You may have seen some intrigue in the news recently. The Special Counsel’s office was arguing an appeal in Washington. The case was under seal, and the subject matter was so super-secret that the court didn’t just close the courtroom, it closed an entire floor of the courthouse so that no one would know who was arguing the case, which might allow inferences about the identity of the parties. The speculation was that the case involved a grand jury subpoena—grand jury proceedings are secret by design. Who could be resisting a grand jury subpoena connected to the Special Counsel’s investigation? The President? Someone else particularly juicy?
We still don’t know the answer to that question, nor do we know much more than we did before about the role of this subpoena in the overall investigation. Lawfare has a post that situates the case in the broader context. But though we lack those details, the court’s decision is pretty interesting nonetheless.
We know from the decision that the target of the subpoena was a state-owned enterprise and thus an instrumentality of a foreign state for purposes of the FSIA. We know that it is in a country with a relevant blocking statute, bank secrecy statute, or the like, as the target claimed that compliance with the subpoena would cause it to violate its local law. Perhaps we could hazard a guess that the country is not one with which the United States has an MLAT, since if there were an MLAT the United States could seek the information via the treaty, but given the politics involved in the case, I don’t think that’s a safe guess to make. The US/Russia MLAT, for example, allows a party to refuse legal assistance if “the execution of the request would prejudice the security or other essential interests of the Requested Party.” We could also guess, I think, that the country is not one of the major Western European countries or another major developed economy, because it seems unlikely to me that a “regulator” from a country with a well-developed and familiar legal system would submit an “atextual interpretation” of the country’s blocking statute. In such countries, it seems to me the US government would be able to obtain appropriate affidavits undercutting obviously wrong interpretations of the foreign country’s own law. We can also note that the foreign entity carried out some commercial act outside the United States that had a direct effect in the United States, but we can’t really guess what that might mean.
So much for speculation. The decision has a few interesting points. First, the court avoided deciding whether the FSIA provides protection for foreign states in criminal proceedings. It assumed that that was so but found that . Second, the court, applying Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., 138 S. Ct. 1865 (2018), refused to defer to the foreign state’s interpretation of its own law. Third, the decision the court was affirming imposed a fixed monetary penalty on the foreign entity to compel its compliance. I am not sure this will have the desired effect, since immunity from jurisdiction is one thing and immunity from execution is another.
The court has promised a more detailed opinion in due course, and I’ll comment on it when it arrives.