PGA Tour Argues Nixon Case Should Not Apply to LIV Subpoenas
On Monday, the PGA Tour filed an 15-page brief in the U.S. Court of Appeals for the Ninth Circuit, arguing that the Public Investment Fund of the Kingdom of Saudi Arabia (PIF) and its governor, Saudi minister Yasir Othman Al-Rumayyan, have relied on case precedent in their attempt to claim immunity from subpoenas that doesn’t apply.
The precedent in question includes U.S. v. Nixon, a Supreme Court decision involving opposition by then-President Richard Nixon to a subpoena requiring him to share the Watergate tape recordings.
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As detailed by Sportico, PIF and Al-Rumayyan maintain the Ninth Circuit should consider their appeal of a trial judge’s ruling that they must comply with PGA Tour subpoenas in New York City. PIF and Al-Rumayyan insist the Foreign Sovereign Immunities Act (FSIA), which exempts foreign government officials from U.S. litigation, applies to them. Judge Beth Labson Freeman disagreed, stressing PIF and Al-Rumayyan played important business roles for LIV Golf and FSIA does not exempt commercial activities.
The PGA Tour insists the Ninth Circuit should not even review, let alone side with, PIF and Al-Rumayyan’s appeal. It underscores the general principle that only final judgments by trial courts can be appealed.
Nixon, however, was allowed to appeal a subpoena order (the prosecutor also appealed). Although Nixon lost the appeal, the more important point, PIF and Al-Rumayyan insist, is that his appeal was heard.
The PGA Tour contends the Nixon case is “sui generis,” meaning it is a truly peculiar scenario that is irrelevant in other situations—particularly those involving foreign agents. Back in 1974, the Supreme Court emphasized separation of power and constitutional concerns given that Nixon was President of the United States. The Watergate tapes were also made through a recording system at the White House, the heart of the executive branch.
To further advance its argument, the PGA Tour cites a case involving another president: Ferdinand Marcos, who served as president of the Philippines from 1965 to 1986. The Ninth Circuit declined to grant Marcos a review of a discovery order, even after he invoked the Nixon case. The court reasoned U.S. v. Nixon was unique and Marcos, a former president at the time, held a status “hardly comparable to that of a President of the United States.” The PGA Tour argues “the same undoubtedly is true of PIF.”
If the Ninth Circuit agrees to hear the appeal, the court could take many months, or potentially years, to rule. The current trial date of May 17, 2024, would face a likely postponement.