You are on page 1of 6

105 VICTORIA STREET, 6TH FLOOR

WESTMINSTER, LONDON, SW1E 6QT


+44 20 3617 6640

1054 31ST STREET, N.W.


SUITE 110
WASHINGTON, DC 20007
+1 202 301 8811

8 September 2020

Professor Robert Goldman


President, International Commission of Jurists
Rue des Bains 33
P.O. Box 91
1211 Geneva 8, Switzerland
info@icj.org

Dear Professor Goldman:

We write to share our grave concern about a campaign of legal intimidation by the United
States of America against the lawyers who represent the Bolivarian Republic of Venezuela
and key officials of that government. The U.S. Government seeks to prevent Venezuela and
its senior officials from being represented in ongoing proceedings before tribunals in
pending litigation around the world. To achieve this end, the U.S. is imposing sanctions on
legal representation and blatantly threatening lawyers in ways that undermine adversarial
legal process in the United States and in courtrooms across the globe. By threatening
lawyers, such as our firm, with sanctions or even criminal prosecution for representing our
clients, the U.S. government strikes at the heart of the core values of a justice system—the
safety, security, and freedom of the legal profession.

We write to you in our personal capacities as the partners of Amsterdam & Partners LLP, a
boutique law firm specializing in high profile, politically challenging cases. Our firm often
represents the victims of human rights abuses against national governments and serves as
counsel to a range of political leaders and activists. We have been retained by the Solicitor
General of Venezuela to represent and advise the government of Venezuela in sanctions-
related proceedings and other potential U.S. litigation. In this letter, however, we do not
represent any client, but write on our own behalf and that of all the lawyers who cannot
perform the most basic functions necessary for an effective and independent judiciary
because of the actions of the U.S. Government. Through these actions, the U.S. directly

REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:


105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805
Professor Robert Goldman
8 September 2020
Page 2

violates our constitutional rights as U.S. citizens and prevents us from fulfilling our duties as
members of the bar in the UK, Canada and the United States.

On 4 September 2020, the United States imposed sanctions on several Venezuelan officials,
including Reinaldo Enrique Muñoz Pedroza, the Solicitor General of Venezuela. In the
Venezuelan governance structure, it is typically the Solicitor General who retains outside
counsel to represent the government in foreign legal matters. Thus, the designation of the
Solicitor General is seemingly designed to discourage U.S. and non-U.S. persons or law firms
from doing business, including legal representation, with or through the Solicitor General
beyond the scope of a narrow general license issued by the U.S. Treasury’s Office of Foreign
Assets Control (“OFAC”). Moreover, OFAC has repeatedly refused to grant specific licensees
that would authorize broader representation as an exemption to the U.S. sanctions against
Venezuela.

While deeply problematic in its own right, the U.S. sanctions against the Solicitor General of
Venezuela are embedded in a broader intimidation campaign against lawyers and the legal
profession. More specifically, the press release from the U.S. Department of the Treasury
announcing the sanctions designation makes abundantly clear that the U.S. seeks to target
lawyers anywhere in the world who might represent the Maduro government. The release
states the new sanctions are in response to a request from the Venezuelan National Assembly
that “urged competent foreign authorities to sanction Muñoz Pedroza and lawyers
appointed by him for their political collaboration with the illegitimate Maduro regime.” 1 The
release further repeats a request that “foreign courts, international arbitration tribunals, and
other foreign authorities not to accept the representation of Muñoz Pedroza or attorneys
appointed by him as representatives of the Venezuelan government.” 2

Over the past year, U.S. political officials have repeatedly threatened lawyers hired by Muñoz
Pedroza in an effort to force them to drop their representation. For example, U.S. Senator
Rick Scott launched a public pressure campaign against Foley & Lardner LLP in Washington,
DC, a firm that had been hired by Muñoz Pedroza for assistance with sanctions issues. In an
open letter, Senator Scott told Foley & Lardner LLP, “As long as you represent a dangerous
dictator… I refuse to meet with anyone in your firm, or anyone that contracts on this matter
with your firm, regardless of the many clients you represent … And I am urging every one of
my colleagues to do the same.” 3 Owing to Senator Scott’s conduct, Foley & Lardner LLP
withdrew its representation.

1
Treasury Sanctions Maduro Regime Officials for Undermining Democratic Order in Venezuela, 4
September 2020, available at https://home.treasury.gov/news/press-releases/sm1115.
2
https://home.treasury.gov/news/press-releases/sm1115.
3
Theodoric Meyer, “Rick Scott Won’t Meet with Foley & Lardner,” Politico, January 29, 2020.
REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:
105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805
Professor Robert Goldman
8 September 2020
Page 3

Muñoz Pedroza subsequently hired our law firm, leading Senator Scott to turn his sights on
us, repeating the same inappropriate threat and noting, “I recently called on another
lobbying firm to stop working for Maduro, and they heeded that call. I urge you to do the
same.” 4 The goal of U.S. sanctions and threats such as those from Senator Scott is to prevent
the Maduro government from being represented by counsel. Having worked against the
Chavez government in Venezuela in the past, the only reason we have taken on this
representation is because of our commitment to the principle that every client deserves
representation and that the right to representation cannot be contingent on political
preferences. That principle is now under threat.

