United States Court of Appeals for the 11th Circuit
Oral Argument 21-11083 United States v. Alex Saab Moran, Appellant
6 April 2022
Judge Jordan: [00:00:00.84] Our first case is number 21-11083 United States versus Alex Nain Saab Moran. Mr. Rivkin.
David Rivkin: [00:00:12.80] May it please the court. This case is about the United States unprecedented detention and prosecution of Alex Saab, a Venezuelan diplomat on a Special Mission to Tehran, who was detained at the United States existence, insistence, excuse me, when his aircraft stopped to refuel at Cape Verde Islands. The lower court refused to consider his clear entitlement to immunity from both detention and prosecution. The district courts are reserving, and the immunity ruling is tantamount to denial of that immunity, which brings this case to this court squarely in the proper posture for collateral order doctrine.
Judge Jordan: [00:00:48.86] Well, let’s talk. So. The, the stated basis for, let’s not talk about the functional effect, but the stated basis for the district court’s ruling, was that at the time Mr. Saab Moran was, in the court’s view, a fugitive, and it was not going to let you make a special appearance on his behalf to argue the immunity issue. But now, your client is here, and so that fugitive issue is, sort of in and of itself, evaporated. It’s gone. Right?
David Rivkin: [00:01:26.78] That’s correct.
Judge Jordan: [00:01:27.83] And so the question is, why should we, now take up the immunity issue on our own, as opposed to just letting the district court handle it and then letting us resolve it? And I’m not suggesting, because I haven’t really thought about it, I’m not suggesting that if the decision is adverse to your client, that you have to necessarily wait until the end of a trial. I haven’t thought about that issue deeply enough, but at least to have the district court take a shot at it and figure out whether or not any sort of an evidentiary hearing is needed on some or other issues, make evidentiary rulings, if any are required, and then, have a full record on which to decide your immunity claim.
David Rivkin: [00:02:21.91] Your Honour, I understand or believe from your question that you agree that there is collateral order jurisdiction. The question is, should you exercise your discretion to remand? I would say the following. There are compelling reasons ……
Judge Jordan: [00:02:33.97] We haven’t discussed that issue, but that’s okay. That’s where I think I am.
David Rivkin: [00:02:38.56] All right. Well, let me just say that clearly, that the teaching of this court, the two cases, Collins and Bouchard, and the teaching of every circuit court that has dealt with, district court reserving the issue of immunity, err, indicated there’s collateral order jurisdiction, the Whakaari case, in which it precisely involved the very same combination.
Judge Luck: [00:02:59.71] Can I jump in real fast? I want you to get to where Judge Jordan is going, because I that ultimately, I think is the right question and the question that I have. But, before you get there on Bouchard, it seems like those two cases are a bit of a different situation than this one. In those two cases, the courts, the district courts in those cases said, I don’t really want to decide this right now, so let’s get Discovery going, or I can handle this at summary judgment, I don’t have to do it at the dismissal stage. It’s a clear duck. That’s not quite what happened here. What happened here is the application of I’ll call the doctor and the Fugitive Disentitlement Doctrine and abstention essentially applied a legal abstention to the ultimate immunity question. It didn’t duck. It applied, I think correctly, an abstention doctrine. So why did those cases allow us to have jurisdiction under what I think is a carve out or an exception or an expansion of an already narrow collateral order doctrine, in a case that it doesn’t quite seem to fit exactly what those two extensions allow?
David Rivkin: [00:04:08.75] The seventh, Your Honour, the Seventh Circuit dealt exactly with the same issue with juxtaposition of fugitive disentitlement, with a culpable claim to immunity, which the court reached. And by the way, you’ve not asked me that, but I would point out that Shahoud is not to a countering judge primary.
Judge Luck: [00:04:24.29] I agree with you, you don’t have to worry about that. Answer my question, which is, we’ve seemed to have extended, in a very narrow way, the collateral order doctrine for cases where they we’ve said they’ve reserved or declined to rule.
