laboratory appeal motion on t j he says that opponents were plainly agents for cut and he also said that he alleges that defendants acted at cutter's direction he also says in his opposition brief here that cutter and a on this point you have some burden when it comes to the jurisdiction question here and somebody when it comes to your assertion of immunity here sad the complaint and put aside the contract do you represent that musician was an agent of cutter i don't know that i can represent anything beyond what's been alleged at this point nora you represent so you can't represent th that the objection comes down to the fact that the agents here are u s citizens he at that point we are you know we're operating under the complaint mr body's never really pushed back on that are used i believe there was never has asserted anything the absence of of a statement of them you mean like the case here is not that the inquiry ends there it's on the court to look to the established principles of the state department in the common law to understand the agents and unity and that's what we're asking the court to do here i mean keep in mind when that the case was initially decided in california a couple of years ago the courts found right away that kind of was and you know you have the allegations in his own complaint that we're the agents of cutter so at that point you know from the twelve the one perspective there's no more to do i mean we that the pleading standard for him at that point is somewhere to a top be sixteen or there's been no request for discovery no further factual development and that's the record that's why your jurisdiction i don't think is affected by the fact that we're on the complaint recorder never we communicated with the state department to request a finding of immunity for these defendants correct that's correct your honor but my response to that would be they had the rolling right away that they were amusin they had the allegations that we're acting at their direction and if you look at the heaney case from the nd circuit ju friendly he says in the absence of us of a statement of immunity when you're talking about the heart of political ass diplomatic acts like you had here the court doesn't need a statement of immunity to to california law that was alleged are they all apply also to private individuals who who want to go in and act and for example if if your clients had done what they did and then turned around and offered their wares to hotter there would be no claim of the new i think that's right you're either that's not what happened here i mean there's no daylight between what district courts order that it wants access jurisdiction here at the effective in forcing a rule of law against the state of qatar i don't i don't see that the if the district court is careful about discovery and respecting others immunity conduct based on the unity in the common law so when lewis is talking about that for instance that's under the assumption that sex is if the sex is the scope of conduct based immune tama that's not what we're saying so i wanted to clear about what in this case is still even different to lewis  apply that because in this case eaton's are doing what color is has been held to be immune to do i said that i said that correctly but the actions that the agents are taking they are the state when they're doing and when they're directed by the state and so this is where you sort of it's not about the individuals that's what kind of congressman is about the immunity of the state and again there is no promise of the if you take the allegations is true of the complaint they would you agree with me they make out a criminal offense under federal law i was like i'm not a criminal lawyer but it sounds criminals and yet and isn't it also true that an individual committing criminal offenses is not entitle to immunity while that's true your honor in fact and then doesn't it follow then that if we accept the allegations in the complaint as you have just agreed making out a criminal criminal offenses there's no way that these individuals are entitled to immunity because if they were then i think there is some an indictment should have to be dismissed of some russian hackers that occurred during the last the previous election not this one well i think it's too sad i'm not trying to tell if i want to but i think it's two separate things i mean what we're saying here is that they are on the eve of the civil claims in this case and you know what's left are misappropriation of convicted and then a case was brought a civil case was brought in there's no possible way they could have immunity why i'm not sure about why it makes sense that he says this is that you're in the province of the executive here at least in terms of understanding or in sovereign immunity and so when the when the executive decides we're going to prosecute this case they're making a judgment on foreign sovereign immunity which you have here is you have another u s interests and you know arguably with agenda of an agenda of his own individual or company i guess for that matter that is registered on the foreign agents registration act has a munity for anything that it does in in compliance with the wishes of the particular government that complaint are they agents having magister under fair or are they are agents of the foreign sovereign they're fair registration is not what we're saying is the scope of the agency for what happened in this case is that they were saying is  has to be that the people is because the foreign sovereign acts or individuals it has to be that they are immune to this no daylight between them and the individuals and that's not abroad i don't follow that so i imagine you have i mean i understand the quarter cases all the cases relationship as the arm of the the government that's immune and it's a very different situation where you have somebody that's hired to you know sketch out a plan and maybe take action and where would be immune for its action