As you know, an international dispute exists over the government of Venezuela, including
whom is entitled to act in the capacity of Solicitor General in Venezuela. Although President
Nicholas Maduro maintains de facto control over the country, the Trump Administration has
made a political determination that Juan Guaidó is the Interim President of Venezuela, 5 and
U.S. sanctions are intended to advance that position. The grave concerns we raise in this
letter, however, are only derivatively related to the dispute over the recognition of public
authority in Venezuela. Rather, it is the pernicious attack on the legal profession, the power
of the judiciary, and the rule of law inherent in the U.S. sanctions regime and its intimidation
campaign that animates our concerns.

The U.S. sanctions designations of 4 September and the broader campaign targeting lawyers
hired by Solicitor General Muñoz Pedroza violate U.S. and international law. To the degree
these sanctions target lawyers, they are ultra-vires under U.S. law. Moreover, the sanctions
are abhorrent to U.S. constitutional guarantees of freedom of speech and the right to counsel.
Preventing lawyers from representing a foreign person or entity with which the U.S.
Government disagrees politically has the secondary effect of extrajudicially denying foreign
tribunals from exercising their own jurisdictional powers to decide who appropriately
represents that person or entity in their respective countries. This sanctions regime
ultimately seeks to deny Venezuela any legal representation whatsoever in pending judicial
proceedings around the world. Finally, and most perniciously, by threatening and
intimidating lawyers, these U.S. sanctions undermine the rule of law.

First, intimidation and targeting of lawyers by the U.S. Treasury through the threat or
application of sanctions is an ultra-vires exercise of power. Treasury’s September 4, 2020
sanctions designation is based on Executive Order 13692 (as amended) of March 8, 2015. A
Presidential finding in that Executive Order concludes that the “erosion of human rights
guarantees” and “persecution of political opponents” in Venezuela constituted an “unusual
and extraordinary threat to the national security and foreign policy of the United States”

4
Letter from Senator Rick Scott to Amsterdam & Partners, February 24, 2020.
5
https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-recognizing-
venezuelan-national-assembly-president-juan-guaido-interim-president-venezuela/
REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:
105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805
Professor Robert Goldman
8 September 2020
Page 4

sufficient to justify the imposition of U.S. sanctions. 6 Sanctions imposed pursuant to that
Executive Order must address the identified national security threat. Intimidation and
sanctioning of the legal profession and the denial of counsel to a foreign government in no
way advances human rights in Venezuela. There is simply no plausible nexus between the
denial of legal representation to Venezuela before foreign tribunals and the human rights
situation in the country. If anything, by attacking lawyers and undermining judicial
institutions, these sanctions exacerbate the human rights situation and make finding
political and legal paths forward far more difficult. The U.S. attack on lawyers is
fundamentally beyond the authority granted to the Treasury Department and is an ultra-
vires exercise of power.

Second, the U.S. Treasury’s intimidation of lawyers to block them from representing the
Government of Venezuela through Solicitor General Muñoz Pedroza is a direct affront to the
U.S. Constitution’s guarantees of freedom of speech and the right to counsel. The First
Amendment to the U.S. Constitution provides: “Congress shall make no law…abridging the
freedom of speech.” The Sixth Amendment guarantees a right to “the assistance of counsel.”
As officers of the court, lawyers are subject to limitations on these rights, but as the U.S.
Supreme Court has held, such restrictions cannot prevent “independent advocacy.”7
Intimidation of and the threat of sanctions against lawyers would, in the words of Justice
Breyer, “seriously chill not only the kind of activities the plaintiffs raise before us, but also
the ‘independent advocacy’ the Government purports to permit.” 8 These U.S. actions deny
lawyers, including us, the freedom to advocate and deny clients, including the Venezuelan
Solicitor General, the right to representation.

Third, these U.S. sanctions and threats amount to an extraterritorial and extrajudicial effort
to prevent the courts of other nations from making informed legal determinations as to who
constitutes the legally authorized representative of the Government of Venezuela
empowered to act in international affairs. As noted above, the U.S. has made the political
determination that Juan Guaidó is the Interim President of Venezuela and has sought to
pressure other countries to accept that determination. However, unlike in the U.S. in many
countries, the recognition of a government is not a political act. Rather, particularly in
countries with civil law traditions, recognition of governments is a judicial process
undertaken by courts and based on the de facto control of the territory in question. 9 In order
for such courts to determine, for example, who is authorized to hire counsel on behalf of
Venezuela, lawyers must be able to present their case to the relevant court. Absent
representation of the Venezuelan Government that has de facto control of the territory, such
courts are unable to perform their most basic judicial functions. The extraterritorial reach of

6
Executive Order 13692 (as amended), 8 March 2015.
7
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
8
Id.
9
Lauterpacht, Hersch. "Recognition of Governments" Colum. L. Rev. 45 (1945): 815.
REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:
105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805
Professor Robert Goldman
8 September 2020
Page 5

U.S. sanctions thereby deprives foreign tribunals of their most basic jurisdictional
authorities.