David Rivkin: [00:04:36.59] I understand. I think it goes more to a nature of a discretion…. But I would say this, nothing is more important than reserving the issues, particularly on this type of immunity, err, that have to be done as early as possible. And I find it difficult to imagine that a judicially created doctrine and Bukhari actually dealt with this issue, it would trump, would somehow delay the consideration of the immunity related issues. But if I may briefly indicate, of course, look, you have discretion to send it back to the district court, but I think you should exercise your discretion and consider it for three reasons. One, it is a clear question of law. I would I would hope to convince you that there are really no disputes about any material facts. It’s really the.
Judge Lagoa: [00:05:24.47] Let me ask you a question, because that’s not my understanding of the record. You say that there is no issues of fact, but I believe the government is going to stand up and say that they don’t recognize your client as a diplomat. So isn’t that a disputed issue of fact?
David Rivkin: [00:05:41.58] There are two ways to look at it, Your Honour. The government argues that as a matter of law, they’re reading an incorrect reading at that of a 61 convention and the DRA Diplomatic Relations Act, because the United States does not recognize him as a diplomat, which is true, but irrelevant because he’s not accredited here. He’s not a diplomat. But as far as the relevant facts, his documents, his appointment as a special envoy. Documents pertaining to his mission.
Judge Lagoa: [00:06:09.19] But again, I’m sorry.
Judge Luck: [00:06:10.50] These are the documents aren’t authentic. This goes to Judge Lagoa’s question.
David Rivkin: [00:06:13.38] I’m, I’m, I’m going to get to it here Your Honour, forgive me.
Judge Lagoa: [00:06:16.32] Again, we’re not, we’re not fact finders. We’re an appellate court. And so I understand that we have the discretion, but we have the discretion when really it truly is a pure question of law. And here, it seems to me, at least for me, personally, that this is a mixed question of law and fact, because there are a lot of factual questions that still need to be resolved. And it’s not by us, but by the district court.
David Rivkin: [00:06:46.11] Judge Lagoa, the government made a footnote size observation about authenticity. We submitted all of the relevant documents in a court record. We have also, happy to point out, that we put forward Rule 901 and 902 of federal rules of evidence. Again, I don’t have much time to get through all the details about how 901 works in terms of how the documents look, the signatures, the language.
Judge Luck: [00:07:14.07] Counsel, but why don’t you take, you know, you reserved 7 minutes for rebuttal time, which is a fairly unusual in our court. Why don’t you take a few of those minutes to answer these questions?
David Rivkin: [00:07:23.81] Thank you, Your Honour. I just wanted to say that time is very much of the essence here, err, Mr. Saab, and it goes to exercise your discretion, err, Mr. Saab has been detained now for nearly two years, first by Cabo Verde, acting on US behalf, and then by the United States itself. The government’s assertion that there is no obligation to Mr. Saab because he’s not accredited here is inconsistent both of a language of a convention DRA, and the teaching of the court’s own precedent. That Abdulaziz case, I’m pretty much out of time, but I wanted to just make one point very briefly, Your Honours, more than the fate of one man is at stake here, robust protection of in-transit immunity, which is a particular version of immunity under Article 40 of the Vienna convention and the DRA. That’s in play here and is vital to the effective functioning of diplomacy for all states, a task, Your Honour, is which I think is all the more imperative these days, when we see an aggression by the great power that brings unprecedented misery to millions of, of, Ukrainians and other people around the world. And I would also argue that this type of immunity, most robust vindication of in-transit immunity is particularly vital for the United States, which is the world’s diplomatic superpower. There are diplomats who often have to transit third countries to get to where they’re going. So we think that it is absolutely essential, given the combination of those factors, I hope to convince you in my err, in my remaining time, that err, we have satisfied our authenticity concerns. Diplomatic immunity is a mixed question of law, in fact, you would have to, however, review it de novo. So if you send it back to the district court, we’re going to be in a situation where err, at least another two years are going to come by where Mr. Saab would be detained err, so…..