if it did this it's very different to say that individuals whose relationship to hotter has only been been  through them all right where where the fact that they're contractors what what was what was key was that they were directed to do what they did not their status and i think the issue is that this is not status based immunity this is and if you look at the common law if you look at the what the state department has said if you look at the foreign sources that the state department's incorporates it's clear that the fact that you're not in official in the sense that you're  your client's role is as in in regard to the conduct alleged here acting as agents of hunter well i am not sure i mean my concern is this case has been this is i think the th complaint filed by mr  make any sense if we're going to have to congress direction so i don't know what discovery would would would would do at this point i mean i think this is this record is it is enough for your jurisdiction is it because involvement is not where his not going to in the end have to that supports the causes of action would require any involvement of any foreign government right but his theory here ron i understand has i mean that they may not get to do the discovery that he hopes to get about how to i mean people's motivations are pursuing is separate from what the law requires and what the claim rests on we don't have any question that this case could proceed if either tomorrow as a discrete point but then the whole thing becomes different it becomes you know you have individuals who are doing something on their own turf mr brady and the entire context of the case every everything about this is an entirely different case happened so far and what's going to happen in the district court which is mr body will see days of discovery about what happened in california the way that manifested itself was that there was sort of an agreement to stay away from the pardons but at the time  and was not a party discovery was taken cutter was in that case of course but they that they stepped in to protect under a protective order is highly confidential what the what the california court later referred to as the diplomatic that question about say me made the district court that i think does not mean that you've waived the argument you're making but i want to get some clarification on what you said and this is that documentary forty one have in front of me and and you know i i can't remember precisely what we were getting at then other than lewis had come out kind of in the middle of days and sort of shaken things up and we were sort of they were not where we were but but you know i would say we reason why a statement defendant here or not asserting foreign official immunity is not a waiver of your argument that you are now on that because footnotes don't count well you know i guess it depends on the flip no your honor but you know john justice justice douglas in the dissent said that he said footnotes don't count complaining about the majority nd our argument on jurisdiction is that there is not a substantial public interest and the defendants being heard in this court at this point and that the reason is their entire argument is that there is a substantial interest in protecting cut color is not your cover has not not sought relief from the united states and qatar has done everything they can to any association with the facts of this case so it's very hard for me to see how there is a substantial public interest in protecting cutter in this case when cutters done nothing to protect itself on the merits but on i mean the collateral order dr and doesn't look at the mantel public just because whether there's an issue that's conclusively determine by the district court that is completely separate from the merits and would be effectively i'm reviewable on appeal and yes it has to be an important issue completely separate from the merits but but epically when we're looking at jurisdiction d we assume the party could prevail on its position and determine that last year so if we assume prevails on the wind why doesn't that just brings all the jurisdictional question well st substantial public interest is with all respect part of the analysis under we'll be having what they're saying is the right they want the right to avoid a trial but it's right to avoid a trial that would imperil a substantial public interest and the reason is that these defendants these alleged agents of  are private agents and cover their there's no substantial public interest in the timing of this appeal they can bring that issue at the end of the case and and  and they can be protected if they are correct they could be protected from liability at that point but the right to avoid a trial as opposed to the right to avoid t to nonpublic agents of a foreign sovereign i mean part of this is simply these guys just don't don't merit immunity and it plays into the merits and in some regards and of course we filed a motion to dismiss the appeal to try to avoid the time of the appeal so in some sense we are here on the merits and i'm happy to talk about the merits i don't want to just jump right down the jurisdiction because i think the merits are incredibly strong my neighbor because my tree is overshadowing hers i can just say well like italy made me do it and so there is you know you're always looking at some level at the type of merits claim that to me that m department in any way to to see the united states intervention here as a matter of fact as it were in the th circuit or in the central district of california the cutter actually opposed going to the state department the defendants acting at the behest of qatar why don't we take that take your word for it on this point in terms of analyzing immunity so complaint and this court has never just looked at the allegations the complaint but that said i want to talk about the allegations we can play a little bit we only had really what your best authorities are when you say the state