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Why the DOJ’s ‘investigative sloth’ could actually be a smart Jan. 6 play

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Why the DOJ’s ‘investigative sloth’ could actually be a smart Jan. 6 play

After interviewing more that 1,000 witnesses, the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol announced it will hold public hearings starting this week on its findings beginning next Thursday, June 9. Meanwhile, the Department of Justice, the only federal agency empowered to prosecute those who committed crimes in connection with the insurrection, recently requested the transcripts of the committee’s witness interviews.

This request by the DOJ seems to turn the usual investigative model on its head, as federal prosecutors almost always want first crack at important witnesses who may be needed in future criminal prosecutions. And last week, the DOJ indicted former White House trade adviser Peter Navarro for contempt of Congress. On the other hand, it declined to indict former Trump chief of staff Mark Meadows and his former White House deputy chief of staff for communications Dan Scavino. So, is there a method to this investigative madness?

As a former career federal prosecutor, I occasionally encountered situations where multiple government agencies and/or different jurisdictions were interested in the same witnesses for different reasons.

As a former career federal prosecutor, I occasionally encountered situations where multiple government agencies and/or different jurisdictions were interested in the same witnesses for different reasons. For example, when I was investigating crimes in the District of Columbia, the D.C. city government often had an interest in those same crimes. Accordingly, the D.C. City Council might seek to secure the testimony of some of the same witnesses I needed to prove the crimes I was prosecuting.

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So why is this a problem? The reality is that different agencies, organizations and sovereignties may have different goals and motives when dealing with a witness. It is a prosecutor’s responsibility to develop witness testimony as completely, truthfully and accurately as possible to maximize its value in a criminal investigation. Additionally, prosecutors have a keen interest in preserving that testimony — generally by having the witness testify under oath before the grand jury — as soon as possible after the commission of the crime so the witness’s recollection is fresh, and hence more likely to be accurate.

The House Jan. 6 committee is kicking off the first of its public hearings on Thursday, June 9 at 8 p.m. ET. Get expert analysis in real-time on our live blog at msnbc.com/jan6hearings.

However, if another entity is interested in the testimony of a witness — a city or state government, or Congress, for example — that entity might have a different goal. A city government might be dealing with a lawsuit brought by the victim of crime, in which case the city attorneys might look to craft the witness’s testimony in a way that is designed to help prove that city employees — police, EMS workers, 911 operators — acted properly.

Suffice it to say, prosecutors invariably want to go first. This background is offered to highlight just how unusual it is for Congress to seemingly take the investigative lead with witnesses who could be critically important to any eventual criminal insurrection-related prosecutions.

Many have criticized the DOJ for what they perceive as investigative sloth. Why didn’t federal prosecutors first present these hundreds of witnesses to the grand jury and then make them available to the Jan. 6 committee after their testimony was preserved under oath — or “locked-in,” as federal prosecutors put it? Although there are some significant detriments to this unusual investigative approach, there are also some real benefits.

Timing is a big one. It would take a long time to interview, prepare for a grand jury appearance and then present to the grand jury 1,000 witnesses. Indeed, I question whether the DOJ could have moved through those kind of witness numbers as quickly as the Jan. 6 committee has.

Even more importantly than the timing issue is the fact that grand jury testimony is secret. Prosecutors cannot reveal what any witness said before the grand jury, unless and until the witness testifies at a public trial. So, whereas we are about to see, beginning on June 9, the fruits of the committee’s labors, the public likely would not have learned anything about what the witness had told a grand jury for a long time, if at all. Thus the current scenario has significant benefits given the importance of transparency.

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Another benefit: Testimony from witnesses who may have some criminal involvement in the insurrection is far more likely to have been captured by the Jan. 6 committee than if those witnesses had first been subpoenaed to a grand jury.

Even more importantly than the timing issue is the fact that grand jury testimony is secret.

Witnesses like Rudy Giuliani and Donald Trump Jr., both of whom spoke at then-President Donald Trump’s pre-riot pep rally at the Ellipse on Jan. 6, have possible criminal exposure for inciting the insurrection as a result of their inflammatory speech. Additionally, Don Jr. sent potentially incriminating texts to then-chief of staff Mark Meadows, urging that he take steps to overturn the election results. Giuliani engaged in what sure seems like frivolous litigation attacking the election results, which may pose additional criminal problems for him.

