The decision is sure to be greeted as a triumph in Mexico, where the government considered Cienfuegos’s arrest a violation of sovereignty. But it raises questions about the trade-off between U.S. investigations into Mexican drug trafficking and attempts to maintain a delicate bilateral relationship.
“In recognition of the strong law enforcement partnership between Mexico and the United States, and in the interests of demonstrating our united front against all forms of criminality, the United States Department of Justice has made the decision to seek dismissal of the U.S. criminal charges against former Secretary Cienfuegos, so that he may be investigated and, if appropriate, charged, under Mexican law,” Attorney General William P. Barr and Alejandro Gertz Manero, his Mexican counterpart, said in a news release.
U.S. prosecutors asked to dismiss the case in such a way that it could be filed again, and they asserted, as they have previously, that the evidence against him is “strong.” They requested the judge not formally grant their request until Cienfuegos could be transported to Mexico by U.S. Marshals.
Cienfuegos was arrested at Los Angeles International Airport on Oct. 15. Prosecutors said he assisted the drug-trafficking cartel H-2 when he was defense minister from 2012 to 2018. Cienfuegos has pleaded not guilty.
The charges are now expected to be dropped by a U.S. federal judge Wednesday morning.
“At the request of the Fiscalía General de la República, the United States Department of Justice, under the Treaty that governs the sharing of evidence, has provided Mexico evidence in this case and commits to continued cooperation, within that framework, to support the investigation by Mexican authorities,” Barr and Gertz Manero said.
The decision appeared to be an attempt to repair a growing breach in relations over Cienfuegos’s arrest. Mexican President Andrés Manuel López Obrador suggested the arrest might have been made “for political or other reasons” and accused the Drug Enforcement Administration of “meddling.”
López Obrador has relied heavily on the military — a revered institution across much of the country — for a wide range of tasks, including fighting drug trafficking, building hospitals and more. In arresting Cienfuegos, the United States upset a relationship that has been battered and patched up several times during the course of the Trump administration.
Alejandro Hope, a security analyst in Mexico City, said that if the United States hadn’t agreed to drop the charges against Cienfuegos, “the army would have held off on any kind of cooperation with the U.S. for a decade.”
Mexican Foreign Minister Marcelo Ebrard told a news conference Tuesday that he had spoken with Barr twice in recent weeks to express Mexico’s “surprise and unhappiness” that it wasn’t notified in advance of the investigation. Ebrard said the deal to investigate Cienfuegos in Mexico did not imply impunity but “respect for Mexico and its armed forces.” He said cooperation on drugs “will be maintained” but added “that can only exist if there is respect for Mexico’s sovereignty.”
After Cienfuegos’s arrest, Mexico quietly opened its own investigation into the former defense chief and began trying to persuade the United States to send him back. During that time, López Obrador was conspicuous as one of few world leaders to not congratulate Joe Biden on his election victory. Ebrard denied Tuesday that there was any connection with the Cienfuegos agreement.
The Justice Department has shared evidence with Mexican prosecutors. But there’s a possibility that Cienfuegos will remain free, at least for some time, a symbol to some of the Mexican government’s ability to play hardball with the United States — and win. Ebrard said Cienfuegos would arrive “as a Mexican citizen” not facing any criminal charges.
Prosecutors in the U.S. attorney's office for the Eastern District of New York attributed the change of course to Mexican government threats to limit the role of the Drug Enforcement Administration in the country, according to a law enforcement official familiar with the case. A Mexican official confirmed the possibility that the DEA could be barred from the country.
Still, Barr and Gertz Manero seemed to aim for a note of unity and coordination.
“Our two countries remain committed to cooperation on this matter, as well as all our bilateral law enforcement cooperation,” they said. “As the decision today reflects, we are stronger when we work together and respect the sovereignty of our nations and their institutions. This close partnership increases the security of the citizens of both our countries.”
Only a month ago, the message was very different: Even the most senior Mexican officials would be fair game for U.S. investigators, who believed drug cartels had manipulated the highest levels of Mexico’s government, paving the way for the expansion of organized crime.
That appeared to be the escalation of an existing strategy. For decades, the United States relied on extradition to try Mexican drug traffickers in U.S. courtrooms, believing that they would never be held to justice in Mexico. Then last year the Justice Department arrested Genaro García Luna, the former public security secretary, in Miami for allegedly accepting millions in bribes from the Sinaloa cartel. And this year, the department moved against Cienfuegos.
Both indictments were brought by prosecutors in the Eastern District of New York. But U.S. investigators did not inform the Mexican government of the cases until after the arrests, leading to mistrust. Some current and former U.S. officials believed that Cienfuegos’s arrest in particular might not have been worth upsetting the delicate but important relationship between the countries.
Still, the possibility that Cienfuegos would be returned to Mexico was a surprise. The decision to drop charges against him amounts to a significant setback — if only a symbolic one — to the Justice Department’s efforts against drug trafficking in Mexico.
Cienfuegos served as defense minister under then-President Enrique Peña Nieto. U.S. officials generally viewed him as cooperative, although they worked more closely with the navy secretary, a different cabinet-level official.
U.S. officials say that Cienfuegos was swept up in an investigation of the H-2 cartel, an offshoot of the Beltrán Leyva crime organization that operated mainly in the northeastern state of Nayarit. He was accused of using the military to go after the gang’s rivals while protecting its own drug shipments, and helping H-2 to ship thousands of kilos of heroin, cocaine and methamphetamines to the United States.
It’s not clear that Mexico has done much to probe possible ties between Cienfuegos and drug traffickers. On Oct. 21, López Obrador indicated growing concern in Mexico about the Cienfuegos case. “Show us those operations of complicity if they have the proof,” he said. He said Mexico would open its own investigation only if it received credible evidence of wrongdoing. “We can’t allow someone to be judged only for political or other reasons if there is no proof.”
Zapotosky reported from Washington. Shayna Jacobs in New York contributed to this report.