department don't just look at the allegations in the complain so we still want to look at the facts we have an obligation to satisfy ourselves of the facts and so they looked at the question of national action in that case notwithstanding not withstanding the allegations of the comply and the state has set a stage and said look even when even when the foreign sovereign tells us something is in an official capacity we're still going to satisfy ourselves of that and said that judge i mean there are a number of briefs where with that we filed we have a supplemental at the end of this case yes that has most executive we thought that would be helpful to you here given that they're not always easy to find and and in agent the question of is there an established policy of the united states recognizing immunity under the circumstances here step two of the samatar analysis there did seven attorney general take in but that's under a commission that is a commission privacy or under a formal commission recognized under international law to give the protection of of the majority of these cases involve someone who has an employment relationship and even an appointed or elected relationship with the state that is hiring unusually high ranking officials sometimes just employees within the formal structure of the government and so on that mr kaufman i'm sorry to interrupt but you know so much is done by governments around the world through contracts that used to be done by employees and i guess my my precise question is we don't have a state department statement interest here we don't have had our coming in and asking for a position but if we were to say i mean is is the best way to resolve this case to rely on the burden there hasn't been a showing that there is an established a department position but if the state of our wanted to develop one nothing that we say was foreclosed that that's right that's right on the agency point right right i think it would it would be an arab nation of judicial power with all due respect to my friends on the bench too to try to fill a gap here a common law so i mean my favorite quote in all of this case just read also you're not going to be surprised is your your statement in in your separate opinion and louis where you say it may be that there is and never has been a common law for an official munity i think that's right here in two respects st the respect that you said which is the just not that much law there's just not enough of a body of law for us to look at and decide what you know what the standards are but nd and this is really critical there is no common law in the in the classic sense of common law judge made gap filling what what this what the entire focus of this inquiry is is what would states what is the state department what is the position of the united states and hofmann going back to nine hundred and forty nine dollars often says court shouldn't be making it up one way or the other it's just as bad for a court to try to fill a gap or stay wouldn't provide immunity as to do the opposite and so that when you're over the common law you mean state department common law that's that's what common law is in this limited context the the the substantive law that hoffman policies that extend them unity to contracting agents and and what i would say is if you look go back to underhill the nd circuit's opinion that led to the active state doctrine in the late ratified acts of those agents going back as far as the st statement by the executive branch the attorney general seven hundred and ninety four opinion in suits against foreigners which isn't one immunity might apply what we're talking about you know all of these cases to the ten agency matters is about agents that is the foreign state says these are our actions which is exactly what happened in the southern district of new york case the mariah case israel came in and said this guy who is our former official is still kind of active in doing black ops for us on the scope of their of their officials in their official capacity because they for the sexual in you stephanie samatar had moved to the united states and was resident in the united states at th time of the suit the united states said a major principle in not extending immunity is that for an official is that they are a resident of the united states and that we actually reciprocity they are subject south that that that immunity of the official exists for the benefit of the state we recognize that none the less and that's the key word in the use a statement of mr over viruses yes there was no no established government there and that was the other principle on which the non immunity determination rested in that case well if you look at the subsequent history of that case as we lay out in our brief when there was a recognized government and the united states that was that government and that government said we're not we're not going to knock on a certain unity the u s said well residence that matters we still sta a government that doesn't exist we have a government standing on the sidelines governor who hasn't gone the state department hasn't asked for immunity and we have u s residents who are claiming immunity on their behalf that princip immunity that is separate from that doesn't the futurist i mean we know that from our body the whole line and i'll take i'll take that judge i understand but what we're trying to get it right i mean that's our job and so in some sense it seems like the st case presenting a particular kind of facts an area like a non official non employees no claimed private contractor it seems like well there's a new unity issue bound up in there there's immunity claim and then it seems like after if we were to so hold then it would  become clear there is no immunity there therefore no you know leg up to the court of appeals for purposes of a collateral murder appeal but that seems like that can't be right that the questions or the st impression aspect of the question can be the ticket to the