As a result of their conduct, Don Jr. and Giuliani would have special rules apply to them if they were subpoenaed to a grand jury. Specifically, they would be viewed as either “targets” or “subjects.” These designations have legal implications. Before federal prosecutors can present targets or subjects to the grand jury, they must advise those witnesses of their right against self-incrimination and their right not to testify. Having been through this exercise many times, I know this often has the effect of shutting down the witness. If the witness invokes their right against self-incrimination and declines to testify, that witness’s information may be forever lost to the investigation (unless prosecutors decide to immunize the witness, extinguishing their right against self-incrimination and compelling their testimony).

However, there is no requirement that the Jan. 6 committee administer such warnings to witnesses. To be sure, witnesses can still invoke their Fifth Amendment right in a congressional hearing, but I think it’s a fair observation that they are less likely to than in a grand jury proceeding. One other significant difference between the two settings: If a witness invokes his or her right against self-incrimination in a grand jury room, that matter is also secret by law. By contrast, when witnesses have pleaded the Fifth before the Jan. 6 committee, the public promptly learned about it, as was the case with Roger Stone.

Another benefit: The Jan. 6 committee has developed incriminating evidence that would not have been developed had the DOJ gone first. The committee said four witnesses — Meadows, Steve Bannon, Peter Navarro, and Dan Scavino — were guilty of contempt of Congress by refusing to comply with lawfully issued congressional subpoenas. These four men were referred to the DOJ for prosecution, although it seems like Meadows and Scavino have received a pass on the misdemeanor contempt charge.

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However, even though the DOJ declined to indict Meadows and Scavino — likely the a result of an Office of Legal Counsel memo advising against contempt indictments for executive branch officials closest to the president — they’re not out of the woods yet. The fact that they defied congressional subpoenas rather than testify about Trump’s alleged misconduct can be used as incriminating evidence in the context of a conspiracy to defraud the United States, in violation of 18 USC section 371. This still gives the DOJ leverage that prosecutors can use in their efforts to convince Meadows and Scavino to cooperate fully and truthfully with the ongoing investigation.

This still gives the DOJ leverage that prosecutors can use in their efforts to convince the other two men to cooperate fully and truthfully with their ongoing investigation.

Recall the oft-repeated Watergate moral: if the crime doesn’t get you, the cover-up will.

Another important, if somewhat complicated, benefit is that every witness who refuses to cooperate with the Jan. 6 committee, either by refusing to participate in a voluntary interview or violating a congressional subpoena, may have additional criminal exposure.

Recall the oft-repeated Watergate moral: If the crime doesn’t get you, the cover-up will. If a witness has information about the crimes of others in connection with the insurrection and Congress seeks that information, the witness plainly is involved in a cover-up if the witness refuses to provide said information.

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Let’s use Meadows as an example. As Trump’s chief of staff at the time, Meadows undeniably has important and possibly incriminating information about Trump’s conduct on and around Jan. 6. But rather than provide that information to the Jan. 6 committee, he sought to conceal it. He decided he would rather be held in contempt of Congress and referred for prosecution than testify about Trump’s conduct.

And Meadows’ problems don’t stop just because DOJ has declined to prosecute after the contempt referral. By refusing to share his information, which may include Trump crimes, he may have potential exposure for crimes like accessory after the fact — knowing that a crime against the United States has been committed and assisting the perpetrator in avoiding responsibility for that crime — and misprision of a felony — knowing someone has committed a felony “cognizable by a court of the United States” and concealing that crime from authorities. And lest we forget, a federal judge, David Carter, has already declared it likely that Trump, together with John Eastman, committed the felony offenses of obstructing official proceedings and conspiracy to defraud the United States. This puts the crime of misprision squarely in play for anyone who continues to cover for Trump by refusing to testify to the Jan. 6 committee.

