UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) Chief Judge Beryl A. Howell NOTICE Notice is hereby provided that this Notice and the redacted copies of the six Memoranda and Orders and Memorandum Opinions issued to date in this matter, attached hereto, will be made publicly available on the Court’s website: Attachment 1: September 19, 2018 Memorandum Opinion, ECF No. 42; Attachment 2: October 5, 2018 Memorandum and Order, ECF No. 30; Attachment 3: January 10, 2019 Memorandum and Order, ECF No. 48; Attachment 4: January 15, 2019 Memorandum and Order, ECF No. 57; Attachment 5: January 24, 2019 Memorandum Opinion, ECF No. 65; and Attachment 6: January 30, 2019 Memorandum and Order, ECF No. 72. Both the September 19, 2018 Order, ECF No. 19, accompanying the September 19, 2018 Memorandum Opinion, and the January 15, 2019 Memorandum and Order, instructed the government to submit a report advising the Court which portions of the September 19, 2018 Memorandum Opinion may be unsealed. The government submitted that report on January 22, 2019, see Gov’t’s Report on Unsealing, ECF No. 60, which was amended the following day, see Gov’t’s Report on Unsealing, ECF No. 61. A copy of that Memorandum Opinion, which adopts some of the government’s proposed redactions and makes additional redactions that the Court finds are necessary, is Attachment 1 to this Notice. 1 Additionally, on January 31, 2019, the Court ordered the parties to file a joint status report advising the Court whether the other five memoranda issued in this matter could be unsealed with redactions, and, if so, to propose redactions. Min. Order (Jan. 31, 2019). Each party filed a timely status report on February 15, 2019. See Witness’s Status Report, ECF No. 90; Gov’t’s Status Report, ECF No. 91. The parties agree on the appropriate redactions for the October 5, 2018 Memorandum and Order, the January 10, 2019 Memorandum and Order, and the January 24, 2019 Memorandum Opinion. Copies of these memoranda are included with this Notice as Attachments 2, 3, and 5, respectively. The parties disagree, however, about the redactions to be applied to the January 15, 2019 Memorandum and Order and the January 30, 2019 Memorandum and Order. Redactions to these two memoranda, with limited exception, have been made consistent with the government’s proposal, over the witness’s objections. Copies of these memoranda are included with this Notice as Attachments 4 and 6, respectively. Date: February 28, 2019 __________________________ BERYL A. HOWELL Chief Judge 2 ATTACHMENT 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Grand Jury Action No. 18-41 (BAH) In re GRAND JURY SUBPOENA NO. 7409 Chief Judge Beryl A. Howell FILED UNDER SEAL MEMORANDUM OPINION A federal grand jury sitting in the District of Columbia has issued a subpoena to to produce certain records in connection with an ongoing investigation conducted by the United States, through the Special Counsel?s Of?ce Pending before the Court is Motion to Quash Grand Jury Subpoena (?Mov.?s Mot?), ECF No. 3, on grounds that (1) is immune, under the Foreign Sovereign Immunities Act 28 U.S.C. 1602 et seq., from compliance with the subpoena, and (2) compliance would require to violate foreign law, and thus be ?unreasonable or oppressive? under Federal Rule of Criminal Procedure For the reasons explained in further detail below, neither argument persuades. motion therefore is denied, and is ordered to complete production of records responsive to the grand jury subpoena by October I, 2018. I. BACKGROUND The SCO is investigating foreign interference in the 2016 presidential election and potential collusion in those efforts by American citizens. The SCO has identi?ed certain as relevant to the investigation and, on July 1 l, 2018, the grandjury issued a subpoena to which is by Country A, to produce by, July 27, 2018, any such records held in the United States or abroad. See Subpoena, ECF No. On July 26, 2018, through counsel, expressed to the SCO ?concerns that pertain to the potential waiver of its sovereign immunity, as well as with respect to the reach of the subpoena beyond Mov.?s Ltr., dated July 26, 2018 (?Mov.?s July 26 Ltr.?) at 1, ECF No. 3-2. counsel asserted that under the as by [Country and therefore ?is immune from thejurisdiction of US. courts as well as the reach of US. subpoenas.? Id. at 1?2. ?While wishes to cooperate With the Special Counsel?s investigation,? counsel wrote, ?it cannot do so at the cost of potentially waiving or undermining its legal position with respect to the applicability of the FSIA and the protections that the FSIA affords Id. at 2. counsel also expressed doubt that any exception to the FSIA applied, noting specifically that the exception for cases in which ?the action is based upon a commercial activity carried on in the United States by foreign state,? 28 U.S.C. 1605(a)(2), likely did not apply because 161.2 In response, the SCO disagreed ?with your suggestion that sovereign immunity or any other legal doctrine relieves your client from the obligation to produce the documents responsive I 2 counsel questioned whether this Court has personal jurisdiction see Mov.?s July 26 Ltr. at 2, to which the SCO responded that ?[t]he subpoena was served on which ?is not an independent entity.? Ltr., dated July 30, 2018 at 2, ECF No. 3-3. The SCO argued that ?[b]ecause the subpoena was served on it is immaterial whether has access to or visibility into documents in the possession as itself ?unquestionably does have such access and visibility.? Id. (internal quotation marks omitted). The next letter counsel sent the SCO made no reference to personaljurisdiction, see Mov.?s Ltr., dated Aug. 2, 2018, ECF No. 4-1, and has not disputed this Court?s personal jurisdiction over in either subsequent correspondence with the SCO or its briefs supporting its motion to quash, thus waiving any objection on that ground. See Sickle v. Torres Advanced Enter. Sal's, LLC, 884 F.3d 338, 344 (DC. Cir. 2018) (?Unlike subject matterjurisdiction, personaljurisdiction is a personal defense that can be waived or forfeited? by ?cho[osing] not to brief or argue the question of personal jurisdiction?). to the subpoena in possession, custody, or control?wherever the documents are located.? Ltr., dated July 30,2018 July 30 Ltr.?) at 1, ECF No. 3-3. The SCO asserted that the FSIA neither ?applies in criminal cases [n]or divests the district court Of power to enforce the subpoena,? and that even if the FSIA applies, the commercial activity exception would apply due to activities in the United States.? Id. at 1?2. On August 2, 2018, counsel sought from the SCO ?written confirmation . . . that it is permissible . . . to share the grandjury subpoena with other personnel who would be involved in collecting the documents requested, including personnel at in [City and at that may have responsive information.? Mov.?s Ltr., dated Aug. 2, 2018 (?Mov.?s Aug. 2 Ltr.?) at l, ECF No. 4-1.3 While reiterating desire ?to cooperate with the grand jury?s investigation? and to ?nd ?a resolution that would provide the with the documents requested,? emphasized its continuing ?concerns on how its protections under the could be impacted?or waived entirely?by producing documents responsive to the grand jury subpoena,? as well as Concern that compliance would violate ?applicable law in [Country Id. at 1?2.4_ As to the latter concern, proposed that?it produce responsive documents ?consistent with, and as permitted by, the applicable laws ofthe jurisdictions in which the information may [be] located,? subject to three conditions: the (1) agreement that production ?is not intended to be either an express or implied waiver of protections under the (2) representation ?that [the has a compelling need for the records requested,? and (3) agreement ?to a 30-day extension of the . subpoena?s return date, up to and including September 3, 2018, to give adequate time to collect and process Id. at 2. The SCO responded the same day, informing that the SCO ?cannot agree to all ofthe representations made in your letter,? but ?offer[ing] the following assurances regarding your client?s production of materials responsive to the subpoena.? Ltr., dated Aug. 2, 2018 Aug. 2 Ltr.?) at 1, ECF No. 4-2. The SCO ?agree[d] that in the event the were deemed? to apply, ?production of documents responsive to the instant grand jury subpoena is not intended to constitute either an express or implied waiver of any protections might be entitled to pursuant to the Id. The SCO further represented that it had ?a compelling need for records that are responsiVe to the grand jury subpoena,? while maintaining nonetheless that the government need not ?demonstrate such a compelling need in order to compel compliance with the subpoena.? Id. Finally, the SCO agreed to extend the subpoena?s return date by one week, to August 10, 2018. Id. On August 6, 2018, counsel communicated to the SCO his beliefthat and that compliance with the subpoena thus ?could constitute and requested that the SCO ?share any thoughts your of?ce has on this issue.? Id. The SCO responded that will take a look at this.? Email, dated Aug. 7, 2018, ECF No. 4-3. counsel then shared ?a little more color on the situation and what I?ve learned since? sending the prior email. Mov.?s Email, dated Aug. 7, 2018, ECF No. 4-3. Although ?has already begun pulling together the documents responsive to the subpoena,? counsel said, ?before producing these to your of?ce,? At the same time, counsel assured the SCO that Acknowledging that ?we?re not privy to the exact nature of your investigation and the specific need for Id. On August 14, 2018, the SCO responded that In an accompanying email, dated one day later, the SCO stated that will extend the return date on the subpoena to [August 16, 2018], but do not anticipate granting any further extensions.? Email, dated Aug. 15, 2018 Aug. 15 Email?), ECF No. 4-4. In response to the letter, counsel asked whether (1) the SCO would and (2) Mov.?s Email, dated Aug. 14, 2018 (?Mov.?s Aug. 14 Email?), ECF No. 4-4. The SCO objected, cautioning counsel subsequently ?requested a further extension of the deadline for compliance with the subpoena until early September.? Mov.?s Email, dated Aug. 15, 2018, ECF No. 4-4. The SCO denied this request, stating that (1) ?[t]he subpoena was served on over one month ago,? (2) ?[fjrom the very inception of our discussions about concerns and how those concerns could be allayed, we have made clear to you that in light of our investigative exigencies we were not able to agree to a extension of the return date,? (3) an attempt to allow to fully consider the issue, we nonetheless granted extensions of that deadline totaling almost 3 weeks,? and (4) ?we told you when we agreed to your last extension request that it would likely be our ?nal grant of an extension.? Email, dated Aug. 16, 2018, ECF No. 4-4. On August 16, 2018, ?led a motion to quash the grand jury subpoena. See Mov.?s Mot.s The opposition, see Opp?n Mov.?s Mot. (?SCO?sOpp?n?), ECF No. 4, was accompanied by a motion for leave to file an ex parte, in camera supplement, see 5 also ?led a motion to seal case, see Mov.?s Mot. Seal Case, ECF No. l, which the Court granted, see Order Granting Mov.?s Mot. Seal Case, ECF No. 2. 5 Mot. Leave File Ex Parte Suppl. Mot. Ex Parte ECF No. 5, which the Court granted, see Order Granting Mot. Ex Parte Suppl., ECF No. 6. filed a reply on August 31, 2018. See Mov.?s Reply Opp?n (?Mov.?s Reply?), ECF No. 8. Following a hearing on September 1 1, 2108, at which the SCO con?rmed that the instant subpoena?s issuance to an instrumentality ofa foreign government was ?approved in the normal matter . . . within the ranks ofthe Department ofJustice,? Hr?g Tr. (Sept. 11, 2018) at 39:16?23, ECF No. 16, and the ?ling oftwo ex parte, in camera submissions, see Order Granting Mot. Ex Part6 Suppl.; Minute Order, dated Sept. 14, 2018, motion to quash now is ripe for review. II. LEGAL STANDARD ?On motion made the court may quash or modify subpoena if compliance would be unreasonable or oppressive.? FED. R. CRIM. P. ?[O]ne who relies on foreign law assumes the burden of showing that such law prevents compliance with the court?s order.? In re Sealed Case, 825 F.2d 494, 498 (DC. Cir. 1987); accord SEC v. Banner Fund Int?l, 211 F.3d 602, 613 (DC. Cir. 2000). ?Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or source.? FED. R. CRIM. P. 26.1. DISCUSSION seeks to quash the grandjury subpoena on grounds that (1) the SIA grants immunity from compliance with the subpoena and the jurisdiction of this Court to enforce the subpoena, and (2) compliance would be unreasonable or oppressive, as would violate foreign law. As explained below, neither argument persuades. A. The FSIA Does Not Immunize From Compliance With the Grand Jury Subpoena contends that as an agency or instrumentality of Country A, it ?is immune from [the] jurisdiction of US. courts, as well as the reach of US. subpoenas.? Mov.?s Mem. Supp. Mot. (?Mov.?s Mem.?) at 4, ECF No. 3.6 Foreign states and their agencies and instrumentalities generally are immune from thejurisdiction of American courts, but the FSIA recognizes an exception to immunity for certain actions relating to foreign states? commercial activities. 28 U.S.C. 1603(a), 1604, 1605(a)(2). Assuming the grant ofimmunity applies outside civil cases, the exceptions do as well. The SCO, through an ex parte, in camera submission, has demonstrated that the commercial activity exception applies here. The FSIA thus does not immunize from compliance with the grandjury subpoena. 1. Assuming the FSIA Applies Outside Civil Cases, the Exceptions to Immunity Apply Outside Civil Cases As Well The FSIA provides that ?a foreign state shall be immune from the jurisdiction of the courts ofthe United States and ofthe States,? subject to certain exceptions. 