Ms. Meng for the Michaels: Why the Timing?

Stuff happens during an election campaign, and it can affect the results. During the 2020 presidential election, President Trump contracted and recovered from Covid – 19, Supreme Court Justice Ruth Bader Ginsburg died, and Amy Coney Barrett was confirmed to replace her. During the recent Canadian election Premier Kenny admitted the failure of Alberta’s approach to the pandemic, discrediting the pandemic plank in the Conservatives’ platform. This enormously benefitting the Liberals.

A Hypothetical and a Question

Had China released the two Michaels during the election campaign, it would also have helped the Liberal Party, demonstrating that the Government’s approach – respect for the extradition process regarding Ms. Meng coupled with multilateral advocacy on behalf of the two Michaels – was successful. The Conservatives were criticizing the Trudeau Government for its failure to win their freedom, and that critique would have been mooted or at least muted.

But China released the two Michaels the week after the election, when it had no impact. Journalists and scholars have questioned whether there was any relationship between the timing of their release and the election. The CBC’s Rosemary Barton asked that directly of Global Affairs Minister Marc Garneau, and he flatly denied it.

It is worth considering the question more deeply in terms of the chronology of events and the Government of Canada’s caretaker convention, which regulates the activities of ministers between the time Parliament is dissolved and a new Government is sworn in.

A Tale of Two Phone Calls

Recent articles in both The Globe and Mail and The Toronto Star about the process of negotiating Ms. Meng’s deferred prosecution agreement and China’s decision to release the two Michaels identify the telephone call between President Biden and Premier Xi on September 9 as the critical conversation. Both US and Chinese government sources deny that there were any negotiations during the call, but they confirm that Biden raised the issue of the two Canadians and Xi raised the issue of Ms. Meng. Is this all smoke and mirrors? (The White House readout for the phone call makes no mention of specific issues that were discussed.)

I am reminded of the writings of the eminent political scientist Charles Lindblom, who developed a theory of “parametric mutual adjustment,” which includes a variety of ways in which organizations and their leaders can influence one another. Even if there was no explicit quid pro quo in the phone call, the two leaders and all their aides listening in recognized a mutual interest in ending the dispute.

The phone call provided sufficient direction for Biden’s aides to encourage the Justice Department, acting under its mandated independence, to complete the deferred prosecution agreement and for Xi’s aides to plan the return of Ms. Meng and the release of the two Michaels.

The second phone call was between President Biden and Prime Minister Trudeau on September 21, the day after the election. The PMO readout is much more detailed than the White House readout of the Xi call. It includes the sentence “The Prime Minister and President discussed China’s arbitrary detention of Canadian citizens Michael Spavor and Michael Kovrig.” Presumably, their discussion was not about the arbitrariness of the detention, but rather confirmation than everything was in place to bring it to an end later in the week.

A total of two weeks and a day lapsed between the Biden-Xi conversation on September 9 and the court proceedings in New York and Vancouver and simultaneous flights on September 24. Given the number of players and complexity of the process, two weeks seems very reasonable. According to The New York Times,  the negotiations between the Justice Department and Ms. Meng’s lawyers were completed on Sunday, September 19, the day before the election. While Justin Trudeau and the Liberal Party might have wished the whole process could have been wrapped up in one week, that was impossible.

Direction from the Caretaker Convention

The caretaker convention permits the activities of the Trudeau Government – most likely in the person of Global Affairs Minister Garneau and his department – to free the two Michaels. This matter was without doubt “urgent and in the public interest.” The convention also provides a relevant example, namely “When negotiations are at a critical juncture with timelines beyond Canada’s control, the failure to participate in ongoing negotiations during the caretaker period could negatively impact Canada’s interests.”

The convention also says, “ministers must avoid participating in high-profile government-related domestic and international events.” Furthermore, “in the context of an election [ministers] must be especially vigilant with respect to the distinction between official government business, supported by departmental and portfolio resources, and partisan political activities, taking care to avoid even the appearance that departmental and portfolio resources are being used for campaign purposes.” I interpret these clauses as restricting Trudeau and Garneau from greeting the two Michaels upon their return (as they did after the election) or explicitly referring to their success at freeing them in election speeches or ads.

There is a precedent here. The six American diplomats sheltered by Canadian diplomats in Tehran were released during the 1979-1980 federal election campaign, a saga known as “the Canadian caper.” The Clark Government, with a little clandestine help from American friends, directed the caper and could have made political hay out of its success. To his credit, Clark did not.

The Last Word

It was entirely appropriate for the Trudeau Government to work on freeing the two Michaels during the caretaker period. But it would have equally inappropriate for ministers, including Trudeau, to have taken a political victory lap if the Michaels had been released during the campaign. Trudeau could have simply relied on the Latin adage res ipsa loquitur.

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