One more little-known benefit: The investigation being run by the Jan. 6 committee is not being conducted by your typical congressional staff. The chief investigative counsel is a former federal prosecutor named Tim Heaphy. Heaphy is an extremely accomplished RICO prosecutor who, in the early 2000s, headed up the Washington RICO prosecution dubbed “Murder Inc.” I worked with Heaphy for many years at the D.C. U.S. attorney’s office and am familiar with his work (and tried multiple RICO cases that were part of the “Murder Inc” conspiracy).

The Jan. 6 investigative team is populated with many former federal prosecutors with vast experience and expertise in gang/RICO cases, public corruption cases and other areas of federal practice. As I’ve watched the investigation unfold in the public reporting, I’ve seen the blueprint of an adept and savvy criminal investigation. If the DOJ did decide to take an investigative backseat, it’s comforting that the investigative car is being driven by experts.

To be clear, there are certainly some detriments to the Jan. 6 committee going first. Any eventual indictments and prosecutions of the command structure of the insurrection (as opposed to the foot soldiers who attacked the Capitol) will take longer as a result. Unfortunately right now, time clearly is of the essence.

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Another potential challenge is that DOJ prosecutors will try all future cases with the sworn testimony of the witnesses as developed — locked-in — by others. However, this challenge can be mitigated by the DOJ prosecutors following up with each witness and developing additional testimony.

One final observation: We really don’t know if or to what extent the DOJ is bringing up the investigative rear. Grand jury proceedings are secret. And Attorney General Merrick Garland’s DOJ has kept leaks to a minimum. I suspect much is occurring before the grand jury that may overlap with the work of the Jan. 6 committee. What we do know is that the nature and scope of the attack on our democracy — an attack from within — is unprecedented in American history. Such an unprecedented series of crimes may well call for an unprecedented investigative approach by the DOJ. For the sake of our republic, let’s hope it proves to be the right approach.

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‘Super-Earths’ Could Host Alien Life for 84 Billion Years, Study Finds

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‘Super-Earths’ Could Host Alien Life for 84 Billion Years, Study Finds

Life on a rogue Super-Earth would be difficult, but organisms have been shown to thrive even in very extreme conditions on regular Earth.

Concept art of Super-Earth. Image: 

Evgeniy Ivanov via Getty Images

210329_MOTHERBOARD_ABSTRACT_LOGO

ABSTRACT breaks down mind-bending scientific research, future tech, new discoveries, and major breakthroughs.

A special class of planets could potentially host life for as long as tens of billions of years, according to a new study.  

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Super-Earths, which are rocky planets that are more massive than Earth but smaller than ice giants such as Neptune, are abundant in star systems across the Milky Way; indeed, our own solar system may be somewhat of an outlier in lacking this type of world. 

Now, scientists led by Marit Mol Lous, a PhD student studying exoplanets at the University of Zürich, have presented new evidence that so-called “cold Super-Earths” that orbit their stars at more than twice the distance between Earth and the Sun, “can maintain temperate surface conditions” for up to give to eight billion years, a timespan that “suggests that the concept of planetary habitability should be revisited and made more inclusive,” according to a study published on Monday in Nature Astronomy.

In addition, Mol Lous and her colleagues found that some Super-Earths that are kicked out of their home star systems by gravitational perturbations, or other mechanisms, could potentially maintain liquid water habitats for as much as 84 billion years, because these rogue worlds would not be affected by the death of any host star.

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“Here we argue that it should be considered that habitable planets could be very different from Earth, and that we should remain open-minded when investigating such potentially habitable planets,” Mol Lous said in an email. “Of course, it is also important to remain cautious and not jump into conclusions when considering such ‘exotic’ habitats as we know very little, and a lot can be left to speculation.”

The new study is built from theoretical models of these tantalizing worlds, rather than real observations, because it is challenging to spot these cold Super-Earths with current telescopes. Most exoplanets are detected when they pass in front of their star relative to our perspective on Earth, causing a slight dip in starlight. As a result, all known Super-Earths have relatively short orbits that produce frequent brightness dips, making them simpler for telescopes to pinpoint.

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However, scientists have suspected for years that Super-Earths in more distant orbits could be compelling targets in the search for extraterrestrial life. Models suggest that these planets could retain their primordial atmospheres, which are dominated by hydrogen and helium gas, for billions of years. These atmospheres are distinct from those surrounding some rocky planets in our own solar system, including Earth, which evolved atmospheres with more complicated compounds, such as oxygen, carbon dioxide, and nitrogen gasses.

