Open Society Justice Initiative v. Trump

Background

President Donald J. Trump issued Executive Order 13,928 on June 11, 2020. The order authorized sanctions against certain people associated with the International Criminal Court (ICC), including restrictions on property and services involving designated people. The Office of Foreign Assets Control issued implementing regulations. Secretary of State Michael R. Pompeo designated ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko under the order.

Open Society Justice Initiative (OSJI) and Diane Marie Amann, Milena Sterio, Margaret deGuzman, and Gabor Rona alleged that the order and regulations interfered with their work involving the ICC. Their described activities included meetings, advice, education, training, research, presentations, and supportive briefs. They asserted claims under the First and Fifth Amendments and argued that the order and regulations exceeded the authority granted by the International Emergency Economic Powers Act (IEEPA). They sought declaratory and injunctive relief.

The plaintiffs moved for a preliminary injunction. A preliminary injunction is temporary relief issued before a final judgment when the moving party shows, among other things, likely success on the merits, likely irreparable harm, and that the balance of equities and public interest favor relief.

Rulings on Ripeness and Designation

The court held that plaintiffs’ claims concerning possible designation under the executive order were not ripe. Designation required a specific and discretionary decision by executive officials, and the court found that plaintiffs’ fear of designation was speculative rather than supported by a credible imminent threat. The court therefore concluded that plaintiffs were unlikely to establish standing or succeed on that part of their claims.

The court also held that the plaintiffs’ challenge to IEEPA’s “informational materials” exception was not ripe. Although the court stated that imposing IEEPA penalties on conduct covered by the exception would exceed the government’s authority, it found no adequate basis at that point to conclude that the Office of Foreign Assets Control intended to do so. The court declined to address the plaintiffs’ Administrative Procedure Act claim because they had not developed that argument in their opening brief.

First Amendment Claim

The court concluded that plaintiffs were likely to succeed on their First Amendment claim to the extent they were vulnerable to IEEPA penalties. It found that the plaintiffs’ intended meetings, presentations, advice, training, research, and supportive amicus briefs likely constituted “services” that directly or indirectly benefited Bensouda or Mochochoko and therefore were likely restricted by the order and regulations.

The court treated the restrictions as content-based because they depended on whether speech benefited designated individuals. Applying strict scrutiny—the demanding constitutional test requiring the government to show that a restriction serves a compelling interest and is narrowly tailored—the court accepted the government’s asserted interest in protecting United States and allied personnel from ICC investigations and prosecutions. But it found the restrictions insufficiently tailored because they covered speech benefiting the designated officials without requiring a connection to the ICC’s Afghanistan investigation or to the government’s stated objective.

The court also found that the distinction between supporting the ICC Office of the Prosecutor and supporting Bensouda was practically illusory because Bensouda headed that office and oversaw its investigations. The court further found that the government had not shown how a proposed licensing system would adequately protect speech. It noted that the plaintiffs would likely prevail even under the less demanding intermediate-scrutiny standard.

Fifth Amendment Claim

The plaintiffs argued that terms such as “foreign person,” “materially assisted,” “material support,” and “services to or in support of” were unconstitutionally vague. The court concluded that plaintiffs were unlikely to succeed because their lack of a credible threat of designation meant they were unlikely to establish an injury from the alleged vagueness of the designation criteria. The court distinguished those terms from provisions concerning conduct that could trigger IEEPA penalties, which plaintiffs had not challenged as vague.

Irreparable Harm and Public Interest

The court found that plaintiffs had shown an actual chilling effect: the threat of IEEPA enforcement had caused them to stop or limit speech and other activities involving the ICC. Because the challenged rules directly limited speech, the court presumed irreparable harm. It also concluded that the balance of equities favored plaintiffs and that protecting First Amendment rights served the public interest, despite the government’s asserted national-security and foreign-policy interests.

Disposition

The court granted plaintiffs’ motion for a preliminary injunction in part. It enjoined the defendants from enforcing IEEPA’s civil or criminal penalty provisions against the plaintiffs for conduct specifically addressed in the complaint and the opinion, to the extent that the conduct was alleged to violate Executive Order 13,928. The order did not grant relief against possible designation, and it did not resolve the plaintiffs’ claims with a final judgment on the merits.