Judge Jordan: [00:09:12.23] That’s not necessarily true. Well, let’s. If, if the collateral order doctrine allows an appeal from the outright denial of a diplomatic immunity claim. And again, this is all I speak only for myself, I think if you’ve got, an outright rejection of diplomatic immunity, I think you can come straight up here. I don’t see how that’s different than almost any other immunity that we’ve sanctioned an immediate appeal for already. So I’m not sure. I’m not sure that you would have to wait until the end, for example, of a trial. But that doesn’t go to your point that we should do it anyways. But it’s only an observation that you may not have to wait until the very end.
David Rivkin: [00:09:59.16] I understand, Your Honour, but with respect, you can have a targeted remand. You can remand specifically for evidentiary fact finding. But I would say with respect that, yes, we understand the motion practice before Judge Scola would take place, before trial when it would go up to you and come out with a collateral order doctrine. But it would have to be debriefed in the, in the, 11th Circuit, that there would be an oral argument. I would be amazed if it took less than another year. And again, the exigencies of literally every day Mr. Saab is in prison is, is, a grave breach. It’s almost a First Amendment type situation. It’s irreparable harm to him. It’s irreparable harm to the sovereign state whose diplomatic agent he is. So, there’s a huge cost to be paid. I would, I would submit it is your discretion entirely, but I think you should exercise it in favour of resolving those issues.
Judge Jordan: [00:10:48.87] All right. Thank you very much, Mr. Rivkin.
David Rivkin: [00:10:51.39] Thank you, Your Honours.
Judge Jordan: [00:10:52.41] You’ve saved 5 minutes for a rebuttal. Mr. Sanders.
Jeremy Sanders: [00:11:13.50] May it please the court. Jeremy Sanders of the Criminal Division on behalf of the United States. Your Honours. At the time the parties filed their principal briefs, this appeal presented the question of whether the District Court clearly erred when it classified. Mr. Saab, who was at that time contesting his extradition from Cabo Verde as a fugitive from justice, and whether it abused its discretion in invoking the fugitive disentitlement doctrine to conclude that Mr. Saab was, quote, “precluded from attacking his fugitive status and indictment until he is physically present in the jurisdiction”. Now, the government argued, in its in its response brief, that this court lacked jurisdiction to consider the merits of that order on an interlocutory basis under this court’s decision in Shalhoub, and that the appeal should therefore be dismissed. Now, however, the facts on the ground have materially changed. Mr. Saab has been extradited from Cabo Verde. He has been arraigned in the district court and he is awaiting trial. As a result ….
Judge Jordan: [00:12:13.35] Is there a trial date presumptively set?
Jeremy Sanders: [00:12:14.88] There is a trial date for, um, October 11th of this year. And I would…
Judge Luck: [00:12:22.20] Have the parties briefed the, the, merits of the diplomatic immunity claim?
Jeremy Sanders: [00:12:25.68] No, Your Honour, because Mr. Saab has not reasserted that motion. The procedural posture in which it was first came to the court was that he made a motion to vacate his fugitive status, combined with a motion to especially appear. Appended to that were the proposed motion to dismiss that he would like to..
Judge Luck: [00:12:44.28] So fast forwarding. In your reply on the motion to dismiss, it seems that you, I won’t use the term concede, because I’m not sure that you used that term, but, at least acknowledge that this isn’t necessary, that the case is not moot even if the issue of the Fugitive Disentitlement Doctrine is moot. But that as a matter of our prudence, we should decide to remand to the District Court. Is that the government’s position?
Jeremy Sanders: [00:13:06.48] I think it is certainly true that we, we, rely heavily on the doctrine or the notion that as a matter of this court’s general precedent, it wouldn’t resolve an issue that hadn’t been resolved by the district court. But I do think, if I may answer your question, there is a jurisdictional component to our argument with respect to the special envoy diplomatic immunity claim, which is to say this court didn’t have jurisdiction to begin with. And what the case Mr. Saab relies upon, umm ….
Judge Luck: [00:13:37.62] You’re talking about under the collateral order doctrine.
Jeremy Sanders: [00:13:39.12] On the collateral order doctrine.