“The hypothesis that there could be liquid water on a planet that has a primordial atmosphere has been around for over 20 years and since then more studies have worked on this idea,” Mol Lous said. “We wanted to further investigate the evolutionary aspect, in other words, we calculated how long liquid water could be present and what would be necessary for a planet to have the longest possible duration of liquid water.”

Liquid water is the magic ingredient for life as we know it on Earth, which is why scientists prioritize it in search for aliens elsewhere in the universe. To delve into the “potential exotic habitability” of cold Super-Earths with primordial atmospheres, in the words of the study, Mol Lous and her colleagues ran over 1,000 simulations of planets with different masses, atmospheres, and orbital distances.

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The team discovered that planets between one and ten times the mass of Earth, with atmospheres that are 100 to 1,000 times thicker than Earth’s skies, might occupy a hospitable sweet spot. Worlds that orbit too close to their stars are expected to lose their primordial atmospheres under the harsh stellar glare, but planets that are located at distances beyond the orbit of Mars could hang onto this hydrogen-helium envelope. At this potentially safe distance, these atmospheres could act as greenhouse gasses by absorbing infrared radiation, providing a source of heat that might nurture life in liquid water oceans. 

This class of planets could provide habitable conditions for five to eight billion years, but would eventually become inhospitable once their stars began expanding during their dying stages, reports the study. In a mind-boggling twist, the researchers found that rogue planets that are ten times as massive as Earth, with atmospheres that are about one percent the mass of Earth, could be habitable for an astonishing 84 billion years, according to the models. The study suggests that these unbound worlds would probably be too hot for life at this point in the universe’s 13.8-billion-year lifespan, but could become hospitable over the next several billion years.

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Any speculative aliens on these worlds would have to grapple with very different conditions compared to Earth, including enormous surface pressures and a lack of direct sunlight as a result of thick atmospheres. However, the team notes that extreme lifeforms on Earth can deal with high pressures in deep ocean trenches, while some organisms rely on chemical energy sources instead of drawing fuel from the Sun.

The implications of the study are exciting, but Mol Lous and her colleagues cautioned that it will take more research, and hopefully direct observations, to back up these initial findings. 

“There are three important things to address in the future,” Mol Lous said. “The first is if our results hold when we make our model more realistic. We did a few studies on how robust our results are for changing parameters, but we still make simplifications and that should be improved in future work. For example, we don’t really let the water interact with the atmosphere in our model and that could actually be important.” 

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“The second is to study how likely it is that planets can form with the ‘right’ conditions for liquid water,” she continued. “The third is to think about observations: what can we measure about such planets to determine if they have liquid water or not?’

To that end, the team emphasized that these special exoplanets might be detectable to the next-generation observatories, such as the recently launched James Webb Space Telescope or NASA’s forthcoming Nancy Grace Roman Space Telescope. 

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“There are no accurate predictions on the occurrence of super-Earth-sized planets with these initial conditions, but it is likely enough that these alternatively habitable planets constitute a fraction of the habitable worlds in the galaxy,” the researchers said in the study.

We “expect that our understanding of this exoplanetary population and its potential habitability will substantially improve in the near future,” they concluded.

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The #1 Period Tracker on the App Store Will Hand Over Data Without a Warrant

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The #1 Period Tracker on the App Store Will Hand Over Data Without a Warrant

​Stardust app screens via Apple Store

Stardust app screens via Apple Store

Stardust, an astrology-focused menstrual tracking app that launched on the App Store last year, is one of Apple’s top three most-downloaded free apps right now. From sometime around Sunday evening until Monday mid-morning, it was in the number one spot. It’s also one of very few apps that has put in writing that it will voluntarily—without even being legally required to—comply with law enforcement if it’s asked to share user data. 

After the fall of Roe on Friday, ending the Constitutional right to an abortion and making abortion illegal in more than a dozen states, many people used Twitter to urge others to delete their period tracking apps for privacy and security reasons. A widely-shared concern is that law enforcement can use personal data created in apps against people who’ve sought or gotten abortions illegally. 

