Foreign Sovereign Immunities Act

Conventional wisdom and many lower court cases hold that foreign states are not entitled to constitutionally based personal jurisdiction protections in federal courts because they are not “persons” protected by the Fifth Amendment. That reasoning is incorrect as a matter of constitutional text and history, and it leads to poor results as a matter of policy for reasons explored at length in a forthcoming article and summarized here.

On Friday, Solicitor General Noel Francisco filed a brief on behalf of the special counsel's office regarding In Re Grand Jury Subpoena, the case concerning the special counsel's attempt to subpoena an unnamed company owned by an unnamed foreign government. The brief argues that the Supreme Court should deny the corporation's petition for a writ of certiorari. The brief is available below.

Earlier this evening, Dec. 18, the U.S. Court of Appeals for the D.C. Circuit released a judgment in In re Grand Jury Subpoena, a mysterious case that has drawn attention for its suspected connection to the Mueller investigation. The ostentatious secrecy has fueled speculation that the case might involve something as dramatic as an effort to secure testimony from the president himself.

On May 21, the Supreme Court granted certiorari in Jam v.