The US can still withdraw the alleged visa fraud case against Indian diplomat Devyani Khobragade, although it could face some difficulties before the judiciary, according to a top American lawyer.

“I think, in this particular case, when the issue is not necessarily mistreatment in a physical sense, but low wages, I think it moves a little bit more towards a serious crime, but not necessarily a grave crime,” G Douglas Jones, the ex-Attorney for the Northern District of Alabama, and currently the Treasurer of the National Association of Former US Attorneys, told PTI.

India has strongly objected to the arrest of 39-year-old Khobragade arguing that the allegations of visa fraud against her is not grave enough to arrest her, and thus the US has violated the Vienna Convention for Consular Relations of 1963.

The US, however, claims this to be a grave crime.

Jones conceded that the interpretation of the crime under the Vienna Convention is a grey area and it is for the governments concerned to define it.

“Laws like that are often subject to the interpretation of the person who wants to use the law either for or against the particular point. I can certainly see the Indian Government’s point. From the US point of view it is a serious enough crime that would merit some type of arrest. But in this country also remember that the nature of the crime is only an aspect of a consideration,” he said, adding the flight risk of Khobragade could have been one of the reasons for her arrest.

“It is a very very sensitive and a very difficult case to manage at this point,” Jones said.

Jones observed that the very fact this case was investigated by the State Department and not the FBI or ICE — the two major investigative wings of the US Government — is reflective of the fact that there were serious considerations given before taking a decision to arrest Khobragade.

When asked about the Indian demand that the US should withdraw the case against Khobragade, which has been ruled out by the State Department, Jones said this is feasible, though might be difficult at this stage of the court case.

“It (apology) is certainly feasible. It is certainly feasible. It is more difficult once a complaint is filed and prosecution has been initiated. It is more difficult for the justice department to back off after that and even for the State Department. But it is possible,” Jones said.

“This case can go any number of ways. It can go through the court system all the way through a trial. I do not think that that will happen. I think that pursuing this case to the trial is going to be the last thing that the US and the Indian government would really want to happen that would escalate the tensions,” he said.

“Could it be resolved with some kind of diplomatic or other type of resolution in the court system wherein there is an acknowledgement that either a crime or some wrong was done that’s going to be a decision that she would have to make in consultation with her lawyer,” Jones said.

After a day’s break due to Christmas holiday, officials of both India and the US, accompanied by a battery of legal minds, are expected to resume their talks today.

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