court of appeals that then is used up well i guess i guess the question is how  the collateral order analysis and we think we could win on that but but you know if you say well it's sustainable and colorful we you know we we still  that the nature of and assertion the nature of an assertion by a mere agent of a for the sovereign who has no contract no nothing but a contractual relationship with with the foreign country just doesn't rise to the level of of a substantial public interest which i think not your favorite argument about our position and the garrote may do have that relations of direction by conor but  eliot broady as a problem to be dealt with these defendants were deciding which packets of information went to which newspapers that's our allegation the direction we have not alleged direction by her we've alleged that the stuff has been done on behalf of and in complicity with connor well we've alleged that these guys have had an enormous amount of discretion in the how to carry out this point you know go after elliot rodger that's a direction ok maybe but even there it was mr mullen that said we have to go after elliot brody so factually speaking i don't i don't buy into the notion that  omar the same question to this statement as a general rule that is for non official non foreign government officials claiming to be asian of  the foreign government that a necessary alone not conclude necessarily conclusive requirement for any assertion of immunity is that the foreign government communicate to the state department that i invoking on behalf of these individuals it's immunity your honor i mean that that's that's a predicate to our position i mean i think that's absolutely correct absent cutter absent cutter's about absent cutter ownership of these that leaves those yes they were fire engines and the reason the reason i formulate it that way is that one of the things that we're trying to do and this argument back and forth really reflects it is to see what impact either giving immunity for not giving immunity would have on the foreign relations of the united states with the country additional and you really can't know that when i mean we're just guessing and we're trying to make up some rule of law that we'd zap the cases that don't have an impact to from the cases that do but the easiest way to do that is just make it a prerequisite that the foreign government has to communicate to the state department on behalf of the individuals and if the government doesn't they don't get immunity so when when you're on or when there is i agree with that what state has said is when there are official when there is someone had a contract that said in terms you know we believe that in this activity you're acting as our agents including for purposes of any immunity that agree with said just the opposite but you're suggesting well there might be some objective evidence yet outside but i think i think for the reason the judge randolph  suggesting they there is no wimp that you just can't know what the foreign affairs implication is whether the state isn't stepping up but but again under under either standard whether it's you you the there is no about these are these are black i mean what state is going to come into a court and said yes these guys were our hackers and they were you know they were doing all of this on our behalf they understand that if their operatives are caught in a foreign state now those operatives are basically on their own i mean the cia does what it can behind the scenes to bring them in you know to get them back but the united states operates at its own risk backed off of it a little bit later in response to some other questions so maybe i can think of a more precise way to ask the question with regard to the context of this  case are each of the four defendants are you representing that each of the four defendants are agents of cutter i guess the answer here i don't mean to see a piece of his it depends as to what i mean with respect to what was present or sparrow and and the lobbying work they were doing they were agents of cutter what has been alleged is that they were also agents in a in a hacking registered under fair and for the entire time if i do you represent that for the entire time in question each of the defendants or agents of cut  your i don't remember the specific timing of the fair registrations for all of the powers but i agree with you that the complaint mentioned something about that i just i just don't i don't know the specific dates i mean covered by the complaint and without regard to whether they were registered under fair or not do you represent that each of the defendants was an agent of cutter yes but what i'm trying to say your honor is just that i'm for you to assert foreign sovereign immunity without representing it as it is necessary but not sufficient argument that with regard to the time period  the fi so that's true and as far as federal or foreign officials that may be true but we're not talking about either one of those categories of people we're talking about people who are even more remote in other words  contractual asians but but you know that's why i disagree with you respectfully because they the established policy the common law is that it's not the status it's not them as officials it's that agents of the form sobber are entitled decided in their discretion how to carry out the general remit and this precise means in the precise targeting was not the directives of cutter two things are st of all i already read this but but this is from i hope you find dirt you know discredit this guy see a later and if i would if i did that to you know my intern i'm a newspaper editor just my internet go find and the internet goes and commits criminal activit that's the level of specificity right here the specificity is disseminate hacked materials that he decided to do it to the wall street journal and not the washington post or whatever it is eleven happened that's that's besides the point because what