WASHINGTON — The Supreme Court issued a mixed decision on Wednesday over whether the federal government may prosecute a state-owned bank in Turkey on charges that it had helped Iran evade sanctions imposed by the United States.
The court rejected the bank’s main arguments, based on federal laws that the bank said prohibited prosecutions of foreign nations and the companies they control. But it sent the case back to an appeals court for further consideration of another potential defense, drawing criticism from two dissenting justices for failing to issue a definitive ruling.
The case involved what a 2019 indictment called a multiyear scheme by the bank, known as Halkbank, to launder billions of dollars of Iranian oil and natural gas proceeds. It strained relations between the United States and Turkey, and it prompted top Justice Department officials in the Trump administration to try to disrupt the prosecution.
Justice Brett M. Kavanaugh, writing for seven justices, rejected the bank’s primary argument: that the Foreign Sovereign Immunities Act of 1976, which generally forbids civil suits seeking money from companies owned by foreign governments, also prohibits criminal prosecutions.
“We now hold that the F.S.I.A. does not grant immunity to foreign states or their instrumentalities in criminal proceedings,” Justice Kavanaugh wrote, adding: “Congress enacted a comprehensive scheme governing claims of immunity in civil actions against foreign states and their instrumentalities. That scheme does not cover criminal cases.”
The alternative, he wrote, would be deeply problematic.
“On Halkbank’s view, a purely commercial business that is directly and majority-owned by a foreign state could engage in criminal conduct affecting U.S. citizens and threatening U.S. national security while facing no criminal accountability at all in U.S. courts,” he wrote. “Nothing in the F.S.I.A. supports that result.”
But Justice Kavanaugh left the bank with a sliver of hope, saying that the federal appeals court in New York had not adequately considered whether immunity from prosecution was available under longstanding common-law principles unrelated to the 1976 law.
When the case was argued in January, Lisa S. Blatt, a lawyer for the bank, stressed that history. “There just never has been a criminal prosecution of a sovereign or its instrumentality anywhere,” she said, adding, “The world has been around for, like, 7,000 years, and no country has ever tried another country.”
In the bank’s Supreme Court brief, Ms. Blatt wrote that conflicts between nations are settled by diplomacy or war and not in criminal trials.
“President Madison did not indict Great Britain for arson for torching the White House in 1814,” she wrote. “President Roosevelt responded to Pearl Harbor by unleashing the full might of the American military against Japan, not a phalanx of prosecutors.”
Justice Kavanaugh wrote that the appeals court should take a fresh look at the question of what the common law had to say about criminal prosecutions of foreign nations.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined Justice Kavanaugh’s opinion in the case, Turkiye Halk Bankasi A.S. v. United States, No. 21-1450.
Justice Neil M. Gorsuch, joined by Justice Samuel A. Alito Jr., issued a partial dissent. He said the 1976 law governs the dispute and that it applies to both civil and criminal cases but does not stand in the way of prosecutions like the one at issue given an exception in the law for commercial activities.
Justice Gorsuch faulted the court for its failure to issue a clear ruling, saying the court’s decision “leaves litigants and our lower court colleagues with an unenviable task, both in this case and others sure to emerge.” He added that “many thorny questions lie down the ‘common law’ path, and the court fails to supply guidance on how to resolve any of them.”
He said the court should have simply let the prosecution proceed.
“Today’s decision overcomplicates the law for no good reason,” Justice Gorsuch wrote.
