Imminent extradition. Is that what awaits Juan Orlando Hernandez

In January 2012, U.S. and Honduran officials met in South Florida to hash out a new extradition treaty designed to tackle the country’s booming drug cartels.

Among those with a key role was the then president of the Honduran Congress, Juan Orlando Hernandez, who pushed through a constitutional reform to allow extradition of Honduran citizens.

So, it is something of an irony, almost a decade later, that Hernandez now finds himself a target of U.S. prosecutors in the Southern District of New York who have made no secret of their firm belief that he turned Honduras into a ‘narco-state,’ overseeing a system of "state-sponsored drug trafficking.”

After eight years as president, Hernandez is due to step down on January 27 after his ruling National Party suffered a humiliating defeat at the polls late last month. That leaves him vulnerable to possible – some say inevitable – indictment in U.S. federal court, likely to be followed by a request for extradition to stand trial in New York.

That is what many Hondurans would like to see happen. On election night, Nov 28, after it became clear that opposition candidate Xiomara Castro had won, thousands of Hondurans took to the streets, some ome singing along to a song whose chorus ends “ Yuanchi [Hernández] is going to New York.'

How the mighty fall

Many in Honduras are asking if that will really happen? Could the country’s most powerful person for the last 12 years - first as president of Congress and then as head of state – end up in handcuffs and behind bars.

Not so fast, some analysts caution.

“Juan Orlando is a political fox. He probably has planned for several scenarios. I think, at first, he will try and ride out the storm (in Honduras),” said Lucas Perello, a visiting assistant professor at Marymount Manhattan College in New York, who studies Honduras. “He spent the last 12 years very astutely changing the rules of the game. He built an entire apparatus of power to protect his vested interests,” added Perello, noting that he packed the Honduran bureaucracy, including police and military, with loyalists.

“Hernandez is someone who always has a Plan A, B, C, D and E,” said Raul Pineda, a Honduran lawyer and political analyst, who said Hernandez was running out of options in Honduras. “I don't think anyone will stand up for him," he said.

Hernandez has vehemently denied the allegations of drug trafficking. Besides staying put and fighting possible extradition, his alternatives include seeking refuge in a third country with no extradition agreement with the United States, such as Nicaragua or Taiwan, where his children were sent to study.

In November, Hernandez and his wife made a surprise three-day visit to Taiwan where three of their children are living, for study or to work.

‘Unindicted co-conspirator'

Hernandez has been named in several high-profile U.S. drug trafficking cases as an ‘unindicted co-conspirator.’ But trial evidence, in the form of witnesses and statements by prosecutors, has made it clear that at some point his alleged involvement with drug cartels prompted the U.S. Justice Department to make him the target of an investigation.

Witnesses have accused him in one instance of receiving $1 million from notorious Mexican drug trafficker, Joaquin ‘El Chapo’ Guzman to fund his 2013 election campaign. His younger brother, a former National Party legislator, was sentenced to life in prison by a New York judge in March after he was found guilty of drug-trafficking and weapons charges by a jury in 2019.

“Based on what I’ve read about the convictions they’ve obtained and other testimony that they've used, there's enough there for [the prosecutors] to go and make a presentation to a grand jury,” said David Weinstein, former chief prosecutor of the international narcotics unit for the Southern District of Florida.

“They may have already obtained a sealed indictment, and an indictment under seal is not required to be unsealed until the person is in custody,” he added.

Hernandez’s office, which was once open with the foreign media, has stopped responding to requests about his legal predicament in the United States.

The U.S. State Department also declined to comment directly on the fate of Hernandez. “The Honduran people chose Castro in a free and fair election, and these are sovereign decisions,” a State Department spokesperson said.

“Fighting corruption and countering drug trafficking are U.S. foreign policy priorities in Honduras and throughout the region, and we look forward to supporting President-elect Castro’s efforts to combat corruption and improve the rule of law in Honduras,” the spokesperson added.

Skeletons

If Hernandez chose to stay on Honduras and fight a rearguard action, some speculate he might find an ally in the victorious opposition candidate, Xiomara Castro, or rather, her husband, former president Manuel ‘Mel’ Zelaya, a controversial politician who knows a thing to two about exile.