28 U.S.C. 1604. The FSIA thus ?renders a foreign government ?presumptively immune from thejurisdiction of United States courts unless one of the Act?s express exceptions to sovereign immunity applies..?? Nanko Shipping, USA v. Alcoa, Inc, 850 F.3d 461, 465 (DC. Cir. 2017) (quoting Bank Markazz' v. Petersen, 136 S. Ct. 1310, 1317 n.1 (2016)). argues that these exceptions, set out in 28 U.S.C. 1605?07, apply only to civil cases and, consequently, that the FSIA grants foreign states unquali?ed immunity outside the civil context. See Mov.?s Reply at 4. The SCO disputes that the FSIA applies outside the civil context, but contends that, if the statute applies here, the exceptions must apply as well. See Opp?n at 6?1 1. The Court assumes, without deciding, that the FSIA applies to grand jury investigative matters and concludes, contrary to 6 position, that the exceptions to immunity, which are not by their plain terms limited to civil cases, apply outside the civil context as well. The commercial activity exception, for example, provides: A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case . . . in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. l605(a)(2). This language is not textually limited to civil matters. To the contrary, Section unqualified language provides that the exception applies ?in any case.? Id.; see SAS Inst, Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018) word ?any? naturally carries an expansive meaning.? . . . When used (as here) with a singular noun in af?rmative contexts, the word ?any? ordinarily refers to a member ofa particular group or class without distinction or limitation and in this way implies every member of the class or group.? (quoting OXFORD ENGLISH DICTIONARY (3d ed. Mar. 2016) (alterations and internal quotation marks The other exceptions to immunity likewise apply ?in any case? or ?in any action? without any express limitation to civil matters. See 28 U.S.C. 1605(a), (enumerating six exceptions to sovereign immunity that apply ?in any case?); id. 1605(d) foreign state shall not be immune from thejurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage?); id. 1607 (enumerating counterclaim?based exceptions to immunity that apply any action?). Even though the commercial activity exception is not facially limited to civil cases, argues nonetheless that courts cannot exercisejurisdiction over non- plaintiff foreign states in non-civil matters because 28 U.S.C. ?l330(a), the FSIA?sjurisdictional statute, confers jurisdiction only over ?civil action[s] against a foreign state.? Mov.?s Reply at 4 8 (citing 28 U.S.C. 1330(a)). Section 1330(a) does not facially purport to be the exclusive basis for exercisingjurisdiction over a non-plaintiff foreign state, however.7 Jurisdiction here is proper under 28 U.S.C. 3231, as the grandjury is investigating ?offenses against the laws of the United States.? 28 U.S.C. 3231. posits that jurisdiction can lie only under Section 1330(a), not under Section 3231, because ?the FSIA [is] the sole basis for obtainingjurisdiction over a foreign state in our courts.? Argentine Republic v. Amerada Hess Shipping Corp, 488 US. 428, 434 (1989). ?[O]btainingjurisdiction over a foreign state? under the FSIA, id, however, requires merely that one of the substantive exceptions to immunity apply, not also, as argues, thatjurisdiction lie under Section 1330(a) itself. Indeed, Amerada Hess expressly recognizes thatjurisdiction over a foreign state may lie under a statute other than Section 1330(a), so long as one ofthe exceptions to immunity applies. See id. at 438?39 (?Unless the present case is within 1605(b) or another exception to the FSIA, the statute conferring general admiralty and maritime jurisdiction on the federal courts does not authorize the bringing of this action, against The Supreme Court elsewhere has explained that ?subject matterjurisdiction in any [action against a foreign state] depends on the existence of one ofthe specified exceptions to foreign sovereign immunity.? Verlinden B. V. v. Cent. Bank ofNigeria, 461 US 480, 493 (1983). Amerada Hess thus best is read merely to reject a litigant?s ability to make an end-run around the substantive immunity provisions by invoking a separatejurisdictional statute, such as the Alien Tort Statute 28 U.S.C. 1350, as the plaintiff there attempted, see 7 The general diversity jurisdiction statute confersjurisdiction, subject to a greater-than-875,000 amount in controversy requirement, over civil actions between ?a foreign state . . . as plaintiff and citizens of a State or of different States,? 28 U.S.C. ?1332(a)(4), but does not conferjurisdiction over actions against foreign states. 9 488 US. at 432. A litigant who demonstrates that one of the exceptions to immunity applies thus may rely on ajurisdictional statute other than Section 1330(a), such as Section 3231. This reading ofAmerada Hess best accords with the language. Section 1604 provides that ?a foreign state shall be immune from the jurisdiction of the courts of the United States . . . except as provided in sections 1605 to 1607.? 28 U.S.C. 1604 (emphasis added). This mandatory phrasing naturally implies that if an exception to immunity in Sections 1605 through 1607 applies, a foreign state shall not have immunity. Sections 1605 through 1607 do not distinguish between civil and non-civil matters. See id. 1605?07. To conclude that a foreign state is entitled to immunity in a non-civil matter despite that an exception to immunity applies ?as provided in sections 1605 to 1607,? id. 1604, does not square with Section 1604. Language in another section of the statute supports this reading of the FSIA. Section 1602 instructs courts to resolve ?[c]laims of foreign states to immunity . . . in conformity with the principles setforih in this chapter.? Id. 1602 (emphasis added). The exceptions to immunity, see id. 1605?07, and Section 1602 are located in the same chapter, see id. ch. 97, while Section 1330(a) is located in a separate chapter, see id. ch. 85. To conclude that a foreign state has immunity because an action falls outside Section scope, notwithstanding that an exception to immunity otherwise would apply, would be to resolve a claim of immunity ?in conformity with? ?principles? other than those ?set forth in this chapter,? id. 1602, in violation of Section 1602. Nor would allowing litigants to invoke a district court?s jurisdiction over a foreign state by relying on statutes other than Section 1330(a) render Section 1330(a) superfluous, as Section enactment allowed district courts to hear actions over which jurisdiction otherwise did not exist. Section 1330(a) grants the district courts ?original jurisdiction without regard to 10 amount in controversy of any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity.? 28 U.S.C. 1330(a). At the time the FSIA was enacted, the general federal question jurisdiction statute, 28 U.S.C. 1331, granted jurisdiction over ?civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties ofthe United States.? 28 U.S.C. 1331(a) (1976), amended by Act of Dec.? 1, 1980, Pub. L. No. 96-486, 2, 94 Stat. 2369, 2369.8 Section 1330(a) thus allowed district courts to hear two categories of actions that Section 1331, as then written, did not. First, a litigant could bring an action under Section 1330(a), but not under Section 1331, regardless ofthe amount in controversy. Second, a litigant could bring an action under Section 1330(a), but not under Section 1331, regardless of whether the litigant had satis?ed the well-pleaded complaint rule, which requires ?that the federal question must appear on the face of a well-pleaded Complaint and may not enter in anticipation ofa defense.? Verlinden B. V., 461 US. at 494 (recognizing that the well-pleaded complaint rule does not apply to actions under Section 1330(a)). Other specialized jurisdictional statutes in existence when the FSIA was enacted, such as the ATS, 28 U.S.C. 1333 (admiralty, maritime, and prize), 28 U.S.C. 1335 (interpleader), 28 U.S.C. 1337 (commerce and antitrust), and 28 U.S.C. 1338 (intellectual property), likewise did not grant the full scope ofjurisdiction Section 1330(a) provides. Cf Amerada Hess, 488 US. at 437 (observing that these jurisdictional statutes predated the FSIA). The omission of any statute speci?cally conferringjurisdiction over non-civil matters against foreign states thus 3 Section amount-in-controversy requirement did not apply to actions ?brought against the United States, any agency thereof, or any of?cer or employee thereofin his of?cial capacity,? 28 U.S.C. 1331(a) (1976), but this exception rarely if ever would apply in an action against a foreign state. 11 simply may re?ect Congress?sjudgment that the existing scope of federal jurisdiction over non- civil actions against foreign states required no expansion. For these reasons, the exceptions to immunity are co-extensive with the scope of pctential immunity, such that if FSIA immunity extends outside the civil context, so too do the exceptions. 2. The Commercial Activities Exception The commercial activities exception sets, out in three separate clauses, the circumstances under which a foreign state is not ?immune from the jurisdiction of courts of the United States??when ?the action is based upon? (1) ?a commercial activity carried on in the United States by the foreign state,? (2) ?an act performed in the United States in connection with a commercial activity of the foreign state elsewhere,? or (3) ?an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.? 28 U.S.C. 1605(a)(2). activity? is ?a regular course of commercial conduct or a particular commercial transaction or act.? Id. 1603(d). An activity?s ?commercial character? is ?determined by reference to the nature of the course of conduct or particular transaction or act, rather than . . . to its purpose.? Id. A foreign state?s acts are ?commercial? within the meaning ?when a foreign government acts, not as regulatOr of a market, but in the manner of a private player within it.? Republic of Argentina v. Weltover, Inc, 504 US. 607, 614 (1992). Moreover, ?the question is not whether the foreign government is acting with a pro?t motive or instead with the aim of ful?lling uniquely sovereign objectives,? but ?whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce.? 1d. (internal quotation marks omitted). 12 As to the exception?s first clause, ?commercial activity carried on in the United States by a foreign state? is ?commercial activity carried on by such state and having substantial contact with the United States.? 28 1603(e). ?Thus, to invoke the district court?sjurisdiction under clause one, the plaintiff?s claim must be based upon some commercial activity by the foreign state that had substantial contact with the United States.? Odhz'ambo 12. Republic of Kenya, 764 F.3d 31, 36 (DC Cir. 2014) (internal quotation marks omitted). As to the third clause, ?an effect is ?direct? if it follows as an immediate consequence ofthe defendant?s activity,? but such effect need not be ?substantial? or ?foreseeable.? Weltover, Inc, 504 US. at 618 (alteration and internal quotation marks omitted); see also Cruise Connections Charter Mgmt. 1, LP v. Attorney Gen. ofCanada, 600 F.3d 661, 664 (DC Cir. 2010) direct effect is one which has no intervening element, but, rather, flows in a straight line without deviation or interruption.? (alterations and internal quotation marks omitted)). The Supreme Court has explained that ?an action is ?based upon? the particular conduct that constitutes the ?gravamen? of the suit.? OBB Personenverkehr AG 12. Sachs, 136 S. Ct. 390, 396 (2015); see also Fry v. Napoleon Cmty. Sch, 137 S. Ct. 743, 755 (2017) court?s jurisdiction under the Foreign Sovereign Immunities Act turns on the ?gravamen,? or ?essentials,? ofthe plaintiff?s suit.? (quoting Sachs, 136 S. Ct. at ?[T]he particular conduct that constitutes the ?gravamen,?? Sachs, 136 S. Ct. at 396, of an action to compel enforcement of or quash a grandjury subpoena most sensibly is said to be such conduct (1) that is part of ?the general subject of the grand jury?s investigation? and (2) as to which there exists a ?reasonable 9 In Nelson v. SaudiArabia, the Supreme Court said that ?the phrase ?based upon,?? as used in Section 1605(a)(2), ?is read most naturally to mean those elements ofa claim that, ifproven, would entitle a plaintiffto relief under his theory ofthe case.? 507 US. 349, 357 (1993). The DC Circuit, relying on Nelson?s language, explained that ?a claim is ?based upon? commercial activity ifthe activity establishes one ofthe elements ofa claim that, if proven, would entitle a plaintiffto relief under his theory ofthe case.? Odhlambo, 764 F.3d at 36. More - recently, however, Sachs rejected a ?one-element approach? to Section 1605(a)(2), holding that a court instead must ?zero[] in on the core of[a plaintiffs] suit.? 136 S. Ct. at 396. 