Halkbank and the “Unitary” Executive

Last week, the Second Circuit issued its decision on common law immunity in United States v. Turkiye Halk Bankasi A.S., on remand from the Supreme Court. Ingrid thoroughly summarized the Second Circuit’s ruling earlier this week. This post follows up to flag one further aspect of the decision.

As readers know, a central question on remand was what deference, if any, to give the Executive’s immunity determination. This post focuses on which part of the Executive speaks to immunity. The Second Circuit’s analysis of this issue appeared in a footnote, reading in full:

Although Halkbank briefly suggests that the Executive’s position in this case is less authoritative because it was expressed by federal prosecutors rather than the State Department, we have held in this context that the “test should naturally be supplied by the Executive’s representations, not the technical nature of its appearance.”  Sullivan v. State of Sao Paulo, 122 F.2d 355, 357 (2d Cir. 1941).

Implicit in this statement is that typically the State Department offers the Executive’s views on immunity, and that is what happened in immunity precedents on which the court relied. But here,  the Second Circuit concluded that any Executive determination—including one embedded in the decision by federal prosecutors to prosecute—did the trick. And the court’s only support came from an 80 year old precedent, from before the Tate Letter, in which the State Department actually participated.

If courts are going to be in the business of evaluating Executive immunity determinations, then I think there are reasons that the source of the decision might matter in some cases. Specifically, decisions by the Justice Department to prosecute are institutionally and legally different from determinations made by the State Department in the context of proposed or ongoing litigation. Officials in the State and Justice Departments are subject to different legal and small-p political constraints. Prosecutors are trying to maximize different things than diplomats. Charging decisions are subject to the U.S. Attorney’s Manual, which would not apply to State. And in other contexts, courts have been decidedly less deferential to government litigating positions than ex ante decisions.

More practically, when Executive officials disagree, they may need to bargain, and that bargaining will take place in the shadow of the law. If an U.S. Attorney’s Office knows that all it needs to do is file the indictment to obviate immunity, then that is pretty substantial leverage in any negotiation with State. And we know that there can be disagreements among federal agencies, some of which end up with the federal government on both sides of the v.

Defenders of the Second Circuit’s view might say that there will be perfect coordination between Justice and State. But if so, then an affirmative representation of such coordination should not be hard to come by. Others might say that immunity determinations are so straightforward that the departments will always agree. But if so, then presumably the judge would agree too, so the deference question is moot. At a minimum, I think that a decision to treat State Department statements and Justice Department prosecutions as equivalent deserves more explanation than the court’s passing discussion.

Acknowledging this distinction also might provide support for another aspect of the decision that did not receive substantial treatment. Ingrid’s post questions why the Second Circuit suggests that the Executive would be entitled to more deference when conferring immunity than when denying it. Perhaps part of the answer stems from the form of a decision to confer (versus deny) immunity. In Halkbank, the decision to deny immunity came in the form of a prosecution. But a decision to confer immunity, almost by definition, could not come in the form of a federal criminal prosecution of a foreign state. It must come from another source. For a state or local prosecution, the immunity determination would have to come from some affirmative intervention by the federal government, not (as in Halkbank) merely a decision to prosecute. In all likelihood, the decision to confer immunity would come in the form of the typical State Department statement. For a federal criminal prosecution, the decision to confer immunity might come from inaction, that is, the decision not to indict. Such decisions fall within the core of prosecutorial discretion, almost never questioned by courts. In other words, more deference. Either way, a rule that discounts Justice Department decisions to prosecute would be consistent with treating some decisions to confer immunity with greater deference than the decision to deny it where the federal prosecution itself is the immunity denial.