UPDATED: US court case on Tinubu's past forfeiture is civil, not criminal matter

The presidency says the ongoing US court case involving President Bola Tinubu is a civil matter and not a criminal matter.

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Presidential spokesperson Bayo Onanuga described the matter as a “civil records-disclosure dispute” under the US FOIA and said no court had found Mr Tinubu guilty of criminal wrongdoing.

“The matter is a civil records-disclosure dispute under the United States Freedom of Information Act. It is not a criminal case against President Bola Ahmed Tinubu, nor has the court found him guilty of any criminal wrongdoing,” Mr Onanuga said.

Mr Onanuga accused the opposition of mischaracterising the matter that involves the civil forfeiture of funds by Mr Tinubu to the US government while he was being investigated for drug-related offences in 1993, six years before Mr Tinubu was elected the governor of Lagos State.

The presidency accused opposition figures of mischaracterising the case and stressed that the court, rather than political actors, would determine which records can be released.

Mr Onanuga said the case was “exclusively within the control” of Judge Howell and would be determined on the basis of evidence, applicable law and arguments from the parties.

He also dismissed recent comments by a lobbyist, Karl von Batten, saying neither Mr Batten nor his client, former Vice President Atiku Abubakar, is a party to the case.

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Mr Onanuga added that the American Consulate in Lagos, in a letter dated 4 February 2003, informed the then Inspector General of Police, Tafa Balogun, that an FBI records check found no criminal arrest records, wants, or warrants for then Governor Bola Ahmed Tinubu.

What the case is about

An American transparency activist, Aaron Greenspan and a Nigerian journalist, David Hundeyin, submitted a series of FOIA requests between 2022 and 2023 to US government agencies seeking records relating to Mr Tinubu and Abiodun Agbele.

The requests concerned records from a joint investigation involving the FBI, DEA, Internal Revenue Service and US attorneys’ offices in Illinois and Indiana. Mr Greenspan said the records related to charging decisions involving the activities of a Chicago heroin ring that operated in the early 1990s.

The individuals named in his requests included Mr Tinubu, Lee Andrew Edwards, Mueez Akande and Mr Agbele.

The agencies initially issued what is known as a “Glomar response”, a legal position that allows a government agency to refuse to confirm or deny the existence of records where doing so could reveal protected information.

Mr Greenspan challenged the responses before the US Department of Justice’s Office of Information Policy, but the agency upheld the decision.

He subsequently filed the lawsuit on 12 June 2023 against the FBI, DEA, IRS, Executive Office for US Attorneys and Department of State. The CIA was later added as a defendant.

The court also permitted President Tinubu to participate in the proceedings as an intervenor.

FBI submit case files to judge

Meanwhile, the FBI recently submitted records relating to the 1993 investigation involving President Tinubu to a federal judge in Washington, D.C., but the documents will remain under seal for now.

The records were delivered to Judge Beryl Howell of the United States District Court for the District of Columbia on 28 August, according to court filings cited in the ongoing FOI lawsuit.

The filing said the records were submitted “under seal, ex parte, in camera” in compliance with a 20 August court order, meaning the judge reviewed them privately and they were not made available to the plaintiff, Aaron Greenspan, or the public.

The FBI and the Drug Enforcement Administration (DEA) have since produced 399 pages of records, although portions were redacted under exemptions contained in US law. Mr Greenspan is challenging the redactions and seeking wider disclosure.

Mr Greenspan has until 11 September to file an opposition and reply to processes filed by the defendants and Mr Tinubu, while the FBI, DEA and Mr Tinubu have until 18 September to respond.

The outcome will determine whether additional records sought by Mr Greenspan can be released or remain protected under the exemptions relied upon by the US agencies and Mr Tinubu.

Tinubu intervenes

When Mr Tinubu intervened in the case, he argued that the requested documents could contain confidential tax information and law enforcement records protected under US privacy laws.

His lawyers also argued that the release of investigative files could infringe his privacy rights even where some information about the 1993 forfeiture proceedings had previously entered the public domain.

“Regardless of the prior disclosure in the forfeiture proceeding, Intervenor retains a privacy interest in potential disclosure of the investigative files sought by Plaintiff,” his lawyers argued.

The dispute centres partly on the forfeiture of $460,000 by Mr Tinubu to the US government in 1993 after American authorities linked the funds to proceeds of narcotics trafficking, according to the documents cited in the draft.

FBI, DEA defend redactions

The FBI and DEA have argued that some of the withheld information is protected by US law.

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Their reasons include protections covering grand jury proceedings, attorney-client communications, law enforcement material, personal privacy, confidential sources and investigative techniques.

Mr Tinubu has also invoked a FOIA exemption relating to personal privacy.

The latest submission to Judge Howell came after the FBI faced a deadline to provide the records for the court’s consideration.

According to the documents, the judge had directed the FBI to submit the material by 28 August. The bureau complied by providing the records directly to the court rather than releasing them to Greenspan.

The records therefore remain subject to the court’s determination on whether the FBI and DEA were legally entitled to withhold or redact the material.