Judge Luck: [00:13:40.61] But let’s deal with that in a second. On mootness, at least, you agree that the case itself is not moot, even if the issue of the Fugitive Disentitlement Doctrine is moot.
Jeremy Sanders: [00:13:49.26] I think that’s correct, Your Honour. I would say at most the issue related to the diplomatic immunity is premature because it lacks.
Judge Luck: [00:13:57.57] Let’s get to the question that I asked, regarding Bouchard and Collins, right? So, I think they’re wrong. I think we should not expand the collateral order doctrine. And I think there’s all sorts of case law, including from us, which says that we should be really careful in that. But, those cases exist and they’re there. And it seems that where a court doesn’t decide the immunity issue, for whatever reason, they don’t carve out because of abstention or because of this, but for whatever reason, it seems that, that itself the court see that itself as a decision which deprives someone of the immunity for which they are entitled. Isn’t that essentially what we’ve said in those cases?
Jeremy Sanders: [00:14:34.77] Well, so I would answer it much as, as, Your Honour did in the questions to my opponent, which was simply those cases were not instances where the district court was implying a long established, recognized doctrine that precludes individuals from taking, err, asking for benefits of the court without submitting to its burdens.
Judge Luck: [00:14:52.92] And the facts are different. But the legal principle that they establish seemed to be that where a court, for whatever reason, does not rule on a claim of immunity, that that is, in essence, a deprivation of that immunity, where that is an immunity from suit or from or to be brought before the court.
Jeremy Sanders: [00:15:09.54] So, another critical difference, I think, or those both of those cases are civil cases. And the Supreme Court has reminded us, many, many times that the collateral order doctrine is narrowly circumscribed in criminal cases, more so. So to that extent, those cases
wouldn’t control in this case anyways, but even more appropriately, it’s the factual differences that I think, I don’t dispute that those cases did acknowledge that the court’s decision ….
Judge Jordan: [00:15:34.38] If the President of the United States, no matter whom he or she was at a given time, were charged criminally, in a state court, for something that he or she did as the commander in chief, and that court denied an immunity claim, right?
Jeremy Sanders: [00:15:56.84] On the merits.
Judge Jordan: [00:15:57.17] For whatever reason, make up your reason. You’d be up at the appellate court in a heartbeat, arguing that that issue had to be resolved immediately. Right? Well, if the trial court said, “ahh, you know what? I think this is really a factual question. I think we better have a trial. And after we have a trial, I’m going to figure out whether or not the president has immunity or not”. You would say, that’s the functional denial of immunity, and I mean, you the government, and you’d be up in an appellate court in a heartbeat saying you needed immediate review. And if you and if your answer is no, not necessarily, then you’re turning again with the cases that Judge Luck has discussed with you, you’re turning reviewability into a quasi merits decision to see whether you agree with the decision, on the ground. And if you sort of agree with it, that there’s no collateral order jurisdiction. If you strongly disagree and there’s collateral order jurisdiction and that’s no way to run a ship.
Jeremy Sanders: [00:16:59.35] Respectfully, I think it’s Mr. Saab that’s trying to ask this court to look through to the issue that wasn’t decided the merits issue to determine whether there’s collateral order doctrine review. Shalhoub said, that the denial of a motion to specially appear, is not the equivalent of a right to not to be tried.
Judge Luck: [00:17:17.78] Shalhoub really can’t govern here. I have to say I agree with your opposing counsel here. I mean, there’s a specific carve out for when there is an immunity issue bubbling. Now, the question for me is, does it meet the first element of the collateral order doctrine? Was it conclusively resolved? Because that’s what the Supreme Court told us is the exception. The immunity or whatever it is, has to be conclusively resolved. It wasn’t here, but we have these cases which seem to suggest that the ducking, and I’ll use Judge Jordan’s terminology here, for whatever reason, the failure to rule on it is itself a decision to bring someone in, to haul someone into court when they are not otherwise required or entitled to be in court.
