The indictment of ex-US President Trump for financial crimes related to his personal business was historic but it also has relevance to Nigeria’s impending presidency.

In a sense, Trump and ex-Gov Bola Tinubu, the INEC-declared-elect from Nigeria’s recent presidential elections have somewhat similar financial malfeasance.

Trump masked hush money payments to a pornographer he had an affair with as “legal fees” while Tinubu banked money from illicit narcotics trade to mask them as legitimate. Both actions were a form of money laundering – hiding the source or object of funds pursuant to the commission of a crime.

There are a few dissimilarities though. Firstly, Trump allegedly utilized funds from his legitimate businesses for an illegitimate purpose i.e. to bribe his porn sex partner to protect his political ambition.

Tinubu conversely legitimized funds illegally procured through street sales by drug dealers via insinuating them into the banking system.

A second distinction is that while Trump’s alleged crime involved a personal matter, a personal company and national elections, Tinubu’s involved organized crime with national and international ramifications.

It should also be noted that Trump perpetrated an elaborate scheme to masquerade the $160,000 bribe as legal fees, while Tinubu did not do a very good job of hiding the drug money’s source. He actually admitted in a phone conversation with a US investigator that he got the money from the named drug lords. He was also unable to explain how he had over a million dollars in his accounts on a salary of $2400 a month.

Like Trump’s lawyer, Cohen, Tinubu’s accomplices were also jailed.

However while Tinubu himself was not criminally charged along with them, Trump has been charged subsequent to the conviction of his lawyer.

Tinubu also faced a subsequent legal action as the Department of Justice filed a civil forfeiture action for drug money laundering.

It is the nature and effect of his eventual forfeiture settlement agreement and the US district court’s judgment that is the source of debate in Nigeria being a ground in the Labour Party’s election petition.

Suffice it to say that the circumstances that led to Tinubu’s forfeiture of $460,000 to the US government were entirely criminal in nature.

The 4^th amendment to the US Constitution protects individuals from “unreasonable search and seizure.”

A couple of recognized exceptions are the doctrine of “eminent domain” where a government can take over real property for the public good such as a road construction but it must be “legal” and be with compensation.

The other Is asset forfeiture resulting from crimes or proceeds of crime.

The US Department of Justice can file for forfeiture either through civil or criminal forfeiture actions. Regardless of which tool or procedure they utilize for this purpose at their professional discretion, the underlying subject matter is of a criminal nature.

It should be noted that there have been a recent rash of asset forfeitures that have occurred recently. They relate to the freezing of assets of Russian oligarchs pursuant to global sanctions imposed as a result of Putin’s Ukraine invasion. While this is not stricto senso related to organized crime, it in a sense relates to war crimes and most of these assets, like luxury yachts are not all permanently forfeited but temporarily so.

It is noteworthy that the Nigerian government itself has pursued forfeiture of assets looted from Nigeria in the US as well including those of former Nigerian oil minister Deziani Madueke such as jewelry and a luxury yacht.

It would therefore be highly hypocritical of the Nigerian government which used the very similar forfeiture tools against ex-officials recently to claim that Tinubu’s forfeiture was anything other than deriving from illicit activity.

One key question is why did Tinubu not go to prison like the drug lords to whom he was banker?

This can best be understood in the context of practice in the US legal system where 99% of cases do not go through complete trial. Due to the cost and length of litigation, most civil lawsuits settle and many criminal prosecutions plea deal for the sake of judicial economy.

A former senior asset forfeiture official told me that factors that are considered in not bringing charges against a drug money launderer include if the person is not readily available in the jurisdiction.

It appears Tinubu was working in Nigeria at the time as the lead investigator Kevin Moss said in his verifying affidavit that he phoned Tinubu in Nigeria for interrogation.

But another reason could be that he settled the forfeiture matter without prosecution and imprisonment by covertly agreeing to provide evidence against his coconspirators.

Recently, shady Lebanese Nigerian businessman Gilbert Chagoury was charged with election finance violations in the US. However he obtained some concession supposedly because of unexplained cooperation with the US authorities. According to Bloomberg,

“Between 2012 and 2016, Chagoury sought to help fund election campaigns of U.S. politicians believed to be “supportive to his cause” according to documents filed by the U.S. in the Fortenberry case. In total, he provided about $180,000 to four U.S. political candidates, according to a deal he reached with the Justice Department. Foreign nationals are prohibited from contributing to U.S. campaigns.

