Term Talk (2022-2023): Turkiye Halk Bankasi v. United States, Pugin v. Garland

[Music] welcome to term talk I'm Clara Alman deputy director of the Federal Judicial Center in each episode of term talk we discuss what lower courts need to know about some of the Supreme Court's most impactful decisions this term joining me today is Professor Lori levenson of Lola law school and Professor Evan Lee of University of California law San Francisco Evan Lori thanks for joining me today we're going to talk about two cases the first is T Hulk bassi versus United States a case that concerns the foreign Sovereign immunities Act then we'll turn to puan versus Garland this is a case about the meaning of obstruction of justice in the context of the immigration and nationality acts provision concerning removal let's start with the TOA case Evan can you explain the foreign Sovereign immunities act and what aspects are at issue sure um until the 1950s foreign sovereign immunity in American courts was a matter of common law and then in the 1950s courts began deferring to the state department whenever a foreign State invoked sovereign immunity finally in 1976 Congress enacted the foreign sovereign immunity act or fsia which codify the rules governing when foreign sovereign immunity applies in federal courts so what aspects of the foreign Sovereign immunities act were at issue in this case well in 201 19 the United States indicted Hulk Bank in which turkey owns a majority share alleging that the bank conspired to evade us sanctions against Iran essentially through money laundering Hulk Bank moved to dismiss the indictment arguing that it was immune from Criminal prosecution under fsia and also that the court lacked subject matter jurisdiction under the general Federal Criminal jurisdiction statute 18 USC 3231 The District Court denied the motion to dismiss the second circuit found that jurisdiction did exist under Section 3231 it further assumed for the sake of argument that fsia generally provides immunity to instrumentalities of foreign States from Criminal prosecution but that fsia does not immunize such act uh such entities from commercial activities or with regard to commercial activities as was true in this case the Supreme Court per Justice Kavanaugh found that the district court had proper jurisdiction but held that fsia only covers civil cases not criminal cases and then importantly the court remanded the case to the lower courts to invest tigate whether common law might provide sovereign immunity even though fsia does not so Lori can you take us through the Court's reasoning in this case well the court had to decide whether fsia ever provides sovereign immunity in criminal cases at all and then the court had to decide well what is the scope of this immunity in these criminal cases that's why the case gets remanded down to the lower courts to see if in fact there is any immunity under common law you know the court finds that that the fsia does apply in civil and criminal cases and at least when there's this commercial activities exception but the concurrence which is justices Gorsuch and Alo say you don't have to go beyond that that in fact common law principles should not be looked to here even if we could figure them out that that was something that went back to the difference times of between the 1950s and 1970s and trying to determine what his customary international law at this point is unclear especially after Erie versus Tomkins so I want to turn to what the takeaways from this are for the lower courts and I'll start with you Evan yeah these disputes have been popping up in the context of Suits uh brought for harm suffered by individuals due to the aid given to terrorists by foreign States and I think the remand here is going to be really interesting if the lower courts decide that some sort of common law did survive the enactment of fsia um that potentially opens a pretty big box and the Supreme Court would likely have to Grant cigan somewhere Downstream uh to shed light on what is in that box and what's not in that box I I'm just curious what's going to happen if they do not find the immunity and what that will mean for foreign countries in assessing immunity regarding Americans in cases so this could have a dramatic impact both directions sounds like this will be something important to watch so I want to turn now to pugan versus Garland this is a case about the meaning of obstruction of justice in the context of immigration removal Lori can you tell us more what this case was about cases about the language relates to the obstruction of justice under the immigration and nationality act the issue is whether that language has to involve an essential element of an ongoing investigation or actual proceeding the court decided in a 6 to3 majority that the conviction underlying the deportation does not need to have that essential element and this was actually a case that came to the court through two different cases so the Supreme Court did resolve in favor of the fourth circuit approach which gives broader ground to removability because that ongoing investigation is not required Evan can you take us through the Court's reasoning here yeah in in order to come up with a generic definition of obstruction of justice um the court looked to First the dictionary uh said destruction of Justice in the dictionary does not require the existence of a pending investigation or judicial proceeding the court then looked at the federal criminal code generally and noted that many offenses in Title 18 that are related to obstruction of justice quote unquote don't require existence of a pending investigation or judicial proceeding the court then turned to the model penal code and said that its definition of obstruction of justice also doesn't require the existence of a pending investigation or judicial proceeding and furthermore uh justice Kavanaugh stresses that the category that is involved here isn't just quote unquote obstruction of justice it's related to obstruction of justice which necessarily is a broader category so this case has a descent written by Justice Sodor joined by Justice Gorsuch and uh Justice Kagan and I'm wondering if you could tell us Evan a little bit about what The Descent had to say they point back to the Core Federal obstruction of justice statute which is 18 USC section 1503 and they stress that this statute does require the pency of an investigation or a judicial proceeding the denters say that in its analysis of what constitutes core obstruction of justice the majority is looking to statutes that are far beyond section 153 and its state analogues and then after kind of casting its net far and wide unsurprisingly finds that many of what The Descent refers to as these obstruction adjacent statutes don't require the pendency of an investigation or proceeding so that's the criticism so Evan This concerns obstruction of justice in the context of the immigration and nationality act but based on what you've just described I wonder if this applies outside of the immigration and nationality act uh I would say the answer to that is going to depend on the specific application involved d uh so let's take Section 1503 itself clearly this decision does not alter the definition of obstruction of justice within the meaning of 1503 but if there are if the phrase related to obstruction of justice appears elsewhere in the immigration statute or appears elsewhere in the federal criminal code uh then potentially yeah this case could change the interpretation of that phrase Lori what do you see of some of the takeaways here for the lower courts well in addition to what Evan has just explained one thing that strikes me Evan is that this is a not a categorical approach that the court is using and so I'm wondering if they're moving away from the categorical approach on the convictions in just this area of the removability or whether it could expand to other areas yeah I Lori I would agree uh that um long time observers might say that uh this uh maybe involves a liberalization of the categorical approach and so you know you're left to ask if the court is moving away from the categorical approach in Immigration cases which would be a big change uh it also likely would mean the end of the categorical approach in armed career criminal act cases which would also be a massive change but I want to stress that um standing this case I think does not come close to uh suggesting that the categorical approach is no longer uh the law yeah I agree with that but it's just something to keep notice of because it was in this case sort of an expansion of how to look at the underlying conviction well this will certainly be something to watch Lori Evan thank you both so much for joining us today [Music]

Channel: United States Courts

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Length: 12min 27sec (747 seconds)

Published: Thu Oct 05 2023