On April 21, 2022, former Honduran president Juan Orlando Hernández, who was praised by President Donald Trump for “stopping drugs at a level that has never happened,” was extradited by Honduras to the United States on narcotics charges.Footnote 1 He appeared before a federal magistrate judge the next day and pled not guilty at his arraignment on May 10.Footnote 2 A tentative trial date has been set for January 17, 2023.Footnote 3 In the sealed superseding indictment that was handed down hours after he left office on January 27, 2022,Footnote 4 Hernández had been charged by a federal grand jury with three counts: conspiracy to import cocaine into the United States (count one); possession of machine guns and destructive devices during and in relation to a drug trafficking crime (count two); and conspiracy to possess machine guns and destructive devices (count three).Footnote 5 Though the allegations were for violations of federal narcotics laws, they amounted to charges of public corruption, as Hernández was accused of accepting bribes to use his official position, including while president, to protect traffickers transshipping cocaine through Honduras to the United States in order to enrich himself and secure and maintain political power. Honduras, the indictment alleged, was a “narco-state” during the Hernández presidency.Footnote 6 If found guilty, Hernández could be sentenced to life in prison. Hernández's indictment was anticipated, as he was implicated publicly as a co-conspirator (CC-4) in multiple prosecutions since 2019, including during the criminal proceedings against his brother, Juan Antonio (Tony) Hernández, a former member of the Honduran National Congress who was convicted on federal drug charges (including the same charges that would later be brought against his brother) on October 18, 2019.Footnote 7 Tony Hernández is now serving a sentence of life in prison plus thirty years.Footnote 8 Juan Carlos Bonilla Valladares, the former chief of the Honduran National Police, was extradited to the United States three weeks after Hernández for alleged offenses that were part of the same scheme.Footnote 9
Extradition between the United States and Honduras is governed by a 1909 Extradition Treaty,Footnote 10 which was supplemented in 1927, as well as by the domestic laws and practices of both countries.Footnote 11 Unlike modern treaties entered into by the United States that typically provide that an “offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty” (dual criminality treaties),Footnote 12 old agreements, like those still in force with Honduras, allow extradition only for those crimes that are specifically listed in the treaty (list treaties). The 1909 Treaty did not include drug-related crimes as extraditable offenses, but the 1927 Treaty added to the list of crimes for which extradition was possible: “Crimes against the laws for the suppression of the traffic in narcotic products.”Footnote 13 As treaties operate directly under Honduran law, this provision established a legal basis for U.S. extradition request. Also unlike most modern treaties entered into by the United States,Footnote 14 but typical for its time, the 1909 Treaty did not require either the United States or Honduras to extradite their own nationals.Footnote 15 That provision has never been amended. Though U.S. law has long permitted the extradition of U.S. nationals to other countries when a treaty so provides, Honduran law has not.Footnote 16 While earlier Honduran law provided discretion to extradite,Footnote 17 the Honduran Constitution of 1982 did not permit the extradition of Honduran nationals until it was amended in 2012 to allow for the extradition of those accused of trafficking in narcotics.Footnote 18 Hernández was president of the National Congress when this amendment was adopted. It has been estimated that thirty-one Hondurans have been extradited to the United States between 2014 and July 2022, the vast majority during Hernández's administration.Footnote 19
Hernández's term as president ended on January 27, and less than three weeks later, on February 14, the United States requested his provisional arrest for the purpose of extradition. In accordance with Honduran law, that request was forwarded by the Foreign Ministry to the Supreme Court of Justice.Footnote 20 Hernández was arrested by Honduran authorities at his home in Tegucigalpa the next day pursuant to the order of Supreme Court Judge Edwin Ortez, who had been appointed by the Court as a first instance extradition judge.Footnote 21 The United States subsequently submitted a formal extradition request in accordance with the 1909 Extradition Treaty. On March 16, Judge Ortez granted that request, and the Supreme Court of Justice, sitting in plenary session as an extradition tribunal of second instance, confirmed that order on March 28.Footnote 22 On April 6, an Ad Hoc Constitutional Chamber of the Supreme Court unanimously rejected as inadmissible Hernández's amparo, which had challenged the Court's extradition decision as a violation of the American Convention on Human Rights and Honduran constitutional law.Footnote 23 The Supreme Court's decision affirming Judge Ortez's order was subsequently signed by its fifteen judges, all of whom were selected by the National Congress in 2016 when Hernández was President of the Republic. On April 13, Judge Ortez sent the certification of Hernández's extradition to the ministers of defense, foreign affairs, and security for it to be carried out.Footnote 24 Eight days later, on April 21, Hernández was surrendered to U.S. Drug Enforcement Administration (DEA) agents at Toncontín International Airport and flown to the United States.Footnote 25
The extradition was praised at the highest levels of the Department of Justice and the DEA. Attorney General Merrick Garland stated: “The Department is committed to disrupting the entire ecosystem of drug trafficking networks that harm the American people, no matter how far or how high we must go.”Footnote 26 DEA Administrator Anne Milgram remarked: “Today's extradition clearly shows that the DEA will stop at nothing to pursue the most powerful political actors who engage in drug trafficking, violence, and corruption. . . . [Hernández] used drug trafficking proceeds to finance his political ascent and, once elected President, leveraged the Government of Honduras’ law enforcement, military, and financial resources to further his drug trafficking scheme.”Footnote 27 She continued: “This case should send a message—to all political leaders around the world that trade on positions of influence to further transnational organized crime—that the DEA will stop at nothing to investigate these cases and dismantle drug trafficking organizations that threaten the safety and health of the American people.”Footnote 28
The timing of the indictment, arrest warrant, and extradition request was plainly intentional. The superseding indictment was issued not just on the same day that Hernández's term as president ended but also after Xiomara Castro was sworn in that day as his successor. And the extradition request came a little more than two weeks after that. It was reported that Vice President Kamala Harris, after being briefed about Hernández's criminal schemes shortly after taking office in January 2021, said: “Let's go get him now.”Footnote 29 She was told in response that “the U.S. government had a long-standing unwritten policy against indicting sitting heads of state.”Footnote 30 The practice has indeed been consistent. When the United States has pursued criminal cases against a country's president, it has always waited until after that person has left office.Footnote 31 In 2013, former President of Guatemala Alfonso Portillo was extradited nine years after his term ended for offenses that occurred during his presidency.Footnote 32 In 2020, former President of Venezuela Nicolás Maduro Moros was indicted on narcotics and terrorism charges for acts during his presidency, a little more than a year after the United States announced it would no longer recognize him as head of government.Footnote 33 The same practice—to wait until a president's term has concluded to take action against them—does not apply to listings or designations. On July 1, 2021, Hernández was listed on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States-Northern Triangle Enhanced Engagement Act, as amended.Footnote 34 That listing was classified until February 7, 2022.Footnote 35