13 possibility that the category of materials the Government seeks will produce information? that is ?relevant.? United States v. R. Enters, Inc, 498 U.S. 292, 301 (1991). This yields the following rule: a grand jury subpoena matter fits within the commercial activity exception if an activity or act of the kind Section 1605(a)(2) describes is part of the general subject of the grand jury?s investigation, and there exists a reasonable possibility that the category of materials the subpoena identifies will produce information relevant to such activity or act.10 3. Analysis The SCO argues that the commercial activity exception applies here. Opp?n at 10. Through an ex parte, in camera submission, the SCO has elaborated on the relationship between Section 1605(a)(2) activities or acts and the materials sought to be produced. Having thoroughly reviewed this ex parte, in camera submission, the Court is satisfied that the SCO has met its burden to show that (1) a Section 1605(a)(2) activity or act is part of the general subject ofthe grand jury?s investigation and (2) a reasonable possibility exists that the instant subpoena will produce information relevant to such activity or act. Cf. United States v. Nixon, 418 U.S. 683, 700 (1974) (?Our conclusion is based on the record before us, much of which is under The contents of the ex parte, in camera Submission overcome any '0 The SCO argues that the relevant standard here is not R. Enterprises, Inc. ?5 standard to determine a grand jury subpoena?s relevancy, but rather the standard to determine whether a court has personal jurisdiction to enforce a subpoena compelling production of See Opp?n at 10?] 1. The commercial activity exception applies only where a Section 1605(a)(2) activity or act ?constitutes the ?gravamen? of the suit,? however. Sachs, 136 S. Ct. at 396 (2015). Although establishing personal jurisdiction over an entity is necessary to obtain reliefin the sense that a court lacks authority to grant relief against an entity not within the court?s personaljurisdiction, see Bristol-Myers Squibb Co. v. Superior Court of Cat, 137 S. Ct. 1773, 1779 (2017), personaljurisdiction alone cannot ordinarily be said to be the ?gravamen? of a matter as Sachs uses that term, 136 S. Ct. at 396. A Section 1605(a)(2) activity or act thus may establish a court?s personal jurisdiction over an entity without establishing a court?s subject- matterjurisdiction under the FSIA. On September 14, 2018, the Court directed the government to submit an ex parte, in camera submission ?addressing the following question: whether an act or activity ofthe kind described in 28 U.S.C. 1605(a)(2) establishes a reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject ofthe grandjury?s investigation.? Minute Order, dated Sept. 14, 2018. On September 17, 2018, the SCO ?led a submission responsive to the Court?s order. 14 inference one otherwise might draw from Mov.?s Mem. at 6 (parentheses omitted). argues that the commercial activity exception does not apply because the SCO ?argues generically that the exception applies because without specifying any ?jurisdictional nexus? between a Section 1605(a)(2) activity or act and the subpoenaed materials. Mov.?s Reply at 4. Obviously, cannot address the contents of the ex parte, in camera submission, which persuades the Court that a nexus exists between Section 1605(a)(2) activities or acts and the materials sought to be produced, and thus that the instant matter is ?based upon? such activities or acts. The Court recognizes dif?cult position in not being privy to the information reviewed and relied upon in resolving the pending motion. See In re John Doe Corp, 675 F.2d 482, 490 (2d Cir. 1982) cannot make factual arguments about materials they have not seen and to that degree they are hampered in presenting their case?). The law is well-settled, however, that courts may ?use in camera, ex parte proceedings to determine the propriety of a grand jury subpoena? when ?necessary to ensure the secrecy of ongoing grand jury proceedings.? In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (DC. Cir. 1998); see also In re GrandJury Subpoena, Judith Miller, 438 F.3d 1 141, 179 (DC. Cir. 2006); In re GrandJury Investigation, No. MC 17-2336 (BAH), 2017 WL 4898143, at *7 (D.D.C. Oct. 2, 2017). ?The alternatives? to ex parte, in camera review here would ?sacrific[e] the secrecy of the grand jury.? John Doe Corp, 675 F.2d at 490; see also R. Enters, 498 US. at 299 (?Requiring the Government to explain in too much detail the particular reasons underlying a subpoena threatens to compromise the indispensable secrecy of grand jury proceedings.? (internal quotation marks omitted)). 15 For these reasons, the FSIA does not immunize from complying with the subpoena. B. Compliance With the Subpoena Would Not Be Unreasonable or Oppressive further argues that compliance with the grand jury subpoena would require violating and thus be unreasonable and oppressive. fails to Show, however, that the subpoena and foreign law impose con?icting obligations and, in any event, the grand jury?s strong need for the materials sought and warrant the subpoena?s enforcement notwithstanding any foreign Foreign law thus does not excuse from complying with the subpoena. 1. Compliance With the Instant Subpoena Would Not Violate Foreign Law argues that complying with the subpoena would require violating For the reasons that follow, fails-to show that the grand jury subpoena and foreign law impose con?icting legal obligations. cites no contrary authority relying instead on conclusory declarations by retained counsel, which themselves cite no legal authority on this question of The Court gives these declarations little weight. See Doak v. Johnson, 798 F.3d 1096, 1107 (DC. Cir. 2015) (declining, in the summaryjudgment context, to credit ?bare, conclusory statement[s] . . . in declaration?). As an initial matter, the Court teased this argument from the declaration, as failed to raise this argument in its briefs. This argument is therefore waived. '2 1 6 See Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 11 1, 1142 (DC. Cir. 1999) (?We routinely and for good reason refuse to consider contentions not raised in a party?s brief?). The argument fares no better on the merits, identifies no contrary authority other than assertions by neither of whom cite or analyze Country A legal authorities. The Court simply need not credit such conclusory opinions. See Doak, 798 F.3d at 1 107. Finally, argued at the September 11 hearing and via declarations of though not through its briefs, has waived this argument in two ways. First, failure to raise this argument in any briefs constitutes waiver. See Berger, 170 F.3d at 1142. Second, are entirely conclusory, offering no substantive analysis and failing even to identify see also Doak, 798 F.3d at 1107; NY. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (DC. Cir. 2007) (?It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel?s work.? (internal quotation marks omitted)). 17 For these reasons, compliance with the subpoena at issue would not require to violate foreign law. 2. Enforcement of the Grand Jury Subpoena is Required Even If Disclosure Violates Foreign Law Even if complying with the grand jury subpoena would require to violate foreign law, the government?s important interest in obtaining the materials sought justify compelling compliance with this subpoena nonetheless. ?[A]lthough courts recognize comity as an important objective, there is little doubt that a United States Court has the power to order any party within its jurisdiction to testify or produce documents regardless of a foreign sovereign?s views to the contrary.? In re Sealed Case, 832 F.2d 1268, 1283 (DC. Cir. 1987) (alterations and internal quotation marks omitted); see also In re Sealed Case, 825 F.2d at 497? 98 court?s ability to order a person to produce documents in contravention of foreign law is thought to be In the grand jury context, courts regularly have concluded that government law enforcement interests outweigh Section 442(1)(c) of the Restatement (Third) of the Foreign Relations Law ofthe United States directs that deciding whether to issue an order directing production of information located abroad,? a court ?should take into account? (1) ?the importance to the investigation . . . ofthe documents or other information requested,? (2) ?the degree of specificity of the request,? (3) ?whether the information originated in the United States,? (4) ?the availability of alternative '3 Braswell v. United States held that a ?custodian of corporate records? cannot ?resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the i?h Amendment,? 487 US. 99, 100 (1988), abrogating that aspect ofIn re Sealed Case holding otherwise, see 832 F.2d at 1274?82; see also "In re Sealed Case (Gov 't Records), 950 F.2d 736, 739 n.5 (DC. Cir. 1991) (?Braswell effectively rejects the portion ofthis court?s opinion in In re Sealed Case . . . that recognizes a corporate custodian?s right to resist a grand jury subpoena on the ground that the act of production itself might incriminate Braswell did not purport to abrogate the aspect of In re Sealed Case recognizing district courts? power to enforce grandjury subpoenas compelling disclosure prohibited by foreign law, however, and In re Sealed Case remains good law in this respect. '4 18 means of securing the information,? and (5) ?the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.? RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 442(1)(c) (1987). The Supreme Court, citing a draft version of Section 442(l)(c), identified these factors as ?relevant to any comity analysis.? Socie't? Nationale Industrielle A?rospatiaie v. US. Dist. Court for S. Dist. aflowa, 482 US. 522, 544 n.28 (1987).? The subpoena at issue cannot be faulted for insufficient specificity, and the SCO does not argue that the information sought originated in the United States. The ex parte, in camera submission, meanwhile, persuades the Court that the materials sought are important to the grand jury?s investigation and that failure to secure the materials would undermine important interests of the United States. For these reasons, under the circumstances presented, the Court concludes that the subpoena should be enforced. Section 442(2) of the Restatement (Third) further provides that disclosure of information located outside the United States is prohibited by a law, regulation, or order of a court or other authority of the state in which the information or prospective witness is located, or of the state of which a prospective witness is a national,? an American court ?may require the person to whom the order is directed to make a good faith effort to secure permission from the foreign authorities to make the information available,? and ?should not ordinarily impose sanctions of contempt . . . on a party that has failed to comply with the order for production, except in cases of deliberate concealment or removal of information or of failure to make a good faith effort in accordance with paragraph Restatement (Third) (emphases '5 1 9 added). As the emphasized terms indicate, however, these provisions are not absolute, and their application may be inappropriate under particular circumstances. '6 In re Sealed Case, which voiced ?considerable discomfort? with the idea ?that a court of law should order a violation of law, particularly on the territory ofthe sovereign whose law is in question,? 825 F.2d at 498, involved circumstances materially different than those presented here. The consideration that was ?[m]ost important to [the Sealed Case panel?s] decision [wa]s the fact that? contempt ?sanctions represent[ed] an attempt by an American court to compel a foreign person to violate the laws of a different foreign sovereign on that sovereign?s own territory.? Id. That consideration is absent here, as only substantive arguments assert that compliance with the subpoena would require See Mov.?s Mem. at 7? 8. Moreover, in Sealed Case ?the government concede[d] that it would be impossible for the bank to comply with the contempt order without violating the laws of Country on Country Y?s soil,? 825 F.2d at 498. Here, in contrast, the SCO asserts that compliance with the subpoena would not require to violate foreign law, and the record before the Court supports this conclusion, for the reasons discussed above. As already discussed, The Sealed Case panel ?emphasize[d] the limited nature of our holding on this issue,? and explained that any ofthe facts we rest on here were different, our helding could well be different.? Id. Given the significant factual dissimilarity between that and the instant matter, enforcing the instant grand jury subpoena does not cause the ?considerable discomfort,? id. at 498, the Sealed Case panel expressed. 16 20 IV. 1 CONCLUSION For the foregoing reasons, Motion to Quash Grand Jury Subpoena is denied. shall complete production of the subpoenaed records by October 1, 2018. An appropriate Order accompanies this Memorandum Opinion. Date: September 19, 2018 Oar/W BERYL A. HOWELL Chief Judge 21 ATTACHMENT 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) Chief Judge Beryl A. Howell Filed Under Seal MEMORANDUM AND ORDER On September 19, 2018, the Court denied to Quash Grand Jury Subpoena, ECF No. 3, and ordered to complete production of the subpoenaed records by October 1, 2018. Order, ECF No. 19. Prior to the October 1, 2018 deadline, appealed the denial of its motion to quash, see Notice of Appeal, ECF No. 22, and sought a stay ofthe September 19 Order, Opp?n Gov.?s Mot. Ex. A, Emergency Mot. Stay District Ct.?s Order Compelling Respond Grand Jury Subpoena No. 7409 at 12, ECF No. 29. On October 3, 2018, the DC. Circuit dismissed that appeal for lack of appellatejurisdiction as had not yet been held in contempt, and dismissed motion for a stay as moot. See In re Grand Jury Subpoena, No. 18-3068 (Oct. 3, 2018) (citing United States v. Ryan, 402 US. 530, 532 (1971) and In re Sealed Case, 827 F.2d 776, 777 (DC. Cir. 1987) (per curiam)). The next day, on October 4, 2018, the government ?led the pending Motion to Hold the Witness in Contempt for Failure to Comply with the Court?s September 19, 2018 Order (?Contempt Mot?), ECF N0. 27, even though the Court of Appeals has not yet issued its mandate. In accordance with the Court?s scheduling order, see Min. Order (Oct. 4, 201,8), ?led its opposition, Opp?n, ECF N0. 