Jeremy Sanders: [00:17:59.23] I want to be very clear that the District Court has made it abundantly clear that it is ready and willing to decide this issue. There was a hearing recently in which the parties discussed the procedures that would be involved. The government specifically mentioned that it anticipated needing to use methods to secure the testimony of individuals from Cabo Verde who would be able to testify as to the statements made by Mr. Saab when he was arrested, whether he invoked diplomatic immunity at that time, whether he possessed a diplomatic passport. So the district court has signalled that it’s ready to decide that, just as it did in its order when it specifically….
Judge Luck: [00:18:35.11] We understand that. But, but you’re opposing counsel has told us to rule. They want us to rule. And so, they’re not going to file there, given that the potential is that we could ruin the legal issues. So let’s talk about that. Judge Lagoa asked your opposing counsel about factual issues. What exactly are the factual issues that you say are live and need to be decided by a fact finder rather than issues as a matter of law for us to decide?
Jeremy Sanders: [00:18:58.06] The United States has disputed the authenticity of the documents that Mr. Saab presented and as mentioned a few moments ago, is, it wishes to present testimony that would bear directly on Mr. Saab’s assertion of diplomatic immunity in Cabo Verde.
Judge Luck: [00:19:14.05] Have you filed any documents contraverting the 902 11 certificates that you’re opposing counsel says were filed?
Jeremy Sanders: [00:19:20.83] I don’t believe so. But again, we reserved the right, in the district court, to brief the issues on the merits should it have decided against us on the….
Judge Luck: [00:19:28.66] Why aren’t those self authenticating? That’s the whole point of the rule.
Jeremy Sanders: [00:19:30.97] But but I think the point is whether the document is authentic is, is one question in terms of authenticity. Whether it represents a legitimate invocation of diplomatic immunity is quite another.
Judge Luck: [00:19:47.68] That’s a legal.
Judge Jordan: [00:19:48.85] That’s a merits question.
Judge Luck: [00:19:50.86] And a legal issue.
Jeremy Sanders: [00:19:51.97] Right. Which I think underlies the whole point that we’ve been making.
Judge Jordan: [00:19:56.41] I thought I understood from your brief where you were with these exhibits, but now I’m a little confused. Your concern is not with authenticity as a matter under the federal rules of evidence. Right? Or is it?
Jeremy Sanders: [00:20:12.60] I think. I assume I think I know where you’re going with the other. I would say it’s both.
Judge Jordan: [00:20:18.93] Ok, so you think that they have not met what is generally a pretty easy threshold for authenticity? Right? You think they haven’t met that standard.
Jeremy Sanders: [00:20:28.95] Or that we should be entitled to present evidence to rebut that!
Judge Jordan: [00:20:33.36] OK. And then your other contention is, that even if the document is properly, the documents are properly authenticated and introduced as an evidentiary matter, then you have reasons why they either are entitled to little or no weight, or, they don’t mean what Mr. Saab Moran says they mean. But those last two things are not challenges to the documents themselves. They’re about what the documents mean and what weight they carry if they’re admitted into evidence, right?
Jeremy Sanders: [00:21:03.44] That’s exactly correct, Judge Jordan. So there are there are two principal arguments, but I think the larger one that does need factual development for the district court is, what these documents mean, what they represent. And the and just because there may be legal determinations as to whether someone’s entitled to diplomatic immunity, this court usually allows the district court to address those concerns in the first instance. So it’s presented with a complete factual record. Now, part of the problem.
Judge Luck: [00:21:31.58] Usually, usually, but this is a unique case.
Jeremy Sanders: [00:21:33.62] Usually, but I think the problem, as borne out in the briefs, is that Mr. Saab is using terminology in customary international law and the Vienna Convention interchangeably, and there’s multiple bases on which he purports to be proclaiming diplomatic immunity, none of which….
Judge Luck: [00:21:52.97] Those are legal issues. And I and I, I understand. And we and I want to talk about those legal issues. But, but, they are truly legal issues that we are just as competent to decide, and your opposing counsel is correct, one way or another, some court here is going to have to decide this.
