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Chimene Keitner @KeitnerLaw
, 14 tweets, 7 min read Read on Twitter
The panel indicates that a more detailed opinion will follow; meanwhile, it drops hints about the arguments raised, including “historical sources suggest[ing] that foreign sovereigns might have been able to raise an immunity defense in a criminal case.” 2/
Historically, immunity defenses were raised on behalf of foreign officials (from both criminal and civil proceedings) and foreign ships (from in rem proceedings). repository.uchastings.edu/cgi/viewconten… The 3-page opinion doesn’t tell us what “historical sources” the defendant raised here. 3/
The 1976 Foreign Sovereign Immunities Act (FSIA), which establishes criteria for personal and subject-matter jurisdiction over foreign states in civil suits, defines “foreign state” to include corporations that are majority-owned by a foreign state law.cornell.edu/uscode/text/28… 4/
The FSIA provides immunity to foreign states in US courts unless an enumerated exception applies law.cornell.edu/uscode/text/28… It appears the arguments here focused on the commercial activity exception. 5/
DOJ argued (likely in the alternative) that the commercial activity exception applies. The simpler argument is that the FSIA doesn’t cover criminal proceedings. But unlike the UK's and other state immunity acts, the FSIA doesn’t say this explicitly. legislation.gov.uk/ukpga/1978/33 6/
Indictments related to malicious cyber activity have assumed that foreign defendants are not immune, even when they act on behalf of foreign states. That's true of PLA and GRU indictments, as well as this recent indictment of a Chinese-owned company: justice.gov/opa/press-rele… 7/
Russia has asserted immunity from US jurisdiction in the hacking suit brought by the DNC, but that is a civil suit in which the FSIA applies. static.lettersblogatory.com/wp-content/upl… 8/
Finding that the FSIA applies to criminal proceedings against foreign states would preclude future indictments against entities that come within the FSIA’s definition of “foreign state” for activities that do not fall within one of the FSIA’s exceptions. 9/
If courts find that the FSIA applies to criminal proceedings, this will cause heartburn for DOJ, at least w/r/t indictments of state-owned entities (the FSIA’s definition of “foreign state” doesn’t include natural persons). repository.uchastings.edu/cgi/viewconten… 10/
That said, if the FSIA doesn't apply, it will be interesting to learn what the basis was for asserting personal jurisdiction over the company. 11/
It was also interesting to see the panel brush aside the “foreign sovereign compulsion” defense, which foreign defendants often invoke to avoid producing evidence in US courts, with varying degrees of sincerity. 12/
Regardless of whether this turns out to be #Mueller related, issues of extraterritorial jurisdiction, foreign sovereign immunity, and how to compel compliance from foreign states will persist, as will questions about the scope of state and individual immunity under US law. 13/
The FSIA took immunity decisions out of the hands of the Executive, which was happy to be rid of them when it came to civil suits against foreign states. The same can't be presumed when it comes to criminal proceedings, especially ones as sensitive as these appear to be. /END
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