin. It was supposedly going to be his success for Medvedev was coming to the United States, which we didn’t know. We were not planning on …

Preet Bharara:

And Secretary Gates has revealed, or according to him, that an accommodation was made by the Justice Department and the FBI in terms of the arrests of those Russian spies to wait that weekend until Medvedev had cleared North American airspace. So accommodations are made sometimes in those regards, but how much agita do you think, and we’re just speculating here, our State Department and diplomatic officials are feeling about these arrests and this conduct at a time when India looms very, very large, both as a counterweight to China, as a counterweight to Russia? In some ways, the necessity of having India be close to us is really high. What do you think those conversations were like? And I know you don’t have any inside information, but what’s your guess?

John Carlin:

Yeah, so reading in the tea leaves here, and I thought this was interesting too, because we’re talking about how in the U.S. government, you try not to take law enforcement actions at a time that they’ll cause maximum harm to our foreign policy objectives. In the indictment, it blaze out-

Preet Bharara:

Oh, yes. It’s great. It’s unbelievable.

John Carlin:

… that this guy organizing the assassination is thinking about the same thing, and he doesn’t want … So I’ll just go into the detail of it. He tells the undercover to not carry out the murder around the time that the leader of India, Modi, is coming to visit the United States for a state visit, and if you Google their timing, that was the state dinner. So it was a pretty important event with President Biden, and so he gets very specific, and this is where they give the date and says, “Don’t do it before June 11th. It has to take place after June 24th, so we don’t have this impact on relations,” which to me shows they completely didn’t understand the impact that would’ve occurred if they had been successful in carrying out this murder, because whether it happened on June 11th or June 25th, if it got attributed to the Indian state doing an assassination on U.S. oil, it would still have immense and, I think, at least short-term irreparable harm to the relationship.

But to your question of what I think they’re doing now is in between these two events, between the arrest and making it public, the indictment lays out very clearly that this is a government employee and gives details that this government employee is able to make assurances to the undercover agent that he has the ability to have a criminal case against the agent in India dropped, which seems to show that he really is a government employee, plus his concern about the state dinner, but there is some space, as you laid out in the beginning, between this particular person somewhere in the government and whether or not at the highest levels of the government, they had awareness. And what I suspect is there’s both public statements giving that space, and then privately, there’s very firm and direct messages about the consequences where this to happen again, but they’re trying to give space for India to investigate and conclude that this is unacceptable behavior.

Preet Bharara:

I know I’m asking you to speculate a lot about behind-the-scenes conversations, but I’m a little bit trying to break down the fourth wall. Is there a scenario in which the Justice Department would’ve been told or persuaded by the Department of State to not include an allegation that Modi approved of this assassination attempt because it’s unnecessary to proving the elements against this defendant, Nikhil Gupta, and if so, how would that be received by the Justice Department?

John Carlin:

Boy, that’s a bit hypothetical. Well, I’ll say is, again, it looks to me like the team of prosecutors actually included a lot of compelling detail, which isn’t one of the elements of the offense about the person’s status as a government official, including details that would make it credible, not just that he claimed that he was a government official, but the state dinner detail, the dropping of the arrest detail, other details.

Preet Bharara:

So why is that in there? I mean, obviously it tells the story, it gives rise to an understanding of the gravity of the situation, but otherwise, why would you … Is there any other reason to put that in there?

John Carlin:

When you also tie it to the details about the connection to the Canadian plot, it helps show that this isn’t farfetched, but that this was a real assassination attempt. That’s the legitimate reason why a line prosecutor, working with an agent, would want to include that detail to have the most compelling case. To your question, I don’t think it’s inappropriate for the Justice Department to consider what to include, especially in a speaking indictment about additional detail that’s uncharged, but it would be extraordinary if they had compelling and admissible evidence and thought that they needed it for the case to drop it.

Preet Bharara:

Yeah.

John Carlin:

Just here, it’s just hard to speculate where they were on that spectrum.

Preet Bharara:

Given what you see in the indictment and the methods used, and the undercover and the confidential source, how strong do you think this case is at trial?

John Carlin:

It looks like a very compelling case.

Preet Bharara:

Yeah.

John Carlin:

Wouldn’t you like to try it, Preet? I’d love to get in there and try this case.