Chagoury paid $1.8 million in fines in December 2019 to resolve the investigation, the Justice Department announced last March. His “unique assistance to the United States” helped close the probe, his deferred prosecution agreement said, without specifying the nature of the assistance.”

Chagoury whose crimes even led to the ouster and conviction of U.S. congressman Fortenberry over an illegal $30,000 campaign contribution last year strangely did not receive any jail time.

The US takes Illicit foreign election financing seriously and even the Buhari regime’s collaborator in attacks against my human rights advocacy, Doug Wead was arrested and charged with fraud in September 2021. Wead had collected $100,000 from a Russian and remitted $25,000 to the Trump disguised as a donation from his American partner in crime.

Drug money laundering is no doubt a far more serious federal crime than the state crimes that Trump has been charged with.

It also borders on financial dishonesty which the Nigerian constitution does well to guard against for prospective public officials.

James Ibori who was convicted by an Abuja Area Court and also a UK court for theft, managed to game the legal system to become Delta state governor where he continued in grander scale. After his tenure, he was arrested, extradited and again re-convicted for theft and money laundering in the UK.

More recently, the case of the notorious Hushpuppi currently jailed in the US stems from the Nigerian poseur’s money laundering on behalf of North Korean internet fraudsters. Like Ibori, western governments went to great lengths to extradite him from the middle east in possible indications that it is no longer business as usual since the Tinubu forfeiture in 1993.

One thing is clear though that if the Labour Party’s ground of Tinubu’s forfeiture was under the 1999 constitution prior to amendment, it would likely suffice as amounting to the prior disqualification standard of “indictment.”

However following the amendments to curb abuse by a rash of bogus political indictments, it will be up to the courts to ascertain whether a drug money laundering forfeiture – pursuant to a crime involving financial dishonesty meets the new standard, the intent of the drafters and the mischief to be cured of the constitution.

This perhaps explains why in the current US civil forfeiture action against over $150million looted by Abacha and laundered into the US banking system by Gov Bagudu, going on in Washington, lawyers for the Bagudu family insist that a settlement should not include the words “forfeiture”.

Nevertheless the $300 million Abacha repatriated to Nigeria in 2020 for infrastructure projects was obtained pursuant to money laundering civil forfeiture action similar to Tinubu’s case and there is no doubt that Abacha and co’s underlying actions were criminal in nature.

In conclusion, Special Agent Kevin Moss, Tinubu’s investigator said on oath (see paragraph 48 of the verified Affidavit

“there is a probable cause to believe that the funds in the accounts held by First Heritage Bank, Citibank, NA and Citibank International in the name of Bola Tinubu and Compass Finance and Investment Company Ltd represent property involved in transactions in violation of 18 USC 1956 AND 1957 or is property traceable to such property or represents the proceeds of drug trafficking making the funds in the accounts forfeitable to the United States pursuant to 18 USC 981 AND 21 USC 881”.

18 US Code 1956 (laundering of money instrument) provides:

“A (1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conduct or attempts to conduct such financial transaction which in fact involves the proceeds of specified unlawful activity…shall be sentenced to a fine of not more than $500,000…”

18 US Code 1957(Engaging in monetary transactions in property derived from specific unlawful activity) provides;

“Whoever, in any of the circumstances set forth in subsection (d), knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specific unlawful activity shall be punished as provided in subsection (b). Except as provided in paragraph (2), the punishment for an offense under this section is a fine under title 18 USC or imprisonment for not more than ten years or both.”

Therefore it is apparent that Tinubu was facing legal culpability both by way of fine or imprisonment or both but his absence from the country and his settlement with the US government limited him to only a forfeiture in the amount of $460,000 just shy of the $500,000 maximum fine.

On his part, the US District trial judge John Nordberg concluded as follows: “It is hereby Ordered that the funds in the amount of $460,000 in account 263226700 held by First Heritage Bank in the name of Bola Tinubu represent proceeds of narcotics trafficking or were involved in financial transactions in violation of 18 U.S.C.”

•Emmanuel Ogebe, Esq, is a Washington-based international human rights lawyer and Nigeria expert with the US NIGERIA LAW GROUP

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