Zelaya was ousted by a military coup in 2009 after angering the economic elite who accused him of attempting to change the constitution, a manoever that Hernández successfully pulled off in 2017.

“Hernandez may have already tried to reach an understanding with the incoming government to avoid the most dramatic consequences,” said Olson. “ Juan Orlando knows where all the skeletons are buried, and a lot of those skeletons involve Mel,” he added, noting that Zelaya has also been accused of taking millions in dollars from drug traffickers.

One possible route that Hernández might use to avoid extradition is through a seat on the Central American Parliament (PARLACEN), which is automatically extended to heads of state upon leaving office. The PARLACEN is a largely powerless body intended to promote regional integration, but which has been heavily criticized as serving as little more than to protect and line the pockets of corrupt politicians. Notably, the country considered the least corrupt in the region, Costa Rica, has withdrawn from the body.

Parliamentary immunity

According to the PARLACEN’s statutes, each parliamentarian is afforded any immunity that a legislator in that person’s home country would enjoy, as well as diplomatic immunity. “It’s like a double lock in terms of immunity,” said the lawyer and political analyst Rafa Jerez.

Former federal prosecutors have told Univision that the United States would not likely recognize the immunity offered by the PARLACEN. But the double immunity provides a potential excuse for the Honduran Supreme Court – which decides whether or not to grant an extradition request – to protect Hernández, who will maintain influence over the court until new judges are elected in early 2023.

If there is an attempt to withdraw his immunity to extradite him the procedure would be complicated, explained Jerez. The Honduran state would have to send a formal petition to the PARLACEN that would likely have to be initiated by the Honduran attorney general’s office – also controlled by a Hernández ally until mid-2023 – and supported by a resolution from the Supreme Court. The PARLACEN would then name a commission from among its members to investigate the accusations and then submitted to the parliament for a vote.

“[Hernandez] is not going to lose all his friends in Honduras but he won’t have enough protection,” said Patricio Navia, a Honduras expert at New York University (NYU) who also teaches at Diego Portales University in Chile.

Navia noted that the Honduran Supreme Court depends on the government for its funding and should not be expected to act in a truly independent fashion.

“There is tremendous popular support for extraditing him. So, I don’t see how Juan Orlando can stay in Honduras. He has to flee,” he said.

All of this will depend upon Hernández first being sworn in as a member of the PARLACEN, which would likely have to take place at its headquarters in Guatemala City. Upon leaving office on January 27, there could be a repeat of the scenes that played out in January 2020 when the former president of Guatemala, Jimmy Morales, rushed to get sworn in before any charges could be filed against him. He was at first blocked by protesters, but on his third attempt made it into the building.

The Nicaraguan option

Two former presidents of El Salvador were stripped of their immunity in the last five years – Mauricio Funes and Salvador Sanchez Ceren. Both sought refuge in Nicaragua, where the country’s president Daniel Ortega granted them citizenship to protect them from extradition. Nicaragua's constitution prohibits extradition of Nicaraguan nationals.

On paper, the conservative Hernandez is Ortega’s ideological opposite and never previously got along. But, a few weeks before November’s election, Hernández and Ortega surprisingly agreed to end a long-held territorial dispute over the Gulf of Fonseca on the Pacific coast, leading some to suspect that the Honduran president made the visit to make arrangements for a future exile, just in case.

“He’s paving the way,” said Olson. “It’s nothing to do with ideology, it’s all about greed and impunity,” he added.

Honduras recently abstained from voting on a resolution in the Organization of American States against Nicaragua over the sham reelection of Ortega for his fourth consecutive term. Honduras has also offered its neighbor a helping hand over covid-19, vaccinating around 100,000 Nicaraguans. Last week Honduras also voted to back the inauguration of a new headquarters of the Central American Bank for Economic Integration (BCIE) in Managua, while other member countries chose to postpone the event so as not to legitimize the sham reelection of Ortega for his fourth consecutive term last month.

For Ortega, offering a refuge to Hernandez is also an attractive way to get back at his old enemy, the United States, after his government has been hit with a barrage of economic sanctions.

“When your only other option is being extradited, then Daniel Ortega and Nicaragua look like heaven,” said Navia.