Preet Bharara:

I would love to try it. Even I could get a conviction, I think, in this case.

John Carlin:

The photo of the cash, the recordings.

Preet Bharara:

The photo of the cash is very compelling and the recordings. Great work by the agencies here. Are there any challenges relating to intelligence gathering or anything else that you can predict might be an issue in the trial?

John Carlin:

Again, speculating, but I would bet that some of the time that was taken between this announcement and the arrest was shoring up through criminal process, that they’d be able to admit evidence without getting tips or leads from information that was collected through intelligence sources or methods that would raise classified information protection. One thing that’s interesting here is what you’re seeing, and this has been true generally with the transnational repression, as they’re calling it, efforts, obviously assassination has taken it to a whole new level, but you’re seeing governments use cutouts were there, and we saw this back with the Iranians with Arbabsiar, and in a more recent Iranian plot, they’re using criminals, and so they’re running into law enforcement efforts where it’s purely a law enforcement case. So instead of this being intel v intel, you have the head of the, and a good friend of you in the show, Anne Milgram, the head of the DEA, involved because they ended up reaching out to DEA sources.

Preet Bharara:

I wonder how this will unfold, not this trial, but how whatever plot or plots remain, how they will unfold. Just reminding folks of what we talked about earlier, that the defendant here told the undercover that Nijjar in Canada was number four, number three in the list, and that we have so many targets. Do you think this is a hard … I keep asking you to speculate, so I apologize. It’s an impossible task, but at this point, with the murder that was successful in Canada, the foiled murder plot in the United States, do you think that everyone is still full force investigating other murder plots, and/or do you think that there’s been a sufficiently successful disruption of these assassination attempts? I know it’s impossible to tell, but how do you think about that?

John Carlin:

I guess I’ll answer it a different way, which is I think vitally important is that these disruptions are so noisy, so public with such consequences, that it changes the calculus, and we go back to a deterrence where people would think, “This is just nuts. You can’t try to do an assassination of a U.S. citizen.” One thing I thought, if you look at all the press comments from the officials, they all focus on the fact that it’s an assassination attempt on a U.S. citizen on U.S. soil.

Preet Bharara:

On U.S. soil.

John Carlin:

And I do think that’s important-

Preet Bharara:

Yeah. If you wanted to do it in Bolivia, maybe not as bad.

John Carlin:

Yeah, although I thought it was a little overstated, and I assume this was a bad quote, it’s ultimately isn’t funny, but your replacement as U.S. Attorney of the Southern District, Damian Williams, a good guy, said, “We will not tolerate efforts to assassinate U.S. citizens on U.S. soil.” Well, hopefully, we just don’t tolerate efforts to assassinate U.S. citizens regardless of where it takes place, but I think what he was trying to say, and you hear it more clearly from the other officials, is that there is a increased level of chutzpah and an attack on the sovereignty of our state by trying to conduct these operations here, and as you pointed out in that chilling detail, it also raises the stakes that even if you, as the foreign state, think you’re being super targeted and who you’re aiming for, you could end up hitting civilians and lead to something that could even lead to armed conflict between countries.

Preet Bharara:

Yeah. You and I are not foreign service folks, Department of State folks, but I would love to pick the brain of somebody on the diplomatic side who could analyze in the future maybe, what the next steps are between Biden and Modi, and how the United States can both uphold the rule of law, the sanctity of its own citizens, but also maintain relationships, and it’s a sticky wicket, I think, as they say.

John Carlin:

Right, and you hope that it wasn’t something that was massive understatement, but you hope that it wasn’t countenance at the highest levels, and that it really was someone trying to execute their country’s policy, but not doing so in a way that fully took them to account all the risks, in which case, they could take action and show that it won’t happen again, but you raised the point. If we continue to see assassinations, it’s going to demand some break between relations, and it couldn’t be a worse time for that type of break to occur when you consider all the other turmoil that’s going on in the world right now.

Preet Bharara:

Well, we’ll file the case closely. Thank you for taking time out of your schedule. John Carlin, thanks so much. For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney, Joyce Vance.

Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice.

Tweet them to me @PreetBharara with the #AskPreet. You can also now reach me on threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper, the technical director is David Tatasciore, the senior producer is Adam Waller, the editorial producer is Noa Azulai, and the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Nat Weiner, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.