Can I Travel If I’m Under Federal Investigation?

Before an indictment, the answer is generally yes. After one, the conditions change substantially.

The distinction between pre-indictment and post-indictment travel is the central organizing principle of any answer to this question, and it is the distinction most often overlooked by people who assume that investigation, charge, and legal restriction arrive together. They do not. Investigation can proceed for years without any formal restriction on the subject’s liberty or movement. The formal restrictions that most people associate with criminal proceedings attach at a later stage.

Travel During Investigation

A person who is the subject or target of a federal investigation but who has not been charged with any offense retains the full complement of their liberty rights, including the right to travel domestically and internationally. No warrant is necessary to leave the country. No permission from any court or law enforcement agency is required. The investigation, however advanced, does not in itself restrict movement.

That legal position is accurate and it requires qualification. International travel by the subject of an active federal investigation creates practical risks that domestic travel does not. A person who travels internationally and who is subsequently indicted may find themselves subject to an arrest warrant that is executable at the port of entry upon return. If the indictment is sealed and the subject is abroad, return to the United States may result in immediate arrest at customs.

The Practical Risk of International Travel

International travel by someone under investigation is a decision that should be made with counsel’s input and with an understanding of several specific factors: whether a grand jury has been convened in connection with the relevant conduct; whether the investigation has reached a stage where indictment is probable in the near term; whether travel to the specific destination involves a country that maintains an extradition treaty with the United States; and whether the subject’s passport has been flagged in the Treasury Enforcement Communications System.

Countries without extradition treaties with the United States include a number of destinations that might appear on an ordinary travel itinerary. Departure to such a country during an active investigation, and particularly in the period when indictment is anticipated, has been treated by federal courts as evidence of consciousness of guilt and as a factor warranting the highest flight risk designation at any subsequent bail proceeding.

Three clients I have represented departed internationally during open investigations on what they characterized as business travel. In two of those cases, counsel was able to arrange voluntary surrender before the departure became a flight risk designation. In one, it could not.

Travel After Indictment

Following indictment and initial appearance before a magistrate or district court judge, conditions of release are imposed by the court. Those conditions routinely include restrictions on travel, which may range from a prohibition on international travel to a requirement that the defendant remain within the judicial district or surrender their passport to pretrial services. The conditions are set by the judge based on the government’s assessment of flight risk and the defendant’s personal history.

A defendant who travels in violation of conditions of release has committed a separate criminal offense and has provided the government with grounds to seek revocation of release and pretrial detention. The consequences are severe and they are cumulative to whatever the underlying matter involves.

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The Passport Question

A passport may be revoked by the State Department in connection with a federal prosecution, but revocation is not a standard consequence of investigation alone. It becomes available as a condition of release following indictment. The subject of an investigation who has not been charged retains their passport and retains the legal right to use it.

Whether to exercise that right during an active investigation is a legal and strategic judgment. The assessment is available through counsel. The assessment should occur before the departure date, not after the boarding pass is printed.