29, and the government ?led its reply, see 1 Gov.?s Reply Supp. Contempt Mot. (?Reply?), ECF No. 28. A hearing was held on October 5, 2018, see Min. Entry (Oct. 5, 2018), and the motion is now ripe. The parties dispute this Court?s jurisdiction to entertain the government?s contempt motion prior to receiving the mandate from the Court of Appeals. In the government?s view, a district court maintains authority to enforce properly issued judgments if no stay pending appeal has been issued. See Contempt Mot. at 5 (citing N.L.R.B. v. Cincinnati Bronze, Inc, 829 F.2d 585, 588 (6th Cir. 1987); SEC v. Diversified Growth Corp, 595 F. Supp. 1159, 1170 (D.D.C. 1984)); see also Reply at 1?3 (citing Blue Cross Blue Shield Ass ?n v. Am. Express Co., 467 F.3d 634, 638 (7th Cir. 2006); Chaganti Assocs., P. C. v. Nowotny, 470 F.3d 1215, 1222?23 (8th Cir. 2006); Deering Milliken, Inc. v. FTC, 647 F. 2d 1124, 1128?29 (DC. Cir. 1978)). cites countervailing authority. See Opp?n at 3. In Princz v. Federal Republic ofGermany, 998 F.2d 1 (DC. Cir. 1993), the DC Circuit found that there was no need to stay proceedings in the district court once a party had properly appealed because the appeal divested the district court ofitsjurisdiction. Princz, 998 F. 2d at 1; see also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (?The ?ling of a notice of appeal is an event of jurisdictional signi?cance?it confersjurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the That divestiture lasts until the appellate court issues the mandate. See, Kusay v. United States, 62 F.3d 192, 195 (7th Cir. 1995); Zaklama v. Mount Sinai Med. Ctr, 906 F.2d 645, 649 (11th Cir. 1990). sovereign immunity further counsels against the exercise of jurisdiction, it argues, because of comity concerns. See Opp?n 5?8. arguments are not persuasive. First, reiterates arguments that its sovereignty confers immunity both from producing documents in response to the grandjury subpoena and from being held in contempt'prior to the issuance of a mandate, but this Court has already ruled that is not entitled to immunity. See Mem. Op., ECF No. 20. The forum in which can continue pressing its sovereignty arguments is a properly taken appeal. Second, while Griggs instructs that this Court does not havejurisdiction over the appealed aspects of a case until the mandate returns, Griggs does apply here. The question on appeal is immunity. The Contempt Motion raises a question separate: has complied With the Order? Of course, should prevail on appeal, there will have been no need to comply. That possibility, however, is present in every appeal and is not one that has persuaded any court that, absent a stay, a district court is without jurisdiction to enforce its orders pending appeal. The precedent is voluminous and convincing. See Horn Hardart Co. v. Nat?l Rail Passenger Corp, 843 F.2d 546, 548 (DC. Cir. 1988) (ruling that a district court did not lose jurisdiction once declaratory judgment was appealed because 28 U.S.C. 2202?s authorization of?further relief" ?carries out the principle that every court, with few exceptions, has inherent power to enforce its decrees and to make such orders as may be necessary to render them effective? (quoting Edwin Borchard, DECLARATORY JUDGMENTS 441 (2d ed. 1941)); Sergeeva v. Tripleton 1m"! Ltd, 834 F.3d 1194, 1201?02 (11th Cir. 2016) (?Absent entry of a stay on appeal?which Trident Atlanta failed to obtain here?the District Court retained jurisdiction to enforce its orders. Thus, we reject Trident Atlanta?s frivolousjurisdictional argument?); In re White-Robinson, 777 F.3d 792, 796 (5th Cir. 2015) (?nding that, unless a bankruptcy court?s ruling is stayed pending appeal, that court retains jurisdiction to engage in proceedings to enforce its own rulings ?through any appropriate means, including a civil contempt order?); Chagantz? Assocs., P. C. v. Nowotny, 470 F.3d 1215, 1223 (8th Cir. 2006) (upholding district court?s order holding corporation in civil contempt and imposing sanctions since ?district court retained jurisdiction to enforce its judgment notWithstanding appeal on the merits?); Blue Cross Blue Shield Ass ?n v. Am. Express Co, 467 F.3d 634, 638 (7th Cir. 2006) (?nding district court retained jurisdiction to hold contempt proceedings following defendant?s alleged violation of a consent decree while appeal of that decree was pending, explaining that ?one established exception to the rule against simultaneous exercise of jurisdiction is that the district court may enforce its judgment while an appeal to test thatjudgment?s validity proceeds?); Chao v. Koresko, Nos. 04-3614, 05-1440, 05- 1946, 05-2673, 2005 WL 2521886, at *5 (3d Cir. Oct. 12, 2005) (?nding that appeal did not ?disturb the District Court?s jurisdiction to enforce? its orders with civil contempt citations); Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49, 58 (lst Cir. 2004) (af?rming holding of defendant in contempt for failure to comply with writ of execution while appeal of underlying judgment was pending); Resolution Trust Corp. v. Smith, 53 F.3d 72, 76?77 (5th Cir. 1995) the judgment has been properly stayed or superseded, the district court may enforce it through contempt sanctions.? (internal quotation marks and alteration omitted?; United States v. Lawn Builders ofNew Eng, Inc, 856 F.2d 388, 394?95 (Ist Cir. 1988) (?nding district court properly rejected argument that district court lacked jurisdiction to hold party in contempt because his appeal of the order of enforcement was still pending since party had neither applied for, nor received, a stay of the district court?s enforcement order); Island Creek Coal Sales Co. v. Galnesville, 764 F.2d 437, 440 (6th Cir. 1985) (?Where, as here, the district court is attempting to supervise its judgment and enforce its order through civil contempt proceedings, pendency of appeal does not deprive it of jurisdiction for these purposes?); accord Maness v. Meyers, 419 U.S. 449,458 (1975) (?If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even ifthe order is ultimately ruled incorrect?). This principle holds when, as here, the contempt citation is issued for failure to comply with a court order requiring the production of records in response to a subpoena and the contemnor has appealed the merits of the enforcement order. See, In re Grand Jury Subpoenas Duces Tecum, 85 F.3d 372, 375?76 (8th Cir. 1996) (upholding district court?s authority to require payment of contempt fines for failing to comply with subpoenas duces tecum after respondents had noticed their appeal and a stay of the imposition of contempt sanctions pending appeal had been denied); Nat ?1 Labor Relations Bd. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987) (?nding that, despite general rule that a notice of appeal divest's the district court of its jurisdiction, the district court retains jurisdiction to ?enforce its judgment so long as the judgment has not been stayed or superseded,? and, consequently, district court was authorized to issue contempt citation to President of company that failed to comply with a subpoena to produce certain documents when president?s appeal was pending (internal quotation marks omitted) (citing Deering Milliken, Inc. v. FTC, 647 F.2d 1 124, 1 128?29 (DC. Cir. 1978)); Brown v. Braddick, 595 F.2d 961, 965 (5th Cir. 1979) (upholdingjurisdiction ofthe district court to hold civil contempt proceedings for failure to comply with subpoena while appeal ofthe district court?s judgment was pending, where defendant failed to ask the district court for a stay pending appeal and to post supersedeas bond as required by Federal Rule of Civil Procedure Morisseau v. DLA Piper, 707 F. Supp. 2d 460, 462 (S.D.N.Y. 2010) (?nding ?no inconsistency between this Court enforcing an order that remains in full force and effect notwithstanding plaintiffs appeal from that [discovery] order,? and issuing contempt citation); United States v. Schulz, No. 07-cv-0352, 2008 WL 2626567, at *11 (N.D.N.Y. Apr. 28, 2008) (holding defendants in contempt for failure to produce records as required by injunction, and rejecting as ?without merit? argument that defendants were not obligated to comply while their motion for rehearing en banc before Second Circuit was pending and ?no Mandate has been issued by the Clerk at the Second Circuit? (internal quotation marks omitted)). At least two courts have called the very argument that raises here ?frivolous.? See Sergeeva, 834 F.3d at 1201?02; In re Gushlak, No. 11-mc-218, 2012 WL 2564523, at *4 (E.D.N.Y. July 2, 2012) There is no dispute that has been in violation ofthe'Order since October 1, 2018. Given that the Court retainsjurisdiction to enforce its orders, and upon consideration of the government?s motion for civil contempt, the opposition filed by andthe arguments presented at the hearing held on October 5, 2018, it is hereby ORDERED that is found in civil contempt ofthe Court?s September 19, 2018 Order; and it is further ORDERED that is assessed a fine of$50,000I per day, payable to the United States, until such time as is willing to complete production of the subpoenaed records, provided that such daily fines shall not exceed the life ofthe term of the Although the government?s contempt motion proposes a ?ne of$10,000 per day, the government?s counsel acknowledged at the hearing that this amount may be low. Indeed, a ?ne of not more than $10,000 is the amount provided in 28 U.S.C. 1826(c) to be imposed on individuals who escape, attempt to escape, or aid others in escaping from lawful confinement. In imposing $50,000 per day, the Court balances, on the one hand, a due regard for status as an entity of a foreign sovereign deserving of international comity and, on the other hand, government?s need for prosecutorial expedience in a matter of great concern in the United States and in consideration of the sanction needed to coerce compliance. See United States v. United Mine Workers 0fAm., 330 US. 258, 304 (1947) the purpose is to make the defendant comply [the court] must then consider the character and magnitude ofthe harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired?); 6 grandjury, including extensions, before which such refusal to comply with the Court?s Order occurred;:and it is further ORDERED that the civil contempt sanctions against shall be stayed pending appeal, shall not accrue during the pendency of the appeal, and shall only begin accruing seven (7) business days after the Court of Appeals? issuance of a mandate af?rming this Court?s order, provided the following: 1. That ?les a notice of appeal by 5:00 pm. on October 9, 2018; 2.. That agrees to ?le a joint motion for an expedited brie?ng schedule in the court of appeals, pursuant to which opening brief will be ?led by no later than October 23, 2018; the government?s responsive brief will be ?led by no later than November 7, 2018; and reply brief(if any) will be ?led by no later than November 14, 2018; and 3. That preserve all information called for by the subpoena in this matter during the pendency of any appeal. It is further ORDERED that ifthe Court of Appeals were to conclude that this Court lacks jurisdiction to enter this Order at this time because the Court of Appeals has not yet issued its mandate in Case No. 18-3058 (DC. Cir.), this Order shall be deemed effective on the date that the Court of Appeals issues its mandate in that case. SO ORDERED. DATE: October 5, 2018 Beryl A. Howell Chief Judge ATTACHMENT 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) Chief Judge Beryl A. Howell Filed Under Seal MEMORANDUM AND ORDER On September 19, 2018, this Court denied Motion to Quash Grand Jury Subpoena No. 7409. See Order (Sept. 19, 2018), ECF No. 19. was given until October 1, 2018 to complete production of the subpoenaed records. 1d. October 1 passed without compliance and, on October 4, 2018, the government moved to have held in contempt for violating the September 19, 2018 Order. See Gov.?s Mot. for Contempt, ECF No. 27. On October 5, 2018, the Court granted the government?s motion to hold in contempt, see Mem. and Order (Oct. 5, 2018), ECF No. 30, and assessed a daily ?ne of $50,000 against id. at 6, which fine ?shall only begin accruing seven (7) business days after the Court oprpeals? issuance ofa mandate af?rming this Court?s order,? id. at 7. appealed. See In re Grand Jury Subpoena, No. 18-3071 (DC. Cir. 2018). After expedited brie?ng, the DC. Circuit, on December 18, 2018, issued both an abridged opinion af?rming the October 5, 2018 Order and a mandate. See Mandate, ECF No. 43; see also Judgment, ECF No. 43-1. Four days later, on December 22, 2018, asked the Supreme Court to stay this Court?s October 5, 2018 Order. See Application for a Stay, In re GrandJury Subpoena, No. 18A669 (2018). The next day, the Supreme Court stayed this Court?s 1 October 5, 2018 Order, pending a response from the government. Order (Dec. 23, 2018), In re Grand Jury Subpoena, No. 18A669. Finally, on January 8, 2019, after brie?ng on application for a stay of this Court?s October 5, 2018 Order was complete, the Supreme Court vacated the previously entered stay. Order (Jan. 8, 2019), In re Grand Jury Subpoena, No. 18A669. That same day, the DC. Circuit issued a more thorough opinion explaining the rationale for affirming this Court?s October 5, 2018 Order. See generally In re Gra'ndJury Subpoena, No. 18-3071, 2019 WL 125891 (DC. Cir. Jan. 8, 20.19). Now before this Court is Combined Motion for a Declaration that this Court?s October 5, 2018 Order is Unenforceable and that Property is Immune from Execution or Attachment and Motion for a Stay of this Court?s Contempt Order Pending the Supreme Court?s Disposition of Petition for a Writ of Certiorari Mot?), ECF No. 45. For the following reasons, motion is denied in part.1 oUr factors inform the propriety of staying a court order pending furtherjudicial review: whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.? Nken v. Holder, 556 US. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 US 770, 776 (1987)). Together, the four factors create a ?stringent requirement? that limits a party?s ability to ?obtain the extraordinary relief of a stay pending appeal.? Citizens for The Court reserves ruling on Motion for a Declaration that this Court?s October 5, 2018 Order is Unenforceable and that Property is Immune from Execution or Attachment, until brie?ng on that aspect of the motion is complete. Responsibility and Ethics in Wash. v. Fed. Election Comm 904 F.3d 1014, 1016, 1017 (DC. Cir. 2018). Here, claims to have satis?ed all four factors, thus warranting a stay of the October 5, 2018 Order. Yet, has not satis?ed any of the four. As for likelihood of success on the merits, this Court already has issued a memorandum opinion explaining that this Court hasjurisdiction over under 28 U.S-.C. 3231; that the Foreign Sovereign Immunities Act 28 U.S.C. 1602 et seq., does not immunize from this Court?s jurisdiction because, ifthe FSIA applies to criminal cases, so too do the exceptions; that is excepted from immunity because ofthe commercial?activity exception, see id. 1605(a)(2); and that the grandjury subpoena with which must comply is neither unreasonable nor oppressive. See generally Mem. Op. (Sept. 19, 2018), ECF No. 20. The DC. Circuit af?rmed on each point. See generally In re Grand Jury Subpoena, 2019 WL 125891. While motion repeats the position that the FSIA immunizes in this matter, see Mot. at 11?17, no part of motion persuades that both this Court and the DC Circuit likely erred in reaching a contrary conclusion. If, as maintains, the Supreme Court likely will reverse this Court?s order, the Supreme Court could have left in place the administrative stay that the Supreme Court entered on December 23, 2018; of course, the Supreme Court, without dissent, lifted that stay on January 8, 2019. See In re Grand Jury Subpoena, No. 18A669. As to the likelihood of irreparable harm, asserts that each day the October 5, 2018 Order remains in effect is a new blow to the dignity ofa sovereign nation. Mot. at 17. That may be true, but in passing the SIA, Congress codi?ed the ?careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions.? Rubin v. Islamic Republic oflran, 138 S. Ct. 816, 822 (2018). which is subject to the commercial- activity exception, is not suffering any dignitary harm that Congress did not account for and explicitly permit. To the extent that attributes particular harm to a monetary contempt fine, that argument falls ?at because ?there is not a smidgen of indication in the text of the FSIA that Congress intended to limit a federal court?s inherent contempt power.? Hemisphere Assocs., LLC v. Democratic Republic ofCongo, 637 F.3d 373, 378 (D.C. Cir. 2011) (citing Autotech Techs. v. Integral Research Dev., 499 F.3d 737, 744 (7th Cir. 2007)). Accordingly, ?the FSIA does not abrogate a court?s inherent power to impose contempt sanctions on a foreign sovereign.? Id. at 380; see also Chabad v. Russian Fed?n, 915 F. Supp. 2d 148, 155 (D.D.C. 2013) (granting a motion to sanction a foreign sovereign $50,000 per day). Moving to the effect of a stay on the government, argues that granting a stay will not impede any government interest because the October 5, 2018 Order is, in any event, unenforceable. Mot. at 18. Yet, position on the enforceability of the October 5, 2018 remains unresolved. Additionally, although underscores the speed at which litigation in this case has proceeded, the government issued the grandjury subpoena at the center of this case on July 11, 2018. See Mot. to Quash, Ex. A., Grand Jury Subpoena, ECF No. 3-1. Each day that refuses to comply with a subpoena that now has the imprimatur of both this Court and the DC. Circuit further delays a nearly six-month process. Staying an order expressly intended to pressure to comply with that valid subpoena only compounds the delay. Finally, according to the public?s interest in the sound application of international law militates for a stay. Mot. at 18?20. On this front, is right, and the questions of internatiOnal law raised in this case are concededly delicate. Yet, once again, by enacting the FSIA, Congress established a legal regime that balances respect for a foreign sovereign?s dignity, concerns about possible reciprocity, and the need for, in some cases, United States courts to exercise jurisdiction over a foreign sovereign. See Rubin, 138 S. Ct. at 822. For reasons already covered, see Mem. Op. (Sept. 19, 2018) and see also In re Grand Jury Subpoena, No. 183071, this case meets Congress? speci?cations for when concerns about foreign sovereignty yield to the United States? interest in the exercise of jurisdiction, and the powers inherent in thatjurisdiction. For the foregoing reasons, it is hereby ORDERED that Combined Motion for a Declaration that this Court?s October 5, 2018 Order is Unenforceable and that Property is Immune from Execution or Attachment and Motion for a Stay of this Court?s Contempt Order Pending the Supreme Court?s DiSposition of Petition for a Writ of Certiorari, ECF No. 45, is DENIED. IN PART. SO ORDERED. DATE: January 10, 2019 Beryl A. Howell Chief Judge ATTACHMENT 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) ChiefJudge Beryl A. Howell Filed Under Seal MEMORANDUM AND ORDER Oh January 8, 2019, the government requested that a status conference be scheduled, without identifying the speci?c issues requiring the Court?s involvement. See Letter (Jan. 8, 2019), ECF No. 44; see also Min. Order (Jan. 9, 2019) (granting request). The next day, filed a Combined Motion for a Declaration that this Court?s October 5, 2018 Order is Unenforceable and that Property is Immune from Execution or Attachment and Motion for a Stay ofthis Court?s Contempt Order Pending the Supreme Court?s Disposition of Petition for a Writ of Certiorari Motion?), ECF No. 45. At the status conference, held on January 10, 2019, the parties raised three issues: (1) (2) the brie?ng schedule for Motion; and (3) the date that sanctions under the Court?s October 5, 2018 Order, ECF No. 30, would begin accruing. Those three issues, as well as two other outstanding issues, are addressed in this Memorandum and Order. 1. Law Firm Request to Make a Public Statement As many members of the media have speculated, and as the parties are plainly aware, this case arises from Special Counsel Robert Mueller?s investigation into possible interference in the 1 2016 presidential election. Consequently, this case has attracted and continues to attract- inordinate media attention. See, Josh Gerstein Darren Samuelsohn, Mueller Link Seen in Mystery Grand Jury Appeal, POLITICO (Oct. 24, 2018), 8572; Katelyn Polantz, Mystery Mueller Mayhem at a Washington Court, CNN (Dec. 15, 2018), 12/ Robert Barnes, Devlin Barrett, Carol D. Leonnig, Supreme Court Rules Against Mystery Corporation from ?Country Fighting Subpoena in Mueller Investigation, WASH. POST (Jan. 8, 2019), d58c33d6c8c7_story.htm1. When the DC. Circuit issued the abridgedjudgment af?rming this Court?s October 5, 2018 Order, the judgment disclosed that the subpoena recipient is a foreign-owned corporation. See In re Grand Jury Subpoena, No. 18-3071 (DC. Cir. Dec. 18, 2018) (referring to the subpoena recipient as ?a corporation owned by Country At the January 10, 2019 status conference, counsel informed the Court that attorneys and employees at their law ?rm have received threatening messages. The government objected to request, arguing that any public comment Thus, the parties were instructed, by January 11, 2019, to submit ajoint status report proposing a written order. Min. Order (Jan. 10, 2019). Rather than submitting jointly, the parties submitted competing proposals. See Proposed Order, ECF No. 51-1,: Gov?t?s Proposed Order, ECF No. 53-1. initial prOposed order would broadly preclude either party from making ?any statement to the press other than ?No comment.? See Proposed Order. Conversely, the government proposed that the Court make a ?nding of ?a substantial likelihood that dissemination ofthe proposed disclosure would materially prejudice the due administration of justice and be adverse to interests,? Thereafter, on January l5, 2019, supplemented its prior proposal, see Supp. Proposed Order, ECF No. 55-1. The new proposed order would restrict counsel from making any statement Although counsel maintains that any limitation of its public statements violates the First Amendment, the supplemental proposed order, counsel contends, does the least harm. See Supp. to Status Report at 2?4, ECF No.55. Each party?s initial proposal is too broad. For example, proposal is limitless, omitting even any language that, at a minimum, would con?ne the Court?s order to this case. At the same time, the government?s proposal would preclude Only supplemental proposal matches the needs of this case. The Court?s order must be limited so as to enforce only the limited measure of secrecy needed to ensure the fair administration of justice and the continuing requirement of grand jury secrecy. Therefore, as directed at the status conference, counsel is ordered not to make any public statement or statement to the press beyond the public information about the matter reflected in the public versions ofthe decisions of the DC. Circuit, unless otherwise ordered by a court. 2. Brie?ng Schedule an CT Motion The second issue raised at the January 10, 2019 status conference and addressed separately in the parties? post-conference submissions is the briefing schedule for Motion, insofar as seeks an order declaring the Court?s October 5, 2018 Order unenforceable. While the Court issued a brie?ng schedule, see Min. Order (Jan. 11, 2019), that order merits further explanation. The parties were unable to reach an agreement about a schedule to govern briefing for Motion. noting that this matter has been litigated expeditiously at every otherjuncture and citing the unfairness ofthe government reserving, on the one hand, the right to request escalation of the contempt fines and, on the other hand, resisting an expedited brie?ng schedule, asked that the government be ordered to respond to Motion by January 14, 2019, with reply due January 16, 2019. See Status Report at 1?2, ECF No. 51. The government, for its part, noting the need to consult with other government components before submitting a response during a period of a partial government shutdown, asked to have until January 23, 2019 to respond to Motion, in effect applying this Court?s default rule that parties in criminal matters have 14 days to respond to a motion. See Gov?t?s Status Report at 2, ECF No. 53 (citing Local Criminal Rule Neither party?s proposed schedule was adopted; instead, the scheduling order provides the government until January 18, 2019 to respond to Motion and until January 22, 2019 to reply. See Min. Order (Jan. 11, 2019). To date, the government has, as underscores, pushed for prompt resolution of legal issues raised in this case, and the need for expeditious resolution of all contested legal issues arising from this grand jury remains pressing, not only because ofthe issues at stake but also Accordingly, the scheduling order already entered affords the government adequate time for the necessary consultations without permitting needless delay during a time when is subject to the accrual of signi?cant contempt ?nes, which the government declined to agree not to enforce during the pendency of Motion. Status Report at 2. 3. Accrual of the Contempt Fines Third, at the January 10, 2019 status conference, the Court inquired of the parties when each side understood $50,000 daily ?ne to begin accruing, in accordance with the Court?s October 5, 2018 Order. To recap the relevant background, on October 5, 2018, the Court granted the government?s motion to hold in contempt for violating this Court?s September 19, 2018 Order, see Mem. and Order (Oct. 5, 2018), ECF No. 30, and assessed a daily ?ne of $50,000 against id. at 6, which ?ne ?shall only begin accruing seven (7) business days after the Court of Appeals? issuance of a mandate af?rming this Court?s order,? id. at 7. appealed but lost. See In re Grand Jury Subpoena, No. 18-3071 (DC. Cir. Dec. 18, 2018). The DC. Circuit af?rmed the October 5, 2018 Order and issued the mandate on December 18, 2018. See Mandate, ECF No. 43. After three business days had elapsed from the issuance of the mandate, the Supreme Court entered an order that stayed ?the order of the United States District Court for the District of Columbia holding the applicant in contempt, including- the accrual of monetary penalties.? Order (Dec. 23, 2018), In re Grand Jury Subpoena, No. 18A669. The Supreme Court?s stay was then lifted on January 8, 2019. Order (Jan. 8, 2019), In re Grand Jury Subpoena, No. 18A669. At the status conference, the parties agreed that ?nes started accruing on January 9, 2019, the day after the Supreme Court stay was lifted. Status Conf. Tr. (Jan. 10, 2019) at 1921?6, 21 1. -By that time, more than seven business days had passed from the issuance ofthe D.C. Circuit?s mandate. The parties? understanding ofthe accrual date differed from the Court?s. Thus, the Court asked the parties to put their understanding of the accrual date in writing. Id. at 2229?18; see also Min. Order (Jan. 10, 2019). Following the status conference, the government held to the same position, see Gov?t?s Status Report at 3?5, but took a new stance, see Status Report at 2?3. Led by the Court?s understanding, now contends that fines start accruing today, January 15, 2019. To reach that conclusion, counts three business days?December 19, 20, and 21, 2018? elapsing between the DC. Circuit?s mandate and the Supreme