Fourth, the Treasury Department’s sanctions are part of a coordinated strategy to deny
Venezuela any representation in a range of legal proceedings in countries around the globe.
Again, the extraterritorial reach of these sanctions and U.S. threats against lawyers working
for the government of Venezuela imposes an impossible choice on lawyers in any
jurisdiction: withdraw from the representation or face possible U.S. sanctions and
intimidation. That is exactly the U.S. goal, as evidenced by the sanctions designation of Muñoz
Pedroza and statements like those of Senator Scott, noted above.

In a number of proceedings in foreign jurisdictions, the U.S. hopes an unrepresented


Venezuela will forfeit assets and that state-owned corporations will be forced into
liquidation. Currently pending cases along those lines include proceedings in the UK over the
ownership of gold deposited with the Bank of England; efforts to restructure Nynas AB in
Sweden; the reclamation of funds in Portugal deposited with NovoBanco; litigation in the
U.S. against CITGO (an asset of the Venezuelan oil company PDVSA); and investor-state
arbitrations under ICSID involving ConocoPhillips. Under the aforementioned local laws in
civil jurisdictions, Juan Guaidó cannot speak for Venezuela because he does not have de facto
control of the territory. Lawyers cannot represent the Maduro government without the real
prospect of possible allegations of U.S. sanctions violations. By ensuring that Venezuela is
wholly unrepresented in these cases, the U.S. government allows creditors or counterparties
to seize Venezuelan assets and impedes corporate restructurings that would benefit both
creditors and the Venezuelan people. With significant hearings forthcoming in the next few
weeks, notably in the ConocoPhillips arbitration, the timing of these new sanctions belies
their improper political purpose. The Solicitor General and other legal officials do not
represent a security threat to the U.S. Rather, it appears the U.S. seeks to deny Venezuela
legal representation to facilitate partisan economic gain on behalf of Juan Guaidó.

Ultimately, the U.S. intimidation campaign is a direct assault on the rule of law. The effective
operation of judicial institutions depends on the freedom of lawyers to advocate for and on
behalf of their clients. According to President Trump’s National Security Strategy: “the rule
of law is the shield that protects the individual from government corruption and abuse of
power.” 10 In many cases, it is lawyers themselves who stand at the front lines in the defence
of human rights. The UN Human Rights Council has found: “domestic law and administrative
provisions … should not hinder but enable the work of human rights defenders,” such as
lawyers, “including by avoiding any criminalization or stigmatization of the[ir] legitimate
role and important activities.” 11 When the U.S. sanctions the Solicitor General responsible for

10
National Security Strategy of the United States of America, 2017 at 1.
11
A/HRC/RES/31/32, 20 April 2016.
REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:
105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805
Professor Robert Goldman
8 September 2020
Page 6

hiring lawyers and calls for sanctions on the “lawyers appointed by him,” 12 it undermines
the very notion of the rule of law.

Our firm has a long history of representing clients in some of the most politically charged
cases of our times. We have successfully resolved, within the bounds of domestic and
international law, what have sometimes seemed intractable disputes. We have represented,
among others, Mikhail Khodorkovsky, one of Russia’s most famous former political
prisoners, the Red Shirt pro-democracy movement in Thailand, and the former President of
Zambia, Rupiah Banda. Our founding partner has been banned from six countries and subject
to criminal and civil process in three, and it was his reliance on U.S. citizenship that was
always key to his safety. Now, the very government we have relied upon to protect our most
basic rights is thwarting them in this egregious manner. For the rule of law to stand in the
U.S. and abroad, lawyers must be allowed to do their work, to represent their clients, and to
operate free of threats and intimidation.

Sincerely,

Robert R. Amsterdam Andrew J. Durkovic


London Washington, DC

AMSTERDAM & PARTNERS LLP

cc (via email):
Hon. Steven Mnuchin, Secretary of the Treasury of the United States of America
Hon. William Barr, Attorney General of the United States of America

12
https://home.treasury.gov/news/press-releases/sm1115
REGISTERED AND TRADING AS AMSTERDAM & PARTNERS LLP. REGISTERED OFFICE:
105 VICTORIA STREET, 6TH FLOOR, WESTMINSTER, LONDON, SW1E 6QT. LIMITED LIABILITY PARTNERSHIP NO. OC342567
LIST OF MEMBERS AVAILABLE FOR INSPECTION AT THE OFFICE AND WWW.AMSTERDAMANDPARTNERS.COM AUTHORISED AND REGULATED BY THE SOLICITORS
REGULATION AUTHORITY, IDENTIFICATION NO. 499805