Jeremy Sanders: [00:22:07.31] That’s certainly correct. But all those decisions are informed by the factual underpinnings of his argument, which the district court is entitled to hear on the first instance. And of course, the government is entitled to present evidence to rebut, which it hasn’t had the opportunity to do so yet. And I think this claim of time is of the essence that Mr. Saab keeps saying is really of limited persuasive value here, because he could have agreed to dismiss this case as soon as he was remanded here to the United States and had the district court decide the issue and it could be back up on appeal. But instead, he has persisted in an appeal that this court certainly, even if it had jurisdiction to consider the Fugitive Disentitlement issue at the outset, under an exception to Shalhoub, for instance, it certainly doesn’t have any more now that the principal issue that WAS decided by the district court is moot. And so Mr. Saab has tried to take an arguably interlocutory order and ride that grant of jurisdiction to have this court decide something that the District Court NEVER decided in the first instance. That would be tantamount to allowing a criminal….
Judge Luck: [00:23:19.34] It’s not that unusual, Counsel. I mean, we, we, decide, we affirm for alternative reasons that were raised below and raised here, I wouldn’t say all the time, but not infrequently. I mean, that’s really what this is. The question is whether this is an order that’s subject to appeal or not. If it is, though, there’s nothing wrong with a party saying, I raised this below, district court didn’t decide it, but you can affirm on that basis.
Judge Jordan: [00:23:40.79] Here’s, here’s where I think the potential difference is as a matter of discretion. That in at least some of the immunity cases that we do ourselves here on appeal, there is a…. sort of established format or procedure for how you view the filings in the district court. So for example, if it was a district court, that for the wrong reasons, just put off an immunity decision, let’s say a legislative or qualified immunity decision, we would look at the allegations in the,… at the motion to dismiss stage, let’s say, you would look at the allegations, in the complaint, as true and you would accept them. Or if it was at summary judgment, you would look at the facts in the light most favourable to the non-moving party, and THEN you decide the immunity question based on that accepted view of the allegations or evidence. Here, I’m not sure that there’s an established mechanism for doing that, like, how do you take, the motion to assert diplomatic immunity in an appellate context on interlocutory appeal. I’m not sure that you accept Mr. Zammeran’s version of events, because you’re the party that’s opposing immunity. It’s just, it’s just different. So, I take Mr. Rivkin’s point that, we COULD do this. I just think it would be, really hard.
Jeremy Sanders: [00:25:22.09] I think all of….
Judge Jordan: [00:25:22.84] It has potential pitfalls, where in the middle of the process, we might throw our hands up and say, Oh, we thought we could do this, but we really can’t do it, and six months later, we’re sending it back down.
Jeremy Sanders: [00:25:33.87] All of those reasons. I think, Judge Jordan, highlight why this court, as a matter of prudence, usually and as in the normal course, remands issues like that to the district court to, not only consider the fact finding and present a complete factual record, but also to parse through the different types of immunity that are being claimed here and are sort of interchangeably being used by Mr. Saab when, when, they are very different and have very different err, err, results under the law. Umm, I see my time is almost up. If the court has no other questions, we’ll rest on the arguments and our brief.
Judge Jordan: [00:26:10.53] There to go back quickly to one of Judge Luck’s points, because I think you answered it in part, and then we interrupted you. Factually, not legally, what are the disputes in your mind? One is you said whether or not he invoked any sort of diplomatic or other similar type of immunity. What are the other factual disputes? Putting aside the authenticity of the document. That’s an evidentiary question. But I’m talking like, facts on the ground, chronological facts.
Jeremy Sanders: [00:26:46.49] Certainly. Whether and there was a portion of the district court’s record that was under seal, it’s now been unsealed. But the facts relating to that and Mr. Saab’s previous encounters with the United States, whether he ever asserted diplomatic immunity in those instances, and I think generally the question is whether this claim of special envoy status is simply a ruse made up by a rogue nation to allow a defendant to escape criminal charges in the United States for which a grand jury returned a valid indictment.