Court?s stay. The Supreme Court lifted the stay on January 8, 2019, meaning the next four business days were January 9, 10, 11, and 14, 2019. Thus, which still has not complied with this Court?s September 19,2018 Order, started amassing daily $50,000 ?nes as oftoday, January 15, 2019. The Court agrees with The Supreme Court?s stay expressly references the elements or this Court?s October 5, 2018 Order that held in contempt and that imposed, as a sanction fOr contempt, monetary ?nes, but does not allude to the portion ofthe same order that stayed the effective date until seven business days after the DC. Circuit issued the mandate. Yet, the Supreme Court?s order does not communicate any intention to divvy up the 'parts ofthis Court?s October S, 2018 Order to which the Supreme Court?s stay applies. Rather, the soundest reading of the Supreme Court?s stay is that it delays in all respects the effect of this Court?s October 5, 2018, tolling this Court?s seven-business day stay. To the extent that the Supreme Court?s order is ambiguous as to whether the Supreme Court?s stay tolls all aspects of this Court?s stay, the ambiguity is construed in favor of notwithstanding that is subject only to civil contempt sanctions. Remaining Outstanding Issues Two issues remain outstanding. First, seeks to stay accrual of the $50,000 daily contempt ?nes until resolution ofthe pending motion for a declaration that the contempt ?nes are not enforceable. See Motion for a Stay of the Contempt Fines? Accrual Until this Court Rules on Pending Motion for a Declaration Stay Motion?), ECF No. 56. Stay Motion reveals confusion about the operation of the Foreign Sovereign Immunities Act, 28 U.S.C. 1602 et seq. No matter how many briefs and motions ?les proclaiming immunity from the exercise ofthis Court?sjurisdiction, the Court?s authority to impose contempt sanctions on and thus for the sanctions to accrue, is secure. See generally Mem. Op. (Sept. 19, 2018), ECF No. 20; In re GrandJury Subpoena, No. 18-3071, 2019 WL 125891 (DC. Cir. Jan. 8, 2019). Nonetheless, seeks to stay accrual ofthe properly entered contempt sanction because, in view, the contempt sanction is unenforceable. Yet, as the DC Circuit has said, and already repeated once in this case, the power to impose contempt sanctions against a foreign sovereign and the power to enforce any monetary sanctions are distinct. In re Grand Jury Subpoena, 2019 WL . 125 891, at *7 (?We stick to that practice today, meaning the form ofthe district court?s contempt order was proper. Whether and how that order can be enforced by execution is a question for a later FG Hemisphere Assocs., LLC v. Democratic Republic ofCongo, 637 F.3d 373, 377 (DC. Cir. 2011) (?Hemisphere?s contention that whether the court can enforce its contempt sanction?i's irrelevant to the availability of a contempt order is consistent with the statutory scheme?). Thus, even if ultimately prevails on the argument that the ?nes are unenforceable, a question which has not yet been resolved in this matter, the ?nes are properly accruing. Therefore, for the same reasons articulated in the Court?s last opinion denying request for a stay of the Court?s October 5, 2018 Order, see Mem. and Order (Jan. 10, 2019), ECF No. 48, newest motion for a stay also is denied. Second, the Court?s September 19, 2018 Order, which accompanied a Memorandum Opinion explaining the reasons for denying Motion to Quash, ordered the government to ?submit a report advising the Court whether any portions of the accompanying Memorandum Opinion may be unsealed? no later than the earlier of compliance with the subpoena or three months from that order. See Order (Sept. 19, 2018), ECF No. 19. Three months now have passed. Thus, consistent with the September 19, 2018 Order, the government must submit a report advising which portions ofthe Court?s September 19, 2018 Memorandum Opinion may be unsealed, particularly in light ofthe public versions ofthe D.C. Circuit?sjudgment and opinions in this matter. For the foregoing reasons, it is hereby ORDERED that, upon consideration of Proposed Order, ECF No. 51-1, the Government?s Proposed Order, ECF No. 53-1, and Supplemental Proposed Order, ECF No. 55-1, counsel shall refrain from making any public statement or statement to the press beyond the public information about the matter reflected in the public versions ofthe decisions ofthe DC. Circuit, unless otherwise ordered by a court; and it is further ORDERED that the $50,000 daily fine ordered by the Court?s October 5, 2018 Order begins accruing On January 15, 2019; and it is further ORDERED that Motion for a Stay of the Contempt Fines? Accrual Until this Court Rules on Pending Motion for a Declarationfurther ORDERED that, consistent with the Court?s September 19, 2018 Order, ECF No. 19, the government, by Tuesday, January 22, 2019, shall submit a report advising the Court whether any portions of the September 19, 2018 Memorandum Opinion, ECF No. 20, may be unsealed. SO ORDERED. Beryl A. Howell Chief Judge DATE: January 15, 2019 ATTACHMENT 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) Chief Judge Beryl A. Howell Filed Under Seal MEMORANDUM OPINION has been in civil contempt for nearly four months for failing to comply with a September 19, 2018 Order ofthis Court to produce, by October 1,2018, records responsive to a grand jury subpoena issued on July 1 1, 2018, with a return date, after extensions, ofAugust 16,2018. See Order (Sept. 19, 2018) (?Production Order?), ECF No. 19; Mem. Order (Oct. 5, 2018) (?Contempt Order?), ECF No. 30. The Contempt Order imposed a ?ne of $50,000 per day against which ?ne was temporarily stayed while appealed to the DC Circuit, and then for seven business days after the issuance ofthe mandate. Contempt Order at 6?7. Accrual of the contempt sanctions was further delayed during the span of a Supreme Court administrative stay. Order (Dec. 23, 2018), In re Grand Jury Subpoena, . Supreme Court No. 18A669. After losing its appeal, see In re Grand Jury Subpoena (?Grand Jury No. 18-3071, 2018 WL 6720714 (DC. Cir. Dec. 18, 2018); In re Grand Jury Subpoena (?Grand Jury No. 18-3071, 2019 WL 125891 (DC. Cir. Jan. 8, 2019), and after vacatur ofthe Supreme Court?s administrative stay, see Order (Jan. 8, 2019), In re Grand Jury Subpoena, Supreme Court No. 18A669, has been accruing daily $50,000 ?nes since January 15, 2019, see Mem. Order (Jan. 15, 2019), ECF No. 57 (clarifying date that contempt ?nes started accruing, consistent with view of accrual date). As of January 24, 2019, fine is $500,000. NOW, pending before the Court is motion for a judicial declaration that the Contempt Order is unenforceable and that the government cannot attach or execute on any property. See Mot. Decl. Ct.?s Oct. 5, 2018 Order Unenforceable Property Immune Mot?), ECF No. 45.1 The briefing on this motion was completed on January 22, 2019, with the government opposing the motion as both premature and without merit. See Gov?t?s Opp?n Mot. Decl. Ct.?s Oct. 5, 2018 Order Unenforceable Property Immune (?Gov?t?s Opp?n?), ECF No. 58. For the reasons explained in more detail below, the Court agrees that motion is premature. I. REQUEST FOR ENFORCEABILITY RULING AMOUNTS TO A REQUEST FOR AN IMPERMISSIBLE ADVISORY OPINION Generally, courts do not issue advisory opinions. Flast v. Cohen, 392 US. 83, 96?97 (1968); see also Grand Jury II, 2019 WL 125891, at *8 federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of the litigants in the case before them.? (quoting Pret?ser v. Newkirk, 422 US. 395, 401 ?[T]he rule against advisory opinions . . . recognizes that such suits often ?are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced Situation motion also sought further stay of the Contempt Order pending the Supreme Court?s disposition of pending petition for a writ of certiorari. That motion was denied orally at a status conference on January 10, 2019, see Status Conf. Tr. (Jan. 10,2019) at 24:20?24, ECF No. 52, with a fuller explanation provided in a Memorandum and Order, see Mem. Order (Jan. 10, 2019), ECF No. 48. persisted in seeking a stay of any penalty accruing from its contempt. See Mot. Stay Contempt Fines? Accrual Until Ct. Rules on Mot. Decl., ECF No. 56. That duplicative motion also was denied. Mem. Order (Jan. 15, 2019). embracing con?icting and demanding interests.?? Flast, 392 U.S. at 96?97 (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)). Indeed, claim is not ripe for adjudication if it rests upon ?contingent future events that may not occur as anticipated, or indeed may not occur at all.?? Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co, 473 U.S. 568, 580?81 (1985)). The government underscores that it has not yet sought any judgment reducing the contempt sanctions to a sum certain, nor tried to enforce any such judgment. Gov?t?s Opp?n at 8. Even if is correct that the government has not initiated enforcement proceeding as ?a stall. tactic,? intended ?to postpone this Court?s reaching the enforceability question,? Reply Supp. Mot. Decl. Ct.?s Oct. 5, 2018 Order Unenforceable Property Immune Reply?) at 2, ECF No. 59, that does not make questions of enforceability ripe. Moreover, leveraging the growing fine to increase pressure on to comply with the subpoena is perfectly lawful, and the very reason for civil contempt sanctions. See Turner v. Rogers, 564 U.S. 431, 441 (2011) (?Civil contempt differs from criminal contempt in that it seeks only to ?coerc[e] the defendant to do? what a court had previously ordered him to do.? (quoting Gompers v. Bucks Stove Range Co, 221 U.S. 418, 422 Int?! Union v. Bagwell, 512 U.S. 821, 827 (1994) (civil contempt sanctions are ?penalties designed to compel future compliance with a court order? and ?are considered to be coercive?). vigorous effort to deflate that coercive pressure, including asking the Supreme Court to resolve whether the Foreign Sovereign Immunities Act 28 U.S.C. 1602 et seq., permits ?enforc[ing] contempt sanctions (monetary or otherwise) against a foreign state,? see Mot, Ex. A, Sealed Petition for a Writ of Certiorari, at ii, is misdirected. Although the Contempt Order imposes fines, the government, as yet, has taken no steps to execute on, or enforce collection of, the accrued fines. Until such steps are taken, enforceability challenge is not ripe for resolution. Despite this legal and factual backdrop, asks the Court to opine on the legality of hypothetical conduct: the government?s non-existent effort to enforce a non-existent judgment reflecting the sum certain of accrued fines. Irrespective of whether the FSIA applies to, and provides blanket immunity from, any criminal matters, as argues, see Reply at 15?20, or is limited to civil matters, as the government argues, see Gov?t?s Opp?n 17?20, will have an opportunity to challenge any enforcement effort when that effort transpires. If the SIA applies here, as the Court assumes it does, the government must, before attaching or executing against any property, obtain ajudgment for accrued sanctions and then an order permitting attachment or execution, consistent with 28 U.S.C. 1610(0). Only after the government has thatjudgment and order will it be able to take the necessary steps to satisfy the judgment with specific property. At the point the government seeks a section 1610(c) order, the enforceability question may be ripe. Sure enough, anotherjudge on this court, while deciding whether to enter a judgment for accrued sanctions, a step at which this case has not yet arrived, ruled that ?questions related to enforcement? were ?not ripe for adjudication.? Agudas Chasidez' Chabad of United States v. Russian Fed 128 F. Supp. 3d 242, 244 (BBC. 2015). As in Agudas Chasidei, ?concerns related to such enforcement are premature until such time as [the government] has identified property to attach and execute, provided notice to defendants of such attachment and execution, and given defendants ?reasonable ti'rne? to respond.? Id. at 245; accord Walters v. Indus. Commer. Bank of China, Ltd, 65] F.3d 280, 291, 297 (2d Cir. 2011) (?