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Despite this, more people are downloading Stardust—which combines astrology with menstrual cycle tracking— right now than some of the most-downloaded apps in history. As of Monday morning, on the iOS App Store, Stardust was ranking above hugely popular apps including TikTok, YouTube, and Instagram. It was ranking above BeReal and NGL, two apps that have recently gone viral with teens. 

Stardust seems to have done a decent job of jumping on this moment when everyone is screaming into the Twitter void to “delete you period tracking app!” by marketing itself as the choice for safety-conscious people to track their cycles. The app has less than 300 followers on Twitter, but has made viral TikToks talking about privacy and landed coverage in Mashable. Its Twitter bio is “Privacy first period tracking app.”

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Despite all of its privacy-first marketing, Stardust states in its privacy policy that if the cops ask for user data, it’ll comply, whether legally required to or not, and claims that the data is “anonymized” and “encrypted.” The privacy policy states:

“We may disclose your anonymized, encrypted information to third parties in order to protect the legal rights, safety, and security of the Company and the users of our Services; enforce our Terms of Service; prevent fraud; and comply with or respond to law enforcement or a legal process or a request for cooperation by a government or other entity, whether or not legally required.”

“Whether or not legally required” is an unusual phrase to include in a privacy policy. Most apps simply state that they will comply to the extent legally required. There’s no reason for companies to comply with the cops if they don’t have to. But Stardust says it will. 

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Stardust advertised that what differentiates it from other apps is an “encrypted wall” that they claim keeps data safe. “What we did was implement an encrypted wall between our users personally identifiable information (email/phone/apple id/ etc) and what they actually do on the Stardust app,” the company tweeted in a thread on Sunday about its data practices. 

This feature isn’t implemented yet: it will launch on Wednesday, according to Stardust, along with its Android app launch. It is not entirely clear what Stardust means by an “encrypted wall,” but Stardust explained that users create an encrypted identifier on their phones that the company doesn’t store, and that links users to their activity on the app. 

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Still, Stardust claims that if it receives a subpoena asking for data on a particular user, it will not be able to hand anything over. “If the government issues a subpoena to find out about your menstrual tracking data, we will not be able to produce anything for them,” Stardust claims. Whether that’s true depends on how and what it stores. Stardust did not immediately respond to a request for comment. 

Its privacy policy states that it collects and may share “general age demographic information and aggregate statistics about certain activities or symptoms from data collected to help identify patterns across users.” In a section about sharing to third parties, it states it will not share anything except in a laundry list of cases, including subpoenas: 

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“In response to subpoenas, court orders or legal processes, to the extent enforceable, permitted and as restricted by law (including to meet national security or law enforcement requirements); (ii) when disclosure is required to maintain the security and integrity of the App, or to protect any user’s security or the security of other persons, consistent with applicable laws; (iii) when disclosure is directed or consented to by the user who has input the Personal Data; (iv) in the event that we go through a business transition, such as a merger, divestiture, acquisition, liquidation or sale of all or a portion of its assets, your information will, in most instances, be part of the assets transferred. Information that is encrypted will remain encrypted and cannot be shared by us in decrypted form.”

Stardust tweeted that it offers an “an app experience on Stardust that lets our people share their tracking with their friends” and protect users from “bad actors” at the same time. The founders call this a “unique problem to solve.” These are diametrically opposed goals, unless security practices are airtight: either you can create an “app experience” that involves storing data with sharing features, or you can let people use the app without making accounts, and make your app less data-rich and valuable in the process.

The company tweeted that it’s still “working on an option” for anonymous use of the app, without creating an account. 

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Russia Defaults on Foreign Debt for First Time Since 1918

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Russia Defaults on Foreign Debt for First Time Since 1918

Russia defaulted on its foreign-currency sovereign debt for the first time in a century, the culmination of ever-tougher Western sanctions that shut down payment routes to overseas creditors.

For months, the country found paths around the penalties imposed after the Kremlin’s invasion of Ukraine. But at the end of the day on Sunday, the grace period on about $100 million of snared interest payments due May 27 expired, a deadline considered an event of default if missed.

It’s a grim marker in the country’s rapid transformation into an economic, financial and political outcast. The nation’s eurobonds have traded at distressed levels since the start of March, the central bank’s foreign reserves remain frozen, and the biggest banks are severed from the global financial system.