Judge Luck: [00:27:19.16] It goes to the weight of, of, the claim, assuming the authenticity of the document.
Jeremy Sanders: [00:27:23.10] That’s correct, Your Honour. We ask this court to dismiss the appeal. Thank you.
Judge Lagoa: [00:27:27.83] Thank you.
Judge Jordan: [00:27:29.80] Well, I thought you said or dismissed the appeal because you think that there’s no collateral order of jurisdiction to hear it in the first place.
Jeremy Sanders: [00:27:35.47] And dismiss the appeal so that the District Court can develop the record and retain and regain jurisdiction over the proceedings.
Judge Lagoa: [00:27:42.28] Would we dismiss or are we remanding back to the District Court?
Jeremy Sanders: [00:27:46.15] I think there and I did think about this question umm, whether it would be appropriate to remand. I think, there’s nothing stopping this panel from retaining jurisdiction over a future appeal. But again, our jurisdictional argument would mean there would be no jurisdiction to hear it, in which case it would have to be dismissed. If that’s not….
Judge Luck: [00:28:03.70] I think the right answer is I’ve looked at it as well. I think the right answer is we’d vacate the portion dealing with the Fugitive Disentitlement Doctrine, which everyone agrees is moot. And then we would remand for a determination of the open issue, which is the immunity issue. And that’s assuming that we all agree that there’s we have collateral order jurisdiction.
Jeremy Sanders: [00:28:21.22] Assuming that the government loses on the collateral order issue, it would have no problem with that in order of that.
Judge Jordan: [00:28:27.31] All right. Thank you very much, Mr. Sanders.
Jeremy Sanders: [00:28:28.84] Thank you.
David Rivkin: [00:28:33.71] Your Honours, I have very little time. So let me stipulate that I think I don’t need to get into the teaching of Chafin versus Chafin and talk about the fact that one issue is moot. They’re still case and controversy, etc., etc.. Look, there are, the only factual argument the government put forward is authenticity. We amply satisfy the requirements.
Judge Jordan: [00:28:58.52] You think, you think they’re going to agree to every chronological fact on the ground that you’ve asserted?
David Rivkin: [00:29:05.07] Err, first of all, I believe that those facts, given the way in which the 61 convention work and the DRA works, are irrelevant. One thing you should err….
Judge Jordan: [00:29:16.62] Tell me, tell me, and if we need to go a little bit over your time, we will. So tell me. From your perspective then, Mr. Sanders has told me, at least in part, what he thinks some of the disputes are going to be about, give me five of the most important facts that you think show that Mr. Saab Moran is entitled to the immunity that you’re asserting. Give me five, the five most important facts.
David Rivkin: [00:29:41.73] Right. Thank you, Your Honour. Mr. Saab was appointed as a special envoy in 2018. The document attesting to that, by the Venezuelan government, which, by the way, was fully recognized at the time, no, no disputes as to who was the president. That document is available on the website of the Venezuelan Official Gazette. Then you have several documents that relate to the specific, because in-transit immunity obviously attaches not just because your special envoy, but we’ll still traveling from ascending state to receiving state. So there’s a document again available which we produced, but also available in the Ministry of Foreign Affairs website as well as in the UN mission of Venezuela that shows the sending state’s letter to Ayatollah Khomeini. You have the document from receiving state indicating they’re waiting for him. You have a document from the foreign minister emphasizing his immunity filed. Also in the Cabo Verde proceedings. Look, the whole thing about authenticity, I hate to sound overly critical of my colleagues, but it’s a canard and the government knows it perfectly well. This is one interesting point. The Cabo Verde proceedings, Your Honour, which the government attached the document in the footnote to in their opening brief, specifically tells you can take judicial notice of the portions of their decision. This decision was legal proceeding an extradition was driven by the government, by the US government. Nobody took any issue at the time of whether or not….