[Section] 1610(0) not only ensures that no execution upon sovereign property can take place without notice to the sovereign, but it also requires a priorjudicial determination that the execution is warranted under one of the 1610(a) or exceptions and with respect to speci?cally identified property,? and thus ?clearly signals that execution depends on a judicial determination that the property at issue falls within one of the exceptions to immunity set forth in those subsections?). Thus, granting requested relief?a declaration that the Contempt Order is unenforceable?would do nothing more than repeat what the FSIA explicitly mandates: no prOperty of a foreign sovereign shall be attached or executed absent a court order so allowing. In this way, focus on the enforceability of the Contempt Order is misplaced. Absent any such collection effort, challenge is premature. Assuming the government is right and the FSIA is inapplicable to criminal matters, this raises whether the FSIA nonetheless applies to a civil action to enforce a judgment against property. Again, this is a question would have a chance to present when confronted with a government effort to satisfy any actually issuedjudgment, a proceeding that remains on the horizon. In any event, the government cannot simply take the Contempt Order to a court or sheriff and demand that a lien be placed on property. Ajudge must first enter ajudgment for a sum certain and an order authorizing that conduct. At that point, objection that the FSIA prohibits enforcing a judgment against may be ripe for review. understandably, is trying to exhaust every conceivable method of expressing doubt about its amenability to contempt sanctions. The pending motion adds to that effort, waging a collateral attack on the Contempt Order by raising unrelated doubts about enforceability. ?Yet, as the DC. Circuit has said, and already repeated once in this case, the power to impose contempt sanctions against a foreign sovereign and the power to enforce any monetary sanctions are distinct.? Mem. Order (Jan. 15, 2019) at 9 (citing Grand Jury II, 2019 WL 125891, at FG Hemisphere Assocs., LLC v. Democratic Republic ofCongo, 637 F.3d 373, 377 (DC. Cir. 2011)). must recognize that, in both this Court and in the DC. Circuit, this case has progressed beyond the point at which uncertainty about the legality of the Contempt. Order exists. Should the government try to collect on the ?nes accruing from continuing noncompliance with the Production Order and the Contempt Order, new legal issues might arise. Even if were able to forecast those precise issues, the Court, at best, would be forced to resolve enforcement questions based on a hypothetical sequence of events that might never actually come to pass. The current posture ofthis litigation makes resolution of any possible legal issues that may materialize an obvious, and impermissible, advisory Opinion. II. REQUEST FOR ENFORCEABILITY DECLARATION MUST BE DENIED ON PRUDENTIAL GROUNDS The closest parallel to what seeks is relief under the Declaratory Judgment Act, 28 U.S.C. 2201, ?which exists precisely to ensure litigants do not need to wait until Government enforcement before clarifying or vindicating their rights.? Reply at 5. concedes that declaratory relief may be proper only when, at a minimum, the circumstances ?show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratoryjudgment.? Id. at 4 (quoting MedIrnmune, Inc. v. Genetech, Inc, 549 US. 118, 127 (2007)). Yet, any request for declaratory relief must be justiciable ?as a constitutional and prudential matter.? Navegar, Inc. v. United States, 103 F.3d 994, 998 (DC Cir. 1997); see also Poe v. Ullman, 367 U.S. 497, 508?09 (1961) (?Justiciability is of course not a legal concept with a ?xed content or susceptible of scienti?c verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought?). Thus, even when a Court! may grant declaratory relief, declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.? Pub. A?airs Assocs., Inc. v. Rickover, 369 U.S. 11 1, 1 12 (1962) (internal quotations omitted); see also Wilton v. Seven Falls 515 U.S. 277, 286 (1995) (?Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants?); Morgan Drexen, Inc. v. Consumer in. Prat. Bureau, 785 F.3d 684, 694 (DC. Cir. 2015) (?Although ?federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred . . . [t]hat principle does not eliminate . . . the federal courts? discretion in determining whether to grant certain types of relief.? (quoting New Orleans Pub. Serv., Inc. v. Council ofNew Orleans, 491 U.S. 350, 358?59 (1989)? (alternations in original). Discretion to award declaratory relief lies, in the first instance, with district courts ?because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp.? Wilton, 515 U.S. at 289. The Supreme Court has provided general guidance that ?the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power.? Id. at 287 (internal quotations omitted). Which is to say that the Court?s discretion is guided by ?considerations of practicality and wisejudicial administration.? Id. at 288. More particular guidance has been provided by the DC. Circuit, in Hanes Corporation v. Millard, 531 F.2d 585 (D.C. Cir. 1976), which ?adopted a non-exclusive list of ?factors relevant to the propriety of granting a declaratory judgment.? Morgan Drexen, 785 F.3d at 696 (quoting Hanes, 531 F.2d at 591 Those prudential factors informing when granting declaratory relief might be practical and wise are: ?whether it would finally settle the controversy between the parties; whether other remedies are available or other proceedings pending; the convenience of the parties; the equity of the conduct ofthe declaratoryjudgment plaintiff; prevention of procedural fencing; the state of the record; the degree of adverseness between the parties; and the public importance ofthe question to be decided.? Id. (quoting Hanes, 531 F.2d at 591 The factors do not supply a test, but rather help the analysis ?focus on the usefulness of declaratory judgment, the role of such relief in ending the dispute between the parties, and the incentives for parties? behavior.? Id. at 697. Here, three reasons, grounded in the Hanes factors, counsel against granting requested declaratory relief: the declaratory relief requested would not ?finally settle the controversy between the parties?; ?the equity of conduct? counsels against granting declaratory relief; and ?the state of the record? is underdeveloped. Id. Those three reasOns are addressed seriatz'm. A. Declaratory Relief Would Not Settle the Enforceabilt'ty Question The Court?s analysis in Part 1, supra, for why an opinion about enforceability would, at this juncture, be no more than an advisory opinion also explains why granting the requested declaratory relief would not settle the parties? controversy. The Contempt Order, with or without the requested declaration, is not self-effectuating. For the government to attach or execute any of property, the government must ?rst convert the sanctions that have accrued under the Contempt Order into a sum certain judgment and obtain an order permitting action against prOperty. Thus, to say that the Contempt Order, standing alone, is unenforceable would be no more than a truism. B. Equity Militates Against Granting Declaratory Relief As already noted, at this point, both and the government are maneuvering to gain the more advantageous position. Facing the pressure of mounting ?nes, motion asks the Court to declare that no matter how high sanctions grow, never will be accountable to pay the ?nes, thereby removing the government?s leverage on to comply with the Production Order. The government, on the other hand, wants to maintain the threat of eventually enforcing the ?nes that grow every day flouts the Production Order. The DC. Circuit has made clear that ?prevention of procedural fencing? and ?incentives for parties? behavior,? as re?ected in the parties? positions here, are among the signi?cant considerations for the propriety of declaratory relief. Morgan Drexen, 785 F.3d at? 696?97 (citing Hanes, 531 F.2d at 591 While desire to expedite ajudicial decision on the enforceability of any judgment for accrued ?nes is understandable, the justiciability of this question at thisjuncture is not legally supportable under DC. Circuit precedent. The DC. Circuit has held that credible threat of imminent prosecution? can provide ?the foundation for justiciability as a constitutional and prudential matter, and the Declaratory Judgment Act . . . provides the mechanism for seeking preenforcement review.? Navegar, 103 F.3d at 998. echoes this language, arguing that ?[t]he threat of enforcement here is actual and imminent,? Reply at 6 (citing Abbott Labs. v. Gardner, 387 US. 136, 153?54 (1967)), such that meets the Article standing requirements needed to seek declaratory relief. Despite arguments about Article standing, 9 the problem here is not constitutional, but rather prudential. Navegar, 103 F.3d at 998 (recognizing that awarding declaratory relief depends on constitutional and prudential limits); see also Morgan Drexen, 785 F.3d at 694 (same).2 Prudentially, declaratory relief is a proper remedy when ?absent the availability of preenforcement review, [a party] must either forgo possibly lawful activity because of her well- founded fear of prosecution, or willfully violate the Navegar, 103 F.3d at 998; see also Babbitt v. United Farm Workers, 442 US. 289, 298 (1979) (?When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proScribed by a statute, and there exists a credible threat of prosecution thereunder, he ?should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.?? (quoting Doe v. Bolton, 410 US. 179, 188 Seegars v. Gonzales, 396 F.3d 1248, 1253 (DC. Cir. 2005) (for challenges to agency regulation ?an affected party may generally secure review before enforcement so long as the issues are ?t forjudicial review without further factual development and denial of immediate review would inflict a hardship on the challenger? typically in the form of its being forced either to expend non-reCoverable resources in complying with a potentially invalid regulation or to risk subjection to costly enforcement processes?). A party?s choice between costly compliance and possibly violating a valid law has justi?ed declaratory relief when, for example, a ?challenged statute threatened a taking for which the plaintiffs would never be compensated,? Navegar, 103 F.3d at 999 (citing Reg ?l Rail Reorg. Act 2 Since the DC. Circuit decided Navegar, which supplies this jurisdiction?s standard for the degree of imminence needed for a party to have constitutional standing to seek preenforcement declaratory relief, the decision has been questioned for setting too high a bar. See, 0rd v. District ofColumbia, 587 F.3d 1136, 1146 (DC. Cir. 2009) (Brown, J., dissenting) 1 agree Ord has standing to bring his claim for damages under 42 U.S.C. 1983, and agree his claims are not so insubstantial as to deprive the federal courts ofjurisdiction over them, I do not think we can or should strain to ?t this case within Navegar?s standard . . . . I do think the en banc court can and should rehear this appeal sua sponte and overrule Seegars v. Gonzales, 396 .3d 1248, 1253 (DC. Cir. 2005) (?We cannot help noting that Navegar's analysis is in sharp tension with standard rules governing preenforcement challenges to agency regulations . . . 10 Cases, 419 U.S. 102, 122?25 (1974)); ?where boat owners were effectively required, by a soon to be implemented state law, to install new sewage pumping facilities on their boats,? id. (citing Lake Carriers?Ass ?11 v. MacMallart, 406 U.S. 498, 506?08 (1972)); ?Where the alternative to risking criminal and civil penalties was far-ranging and expensive relabeling of drug products,? id. (citing Abbott, 387 U.S. at 152?53); and when an entity questioned the Department of Transportation?sjurisdiction to impose liability under a challenged rule, Sabre, Inc. v. Dep?t of Tramp, 429 F.3d 1113, ll 19?21 (DC. Cir. 2005). Further, the case for preenforcement review is especially compelling ?where plaintiffs seek to engage in activities possibly protected by the First Amendment.? Seegars, 396 F.3d at 1252; see also Act Now to Stop War End Racism Coal. v. District ofColumbia, 589 F.3d 433, 435?36 (DC. Cir. 2009) (reversing dismissal of plaintiff?s preenforcement action seeking declaration that regulation, which limited hanging of noncommercial posters, violated the First Amendment because plaintiff had made a credible allegation regarding the regulation chilling First Amendment rights). Nothing comparable to these examples is at play here. is not confronting an uncertain legal landscape that impedes potentially lawful conduct. To the contrary, the Production Order and the Contempt Order, the latter of which hopes to render toothless, have been upheld on appeal. Grand Jury II, 2019 WL 125891. Thus, need not forgo possibly lawful conduct, the hardship warranting preenforcement review in every other instance. Rather, simply wants assurances that continued violation ofthe lawful Contempt Order may be accomplished with impunity. At this stage, relieving from the pressure to comply would be imprudent. Pressure to induce compliance is the very purpose of civil contempt sanctions. As discussed in Section 1, supra, the Supreme Court has instructed that civil contempt sanctions are ?penalties ll designed to compel future compliance with a court order? and ?are considered to be coercive.? Bagwell, 512 US. at 827; see also Turner, 564 US. at 441 (?Civil contempt differs from criminal contempt in that it seeks only to ?coerc[e] the defendant to do? what a court had previously ordered him to do.? (quoting Gompers, 221 US. at 422)). Letting out from under the prospect of paying a lawfully imposed fine would defeat the reason to have entered the Contempt Order in the ?rst place. reiterates the refrain that when a contemnor is a foreign sovereign, the imposition of contempt ?nes ?offends a foreign state?s dignity and qualifies as irreparable injury.? Reply at 4 (emphasis in original). To repeat: passing the FSIA, Congress codified the ?careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions.?3 Mem. Order (Jan. 10, 2019) at 3?4, ECF No. 48 (quoting Rubin v. Islamic Republic ofIran, 138 S. Ct. 816, 822 (2018)). which is subject to the commercial? activity exception, is not suffering any dignitary harm that Congress did not account for and explicitly permitGrandJury Subpoena, No. 18-3068 (D.C. Cir. Oct. 3, 2018) (ruling that In re Papanderou, 139 F.3d 247 (D.C. Cir. 1998) and oremost-McKesson, Inc. v. Islamic Republic 0fIran, 905 F. 2d 438 (D.C. Cir. 1990), cases referenced by for its dignitary harm argument, see Reply at 4, did not permit to skirt the normal burdens of litigation). Perhaps if doubt remained about the propriety of imposing contempt sanctions or obligation to pay the growing fines, equity might warrant expediting resolution of enfOrceability questions. Yet, no matter how often belabors the point, see Mot. at 6 (?None of the exceptions authorizes contempt sanctions against 12 a foreign state?); id. at 7 (?Tracking the plain language, the Fifth Circuit held . . . that the FSIA categorically prohibits contempt sanctions against a foreign state?); Reply at 7 reasonably believes that, under the FSIA and Supreme Court precedent, it is not required to pay any monetary sanctions?); Status Conf. Tr. (Jan. 10, 2019) at 22:21?23, ECF No. 52 (?Our argument was and is, and will remain, that this Court, and every American court, lack subject matterjurisdiction over in this criminal proceeding?); Mot. Stay Contempt Fines? Accrual at 1, ECF N0. 