But given the damage already done to the economy and markets, the default is also mostly symbolic for now, and matters little to Russians dealing with double-digit inflation and the worst economic contraction in years.

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Read more: How Sanctions on Russia Will Hurt—and Help—the World’s Economies

Russia has pushed back against the default designation, saying it has the funds to cover any bills and has been forced into non-payment. As it tried to twist its way out, it announced last week that it would switch to servicing its $40 billion of outstanding sovereign debt in rubles, criticizing a “force-majeure” situation it said was artificially manufactured by the West.

“It’s a very, very rare thing, where a government that otherwise has the means is forced by an external government into default,” said Hassan Malik, senior sovereign analyst at Loomis Sayles & Company LP. “It’s going to be one of the big watershed defaults in history.”

A formal declaration would usually come from ratings firms, but European sanctions led to them withdrawing ratings on Russian entities. According to the documents for the notes whose grace period expired Sunday, holders can call one themselves if owners of 25% of the outstanding bonds agree that an “Event of Default” has occurred.

With the final deadline passed, focus shifts to what investors do next.

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They don’t need to act immediately, and may choose to monitor the progress of the war in the hope that sanctions are eventually softened. Time may be on their side: the claims only become void three years on from the payment date, according to the bond documents.

“Most bondholders will keep the wait-and-see approach,” Takahide Kiuchi, an economist at Nomura Research Institute in Tokyo.

During Russia’s financial crisis and ruble collapse of 1998, President Boris Yeltsin’s government defaulted on $40 billion of its local debt, while declaring a moratorium on foreign debt.

The last time Russia fell into default vis-a-vis its foreign creditors was more than a century ago, when the Bolsheviks under Vladimir Lenin repudiated the nation’s staggering Czarist-era debt load in 1918.

By some measures it approached a trillion dollars in today’s money, according to Loomis Sayles’ Malik, who is also author of ‘Bankers and Bolsheviks: International Finance and the Russian Revolution.’

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By comparison, foreigners held the equivalent of almost $20 billion of Russia’s eurobonds as of the start of April.

Russia Debt Held Abroad Below 50%, First Time Since 2018: Chart

“Is it a justifiable excuse to say: ‘Oh well, the sanctions prevented me from making the payments, so it’s not my fault’?” Malik said.

“The broader issue is that the sanctions were themselves a response to an action on the part of the sovereign entity,” he said, referring to the invasion of Ukraine. “And I think history will judge this in the latter light.”

Finance Minister Anton Siluanov dismissed the situation on Thursday as a “farce.”

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With billions of dollars a week still pouring into state coffers from energy exports, despite the grinding conflict in east Ukraine, he reiterated that the country has the means, and the will, to pay.

“Anyone can declare whatever they like,” Siluanov said. “But anyone who understands what’s going on knows that this is in no way a default.”

His comments were prompted by the grace period that ended on Sunday. The 30-day window was triggered when investors failed to receive coupon payments due on dollar- and euro-denominated bonds on May 27.

The cash got trapped after the US Treasury let a sanctions loophole expire, removing an exemption that had allowed US bondholders to receive payments from the Russian sovereign. A week later, Russia’s paying agent, the National Settlement Depository, was also sanctioned by the European Union.

In response, Vladimir Putin introduced new regulations that say Russia’s obligations on foreign-currency bonds are fulfilled once the appropriate amount in rubles has been transferred to the local paying agent.

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The Finance Ministry made its latest interest payments, equivalent to about $400 million, under those rules on Thursday and Friday. However, none of the underlying bonds have terms that allow for settlement in the local currency.

So far, it’s unclear if investors will use the new tool and whether existing sanctions would even allow them to repatriate the money.

According to Siluanov, it makes little sense for creditors to seek a declaration of default through the courts because Russia hasn’t waived its sovereign immunity, and no foreign court would have jurisdiction.

“If we ultimately get to the point where diplomatic assets are claimed, then this is tantamount to severing diplomatic ties and entering into direct conflict,” he said. “And this would put us in a different world with completely different rules. We would have to react differently in this case — and not through legal channels.”

Contact us at letters@time.com.

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