Former Nissan chairman Carlos Ghosn and his wife Carole leave the office of his lawyer in Tokyo on Wednesday, the night before his re-arrest. Photo: Kazuhiro Nogi / AFP

An arrest warrant makes a formidable gag, as Carlos Ghosn, former chairman of Nissan, found out 48 hours after he tweeted his intention to hold a press conference and “tell the truth.”

That event looks unlikely since Ghosn was arrested at his home on Thursday morning in Tokyo, while in the middle of an interview with a Fox News outlet. The Tokyo Special Prosecutor’s Office announced new charges of special breach of trust, related to alleged deals with a business partner in Oman, that caused nearly 500 million yen in damages to Nissan.

It is a heavy blow for the high-profile, Brazilian-born executive, who holds French and Lebanese passports. “It is part of another attempt by some individuals at Nissan to silence me by misleading the prosecutors,” he alleged in a statement released to media.

Ghosn was arrested in Tokyo last November on charges of financial misconduct and aggravated breach of trust for allegedly failing to report around $82 million in salary in financial reports, for allegedly shifting personal financial losses onto Nissan’s books after the Lehman crisis, and allegedly using company funds to acquire personal properties.

In a case that shone a harsh international light on Japanese judicial practices, he was detained for over 100 days and asked to sign confessions in Japanese, before being released on bail on 5 March. The re-arrest of a person granted bail is rare, even in Japan. But the de facto muzzling could minimize any embarrassment Ghosn could inflict by speaking out.

Gangster justice?

Prosecutors in Japan routinely drop 50% of cases, reluctant to take anything that is not a slam-dunk success, or where the accused doesn’t confess. However, they boast a 99% conviction rate when they do indict the accused; losing a case, even with a partially not-guilty verdict, could damage a prosecutor’s career.

Even judges are reluctant to rock the boat with not-guilty verdicts as a former judge indicated in the book, “The Court of No Hope.” The author revealed that judges who frequently rule not-guilty in criminal court cases are often sidelined or assigned to courts in remote areas.

Today’s arrest drew harsh criticism from another outspoken author and ex-judicial professional, Nobuo Gohara.

“The Tokyo prosecutors are worse than the yakuza these days, they’re using gangster tactics,” Gohara, a former prosecutor, told Asia Times by telephone. “They’re even worse than the mafia because they have the power of the state behind them. Honestly, I’m ashamed.”

Gohara said that if prosecutors really had a case a month ago, they should have re-arrested Ghosn then. “I can’t help but think that there is a special purpose to this arrest,” he said. “In fact, it appears to be obstruction to building a legal defense for the coming trial and an attack on Ghosn, as well as his lawyer.” He called it “extremely unfair.”

The raid on Ghosn’s home and reported seizure of his wife’s cellphone and other family property unrelated to the investigation was tantamount to harassment, Gohara said.

He is not the only person disillusioned with the Japan’s criminal justice system, which infamously uses long detention to force confessions, or punish those who insist on their innocence. And Ghosn’s lawyer Junichiro Hironaka – known as “The Razor” for his professional sharpness – has expressed doubt that the former car industry executive would receive a fair trial.

Why Tokyo is gunning for Ghosn

Even some Japanese media call the arrest and treatment of Carlos Ghosn kokusaku sosa – a term that refers to politically motivated prosecutions. Hironaka has not specifically labelled the case as such, but during a press conference on April 3, he did not rule out the possibility of people above the prosecutors pushing the case.

Prosecutors in Japan are not immune to influence. Tokyo Special Prosecutors refused to prosecute politically connected executives of Tokyo Electric Power Company for criminal negligence related to the 2011 triple nuclear meltdown in Fukushima.

In April last year, it was widely reported that Ghosn intended to place Renault in control of Nissan – an alleged plan that almost certainly aggravated Tokyo. Last year, two Nissan executives made a plea bargain with prosecutors to exempt themselves from criminal charges and ensure Ghosn was jailed.

The executives reportedly consulted first with Akihide Kumada, a former special prosecutor and de facto special advisor to the ruling Liberal Democratic Party and Prime Minister Shinzo Abe. Kumada was the advisor to a former senior Finance Ministry official, Nobuhisa Sagawa, who was deeply involved in a state land sale to a right-wing school, that involved cronyism and Prime Minister Shinzo Abe. The scandal proved highly damaging to the Abe government.

Kumada has a solid track record of helping Abe allies avoid prosecution for perjury and there is speculation he may have helped make the case for Ghosn’s prosecution with his juniors in the prosecutor’s office.

Defeat the tweet

According to sources close to the Tokyo Prosecutor’s office, even after being granted bail, prosecutors have been interrogating Ghosn on a voluntary basis about his transactions in Oman. However, Ghosn did not agree with the scenarios that prosecutors put forth, nor would he sign ready-made statements that prosecutors had prepared.

Perhaps sensing that his time was limited, on April 2,  Ghosn wrote on Twitter: “I’m getting ready to tell the truth about what’s happening. Press conference on Thursday, April 11.”

The tweet was posted in Japanese and English on April 4. But under the terms of Ghosn’s bail, he is not allowed to use the Internet, which suggests a third party unleashed the tweet.

By announcing the press conference, Ghosn seemed to be trying to make it more difficult for prosecutors to re-arrest him, rather than just indicting him on new charges, and thus leaving him out on bail.

If so, it misfired spectacularly.

Junichiro Hironaka, Ghosn’s chief defense lawyer, attends a press conference in Tokyo on April 4, 2019 after his client was re-arrested by the Tokyo Public Prosecutor’s Office on a charge of aggravated breach of trust. Photo: AFP / Yomiuri Shimbun

For their part, prosecutors risk blowback internationally – outlets including the Financial Times, Le Figaro and CNN have slammed their procedures – and from Ghosn’s media-savvy lawyer. “The Razor” is one of the few criminal defense lawyers to obtain a not-guilty verdict in Japan, granting him membership in what some Japanese legal pros call “The 1% Club” of advocates who manage to gain acquittals.

There were prior indications that today’s events could be a well-planned ploy to muzzle Ghosn as quickly as possible.

On the afternoon of April 3, the pro-Abe Sankei newspaper, citing sources close to the case, reported that Tokyo prosecutors were hoping to arrest Ghosn a fourth time over the Oman allegations.

The report was dismissed by much of the media, but less than 24 hours later, Ghosn was indeed back in jail and effectively silenced.

Even so, he managed to release a statement to select media.

“My arrest this morning is outrageous and arbitrary,” the statement, which was obtained by Asia Times, read. “It is part of another attempt by some individuals at Nissan to silence me by misleading the prosecutors. Why arrest me except to try to break me? I will not be broken. I am innocent of the groundless charges and accusations against me.”

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