56 FSIA does not authorize contempt sanctions against a foreign state . . . the Contempt Order?and the attendant pressure?is proper, see generally GrandJury I, 2018 WL 6720714; Grand Jury II, 2019 WL 125891. wants to stave off enforcement of any hypothetical judgment. Of course, has an easier way out from under the threat of enforcement: comply. At this point, short-circuiting the ordinary legal process just to offer a salve to a party openly defying orders approved by the DC. Circuit, and which this country?s highest court refused to stay, undercuts the Court?s tools for ensuring compliance with a lawful order. Nothing about that option is practical or wise. C. Enforcement Questions Are Not Clearly Presented Finally, argues that leaping ahead is justified because the FSIA affords a foreign sovereign blanket immunity from contempt sanctions. Mot. at 9; Reply at 9?13. Thus, according to whether decided now or later, the government cannot attach or execute on property and waiting to make that decisionjust prolongs the inevitable. Even assuming that the FSIA applies in this matter, the facts that ultimately will inform enforceability are underdeveloped. Under the FSIA, ?the property in the United States ofa foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 161 1 of this 13 chapter.? 28 U.S.C. 1609. As this text makes clear, a foreign state?s property immunity has exceptions. To be sure, those exceptions are more narrowly drawn than the exceptions to jurisdictional immunity, Autotech Techs. LP v. Integral Research Dev. Corp, 499 F.3d 737, 749. (7th Cir. 2007), with the consequence that, in some cases, the FSIA confers rights that have no enforceable remedy, see Hemisphere, 637 F.3d at 378 (?The FSIA is a rather unusual statute that explicitly contemplates that a court may have jurisdiction over an action against a foreign state and yet be unable to enforce itsjudgment unless the foreign state holds certain kinds of property subject to execution?); De Lerelier 12. Republic ofChile, 748 F.2d 790, 798 (2d Cir. 1984) (?The Act?s history and the contemporaneous passage of similar European legislation strongly support the conclusion that under the circumstances at issue in this case Congress did in fact create a right without a remedy?). Too much is still uncertain for the Court to determine whether the government?s enforcement efforts will satisfy one of section 1610?s exceptions. Indeed, at this point, what property the government might target to satisfy anyjudgment is unknown, and identification of that property is critical to evaluating the propriety of any enforcement effort. See Walters, 651 F.3d at 291 1610(0) . . . requires a priorjudicial determination that the execution is warranted under one ofthe 1610(a) or exceptions and with respect to specifically identified property?); Agadas Chasz'dez', 128 F. Supp. 3d at 245 related to such enforcement are premature until such time as [the government] has identi?ed property to attach and execute, provided notice to defendants of such attachment and execution, and given defendants ?rea?sonable time? to respond?). The government speculates about different methods of enforcing the Contempt Order, including Gov?t?s Opp?n at 9, or seeking criminal sanctions, id. at 9 n.4. While rejects the viability of the government?s 14 alternatives, Reply at 7?8, the uncertainty of what is to come exhibits the tenuousness of resolving enforcement questions now. Given that the nature of any government enforcement effort is still unknown, whether an exception provided in section 1610 may apply remains unknowable. Until the government takes affirmative steps to enforce a judgment against property, the Court?s ability tojudge any such effort against section 1610?s exceptions is hamstrung. Despite all that hinges on how the government tries to enforce a hypotheticaljudgment, posits that this is a case with no enforceable remedy and, further, that the Court already can be certain of this point. As support, notes that ?[n]one of the exceptions authorizes contempt sanctions against a foreign state,? Mot. at 6, leading to the conclusion that ?foreign states enjoy absolute immunity from enforcement [of contempt sanctions],? id. at 9. argument regarding the lack of any exception in section 1610 specifically authorizing contempt sanctions is unavailing. Section 1610?s exceptions are written to depend on the nature of the property that a party seeks to attach and the reason that the foreign sovereign is not immune fromjurisdiction. See 28 U.S.C. 1610(a), Assuming that the government?s collection of the accrued ?nes will turn on application of 28 U.S.C. l6lO(b)(2), as the government asserts as an alternative argument, declaratory relief still? is not proper. This FSIA provision creates an exception from immunity for ?any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States . . . upon ajudgment entered by a court of the United States . . . if the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605(a)(2), (3), or (5) or 1605(b) ofthis chapter, regardless of whether the property is or was involved in the act upon which the claim is based.? 2'8 U.S.C. 15 1610(b)(2). theorizes that section 1610(b)(2) will never be available to the government because ?there is no ?claim? in this case?and certainly no claim giving rise to this Court?s contempt order,? Mot. at 7. categorical argument is unconvincing. At the core of argument is that a ?claim? means demand for money, property, or a legal remedy to which one asserts a right; especially, the part of a complaint in a civil action specifying what relief the plaintiff asks for.? Mot. at 7; see also Reply at 9?10. In' View, ?claim? necessarily requires a ?civil claim for relief" and precludes enforcing contempt sanctions. Reply at 1 l. The government does not challenge that de?nition, see Gov?t?s Opp?n at 12, but argues that section 1610(b)(2) would not categorically prohibit enforcing ajudgment that reduced the amount that owes under the Contempt Order to a sum certain. If the government eventually obtains ajudgment and then an order, pursuant to 28 U.S.C. 1610(c), authorizing the attachment or execution of certain property, the government has a ?claim,? reflected in thejudgment, that owes, but has nOt paid, ?nes under the civil Contempt Order, as well as a ?claim? demanding satisfaction of the moneyjudgment through a writ of execution or attachment. The Contempt Order, of course, is derivative of the Production Order, to which has no immunity because of 28 U.S.C. 1605(a)(2). See Grand Jury H, 2019 WL 125891, at Therefore, at first blush, even accepting the sequence of events that anticipates, the government would have a ?claim,? as contemplated under 28 U.S.C. 1610(b)(2). Finally, to cut off possible deference to the government?s position on enforceability, cites earlier cases in which the government argued against enforcement of 16 monetary sanctions. Mot. at 9?1 1; Reply at 13?15. Whether the government has taken inconsistent positions about enforceability is entirely beside the point because ?[a]lthough the views of the United States on the meaning of FSIA ?are of considerable interest . . . they merit no special deference.? FG Hemisphere, 637 F.3d at 379 n.2 (quoting Republic ofAustrz'a v. Altmann, 541 US. 677, 701 (2004)). Still, because has levied accusations of inconsistency against the government, the speciousness of this aspect of argument warrants brief mention. The government distinguishes the cases cited by as instances in which the government argued against imposition of sanctions under the FSIA and clarifies that the sanctions in those cases were sought against a foreign state, rather than, as here, against an agent or instrumentality ofthe foreign state. Gov?t?s Opp?n at 15?17. The government?s distinction accurately captures differences in cited cases. See, e. Brief for the United States of America as Amicus Curiae in Support of Partial Reversal (?Servaas Brief?) at 18?19, Servants Inc. v. Mills, 661 F. App?x 7 (2d Cir. 2016) (No. 14-385) (arguing that 28 U.S.C. 1610(a) did not permit enforcing sanctions against Iraq); Brief ofthe United States as Amicus Curiae in Support of Appellant Hemisphere Brief?) at 7?14, FG Hemisphere, 637 F.3d 373 (No. 10-7046) (arguing that 28 U.S.C. 1610(a) did not permit enforcing sanctions against Congo); Brief of the United States as Amicus Curiae in Support of Defendant?Appellant Cap Brief?) at 5?9, Af-Cap, Inc. v. Republic ofCongo, 462 F.3d 417 (5th Cir. 2006) (No. 05- 51168) (same). continues to press its argument, however, branding the distinction between a foreign state and the agent or instrumentality of a foreign state as ?contrived.? Reply at 14. Contrary to view, that distinction is made in the text 17 ofthe FSIA and, thus, is signi?cant. Compare 28 U.S.C. 1610(a) (exceptions to immunity for the property of ?a foreign state?) with id. 1610(b) (exceptions to immunity for the property of ?an agency or instrumentality of a foreign state?). further contends that, in any event, amounts to a foreign state, Reply at 14, but this characterization is contrary to prior representations. See Ltr., dated July 26, 2018 at 1?2, ECF No. 3-2 Finally, argues that, as to the government?s alleged inconsistency in position, any differences between section 1610(a) and section 1610(b) are irrelevant because each paragraph depends on the existence ofa ?claim.? Reply at 14?15. None ofthe amicus briefs cited by however, relied on a textual argument about the meaning of?claim.? See generally Servaas Brief; FG Hemisphere Brief; Af?Cap Brief. In sum, each basis on which relies to chastise the government for inconsistency comes up short. In the end, might have viable defenses to either the entry of judgment or a section 1610(0) order permitting enforcement of any such judgment. Waiting until the government?s actual attachment or execution efforts put those issues into sharper focus is the prudent course. CONCLUSION For the foregOing reasons, Motion for a Declaration that this Court?s October 5, 2018 Order is Unenforceable and that Property is Immune from Execution or Attachment, ECF No. 45, is denied. An appropriate Order accompanies this Memorandum Opinion. DATE: January 24, 2019 Beryl A. Howell Chief Judge 18 ATTACHMENT 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY SUBPOENA NO. 7409 Grand Jury Action No. 18-41 (BAH) Chief Judge Beryl A. Howell Filed Under Seal MEMORANDUM AND ORDER This case, which began with a motion to quash a grand jury subpoena, has moved quickly from this Court, to the DC. Circuit, and to the Supreme Court, attracting public interest along. the way. See Mem. Order (Jan. 15, 2019) at 2, ECF No. 57 (citing media coverage). The DC. Circuit and the Supreme Court have provided limited public access to their respective dockets, while shielding from public view the content of what has been docketed. See In re Grand Jury Subpoena, No. 18-3071 (DC. Cir.); In re Grand Jury Subpoena, No. 18-948 (US). In light of those courts having made their respective dockets public to some extent, as well as media inquiries directed at this Court, the parties were asked to file ajoint status report addressing whether a copy ofthe docket sheet in this matter may be unsealed to any extent, and, if so, to propose necessary redactions. Min. Order (Jan. 23, 2019). Although the parties were unable to submit ajoint report, each responded to the Court?s order. See Witness?s Status Report, ECF No. 66; Gov?t?s Status Report, ECF No. 67. The reports demonstrate that neither side objects to limited unsealing to the public of the docket, and the parties? proposed redactions mostly align. See Gov?t?s Status Report at 1 parties agree that the docket sheet can be partially unsealed and that the identity of the witness should remain under At the moment, all three levels of the federal judiciary have been asked to consider, or are considering, some version of this issue. This Court, however, already has ruled on what public statements the witness?s counsel may make. The Court ruled about what public comments Alston Bird?the witness?s counsel?? may make about this case during an impromptu status conference, held at the government?s request, without any advance notice of the issues to be addressed at the conference. See Gov?t?s Ltr. (Jan. 8, 2019), ECF No. 44 (requesting status conference). At Alston Bird?s request, the Court authorized the parties to submit proposed written orders. Upon consideration of the competing proposals, and consistent with the oral ruling, the Court?s written Order instructed Alston Bird not to comment on any publicly-unknown facts. See Mem. Order (Jan. 15, 2019) at 5 (refusing to enter the government?s proposed order because that order ?would preclude counsel from publicly commenting Thus, the written Order read: counsel shall refrain from making any public statement or statement to beyond the public information about the matter reflected in the public versions ofthe decisions ofthe DC. Circuit, unless otherwise ordered by a court.? Id. at 10. .2 For the foregoing reasons, it is hereby ORDERED that Alston Bird may not make any public comment that this case pertains to and it is further ORDERED that this Court?s order permitting Alston Bird to is STAYED pending an order from either the DC. Circuit or the Supreme Court that and it is further ORDERED that a copy ofthe docket sheet for Grand Jury Action No. 18-41 will be released with redactions that are agreed upon by the parties and consistent with this Order. SO ORDERED. Beryl A. Howell Chief Judge DATE: January 30,- 2019 2