Supreme Court Looks for Middle Path in Prosecution of Turkish Bank

Supreme Court Looks for Middle Path in Prosecution of Turkish Bank

WASHINGTON — The Supreme Court considered on Tuesday whether the federal government may prosecute a state-owned bank in Turkey on charges that it had helped Iran evade sanctions imposed by the United States. In the process, the justices debated a much larger question: whether criminal prosecutions of foreign nations or the entities they control are ever permissible under the doctrine of sovereign immunity.

The case involved what a 2019 indictment called a multiyear scheme by the bank, known as Halkbank, to launder billions of dollars of Iranian oil and natural gas proceeds. It has strained relations between the United States and Turkey, and it prompted top Justice Department officials in the Trump administration to try to disrupt the prosecution.

Lisa S. Blatt, a lawyer for the bank, said that it was one thing to allow civil suits seeking money from companies owned by foreign governments, which she said was permissible under the Foreign Sovereign Immunities Act of 1976 in some circumstances.

But criminal charges, she said, were another matter entirely. “There just never has been a criminal prosecution of a sovereign or its instrumentality anywhere,” she said, adding, “The world has been around for, like, 7,000 years, and no country has ever tried another country.”

In the bank’s Supreme Court brief, Ms. Blatt wrote that conflicts between nations are settled by diplomacy or war and not in criminal trials.

“President Madison did not indict Great Britain for arson for torching the White House in 1814,” she wrote. “President Roosevelt responded to Pearl Harbor by unleashing the full might of the American military against Japan, not a phalanx of prosecutors.”

Eric J. Feigin, a lawyer for the federal government, said it was the bank’s position that was “extraordinary and unprecedented.”

Under it, he said, “any foreign government-owned corporation could become a clearinghouse for any federal crime, including interfering in our elections, stealing our nuclear secrets, or something like here, evading our sanctions and funneling billions of dollars to an embargoed nation, using our banks, and lying to our regulators.” (The bank has denied wrongdoing, and Ms. Blatt said the accusations against it were false.)

Several of the justices seemed to be looking for a middle path between the parties’ positions, in the case, Turkiye Halk Bankasi A.S. v. United States, No. 21-1450. But Justice Brett M. Kavanaugh seemed inclined to let the executive branch make most decisions about when prosecutions like that of the bank may proceed.

“I think it’s pretty bizarre for this court to tell the president of the United States as a matter of his national security exercise” that he may not pursue charges, Justice Kavanaugh said, adding, “That’s why we have a president who’s elected to protect the national security of the United States and consider those issues.”

Ms. Blatt said that a ruling against the bank would encourage foreign prosecutors to bring criminal charges against corporations controlled by the United States like the Export-Import Bank or Voice of America.

“One person’s freedom fighter is another person’s terrorist,” she said.

She added that there was no principled way to allow federal prosecutions but not state ones, calling that position “cataclysmic.”

Justice Neil M. Gorsuch seemed troubled by the prospect.

“States would be free to try to bring lawsuits against Mexico for this or that, or perhaps China because of Covid, or who knows what a creative state prosecutor might come up with,” he said.

Along related lines, Justice Sonia Sotomayor asked whether individual federal prosecutors could decide to indict foreign governmental entities. The question, she said, was not hypothetical.

“What do I do with the hearsay news reports that came out that the prior administration was trying to apply pressure to drop this lawsuit?” she asked, referring to detailed reporting on attempts by Justice Department officials in the Trump administration to undermine the prosecution of the bank.

Mr. Feigin gave a general response. “Those are internal government deliberations,” he said. “Some of them have been brought to light, but I think what they do show is there was a process.”

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