Court Rejects Subpoena Request from Turkey Seeking Records on Gülen Movement Member, Allegedly for Turkish Financial Crime Prosecution
"[T]he sheer breadth of the discovery sought in Türkiye's Application, considered in light of the colorable allegations of political motivation presented in support of Turkyolu's motion, weighs heavily against the Application at this time."
A short excerpt from Friday's long decision by Judge John Cronan (S.D.N.Y.) in In re Application of the Republic of Türkiye:
Cevdet Turkyolu, a member of the faith-based Gülen movement, is one of several targets of a Turkish money-laundering investigation and insider-trading prosecution. Pursuant to an application under 28 U.S.C. § 1782 that the Court approved late last year, the Republic of Türkiye served subpoenas on two American banks seeking financial records and other documents pertaining to Turkyolu and four others that Türkiye claims will advance those criminal matters. The banks later produced a number of records, which Türkiye then provided in support of another (currently pending) discovery application under Section 1782.
Turkyolu now moves to quash both subpoenas and to vacate the Court's prior Order granting Türkiye's application. According to Turkyolu, Türkiye's application does not represent a bona fide attempt to seek evidence relevant to the criminal matters involving him, but is instead part of a years-long campaign of harassment and retaliation against the Turkish government's political enemies and the Gülen movement in particular. For that reason, Turkyolu says, Türkiye's application cannot satisfy Section 1782's requirement that the discovery sought be "for use" in a foreign proceeding. And even setting that issue aside, Turkyolu maintains that Türkiye's application is unduly intrusive and made in bad faith, justifying denial of the application on discretionary grounds. Turkyolu also contends that Türkiye did not serve the subpoenas in compliance with Federal Rule of Civil Procedure 45, presenting an independent basis to quash.
For the following reasons, the Court agrees that Türkiye failed to comply with Rule 45 in serving the subpoenas and that the materials submitted by Türkiye in support of its application—a three-page declaration and a copy of a 2017 insider-trading indictment—do not adequately support its request for discovery in light of Turkyolu's colorable allegations of improper motive. The Court therefore grants Turkyolu's motion to quash the subpoenas, vacates its prior Order granting Türkiye's application, and directs the parties to submit supplemental briefing addressing the appropriate remedy regarding the documents that Türkiye has already obtained pursuant to the quashed subpoenas….
The court offers many arguments in support of its conclusion, but here's an excerpt as to just one:
[T]he sheer breadth of the discovery sought in Türkiye's Application, considered in light of the colorable allegations of political motivation presented in support of Turkyolu's motion, weighs heavily against the Application at this time.
Specifically, the Court agrees with Turkyolu that the categories of documents covered by the Subpoenas "are extremely broad and … are suggestive of a fishing expedition and, perhaps, a purpose beyond simply investigating potential money laundering in [Türkiye]." For instance, the Subpoenas seek "[a]ll documents relating to financial transactions made in U.S. dollars to, from, and through accounts held by [Turkyolu and the other Turkish defendants]" from December 18, 2002, to the present. That request includes "all bank statements and any other records showing transfer of money and any other financial instrument, including but not limited to checks, wire transfers, or any other method of transfer."
Yet the 2017 Indictment only alleges criminal conduct taking place during a few months in early 2014, and as discussed [above], the status of that prosecution is uncertain at best. Plus, Mr. Kaçmaz's declaration "provides what can only be described as the most minimal information" connecting Turkyolu's alleged money-laundering activity and the 2017 Indictment to the financial records sought by the Subpoenas. The Subpoenas also seek "[a]ll documents and communications relating to [Turkyolu and the other Turkish defendants], including all documents and communications relating to potential fraud, money laundering or suspicious activity related to them individually or collectively." But the Subpoenas do not define what they mean by "suspicious activity," a vague term that potentially covers a far broader swath of materials than those relevant to the insider-trading prosecution and money-laundering investigation identified in Mr. Kaçmaz's declaration.
The breadth of Türkiye's Application, the unclear status of the 2017 insider-trading prosecution, and the vague descriptions of the money-laundering investigation are particularly troubling in light of the political context of this case. Türkiye does not dispute that Turkyolu is a longtime member of the Gülen movement. Nor has it presented any factual challenge to Turkyolu's allegations concerning the Turkish government's efforts to retaliate, for political reasons, against members of the Gülen movement—which the Turkish government has branded the Fetullah Terrorist Organization, or "FETÖ" for short. Indeed, as one federal judge in the Southern District of Florida has found, Türkiye "has engaged in an open campaign of repression against individuals with perceived or actual ties to FETÖ," and "[t]he Turkish regime has frequently targeted individuals—including U.S. nationals—for prosecution on the basis of vindictive rumors and secret testimony." And as recently as July 2024, more than 140 members of Congress expressed concern in a letter addressed to President Joseph R. Biden regarding the Turkish government's "transnational repression campaign … against its critics abroad," specifically highlighting Türkiye's efforts to retaliate against individuals associated with the Gülen movement. In sum, the mismatch between the breadth of the discovery sought by Türkiye and the vagueness of the materials presented in support of the Application, considered in light of the attendant political circumstances, creates an unacceptable risk that the discovery in this matter is being sought for improper reasons.
Even so, this Court stops short of definitively ruling that Türkiye's Application does not "reflect[ ] a good faith effort to elicit evidence that has probative value in a pending Turkish criminal investigation" and prosecution. It should also go without saying that the mere fact that Turkyolu is a member of the Gülen movement does not mean that he is immune from Turkish criminal prosecution, or that Türkiye is categorically precluded from seeking the aid of U.S. federal courts under Section 1782 in holding him accountable under Turkish law. See In re Application of Republic of Turkey (S.D. Ohio 2023) (granting in part a Section 1782 application filed by Türkiye seeking discovery for use in a money-laundering investigation).
Instead, the Court merely reaffirms that it cannot abdicate its responsibility to ensure that Section 1782 is not wielded as a tool of political repression. And to that end, the need to prevent Section 1782 from being used to harass political opponents weighs strongly against approval of the Application as currently constituted….
The defendant is still Turkey to me, not Türkiye, just as I call certain other countries Germany, Russia, and Greece, rather than Deutschland, Rossiya, and Ellas (or Hellada or the Hellenic Republic). But I take it that the judge decided to use the name given by Turkey as a party.