Judge Luck: [00:31:24.48] I apologize for for interrupting you. Isn’t the weight, though, to be accorded to those documents, again, assuming their authenticity, isn’t that a factual determination? In other words, if the government comes in and says, yes, yes, yes, the Venezuelan government has produced these documents that say this, they are, they meet the authenticity threshold, but they should be accorded no weight because, for example, we believe that it’s a ruse and a sham for these reasons … and that reasons.
David Rivkin: [00:31:53.79] Your Honour, forgive me. I disagree most strenuously with this. This is a quasi legal argument and utterly dangerous at that. And I’m frankly sad that the government has made it. The implication being that, yes, they are authentic, but because you are disfavoured regime, because you’re Venezuela under Maduro, because you’re North Korea, because you are Iran, we’re going to treat you as somehow you lost the Westphalian entitlement to sovereignty.
There’s absolutely nothing in the 61 convention that says only respected state parties have a right to have their diplomats enjoy immunity under Article 29 and (?) immunity. That is an utterly dangerous argument for the stability of the international system for the United States. But that’s utterly not a factual argument. Your argument just underscores how important to resolve this. There’s nothing factual about it. If I may, Your Honour, again, the time is very much of the essence. I’m not going to belabour at this point. You will deal with this issue and de novo context anyway. There are really no factual issues, the business about it here, so it is immunity. He asserted his immunity. If you look at the Cabo Verde decision, there’s no denial about this. And also, quite frankly, there is no case law that suggests that you need to assert your immunity within the next within the first few minutes. One thing that’s very clear, immunity waiver, unlike an FCA, which can be implied and expressed, if you look at the 61 convention, the waivers of immunity and Article 32 have to be explicit and are highly demanding Article 32.3 provides the very narrow range of circumstances in civil cases where that immunity can be waived. So there’s absolutely no way … the government can throw all sorts of things and say, well, how did he look? Was he happy? Was he crying? Did he pitifully plead his immunity or did he plead it calmly? Irrelevant! The facts have to be material to your status, and there are no facts.
Judge Jordan: [00:33:55.56] And we’ll close with this, Frank.
David Rivkin: [00:33:57.63] Your Honour.
Judge Jordan: [00:33:58.05] That. In other immunity scenarios, we have relatively developed bodies of law against which we operate. Right? And that makes it a little bit easier for us to decide an issue on appeal if we thought that the district court improperly sidestepped the issue. This is not one of those areas, and I think that’s what you’re getting from at least some of the questions that you’re fielding, which is…. we’re doing this sort of from scratch. There isn’t a whole developed body of law out there, at least not domestically, with regard to these issues. And that might be why you’re sensitive.
David Rivkin: [00:34:41.57] If I may very briefly Your Honour and I appreciate your indulgence timewise, but Kerry is a perfect example of how the Seventh Circuit dealt with exactly the same issue.
Judge Jordan: [00:34:50.33] I know that there isn’t a complete absence, but the law there, I’m talking about like a developed, coherent body of law, things that we’ve done, if not month after month, at least year after year. For example, in the qualified immunity context, we have probably thousands of cases by now against which to operate. That’s not necessarily the case.
David Rivkin: [00:35:13.40] If I can respectfully suggest, Your Honour. The problem here is that the government has never done it to anybody else, where we’re of no case. We have a historical record to put forth. The government has never done it. So in some sense we’re being penalized here because it is a it IS a unique case. But this is the circuit that decided Abdulaziz I wish we had time to discuss Abdulaziz and and how it impacts this decision. But this is, it’s very difficult for me to accept the proposition because it’s a unique situation where the government violated in transit immunity several times of a diplomat and put forward the most frivolous arguments like the Vienna Convention does not apply to special missions, only apply to permanent representatives, which flies in the face of Abdulaziz as well as the language. Or that in transit immunity does not apply to somebody who is traveling for a country he was not intended to come in, which would write out of existence Article 40.4. I mean, I wish we had time to talk about it, but it’s it just never happened. But I mean, it’s.
Judge Jordan: [00:36:20.45] We get it. We get we get your position. Mr. Rivkin, thank you very much. Mr. Sanders, you too will take the matter under advisement.
Judge Lagoa: [00:36:29.49] Thank you.