Yes, and who knows how they’ll vote.
My point is that the immutability of the contract (or anything else on a blockchain) is subject to the consensus maintaining the immutability, and the attacker didn’t factor this in. They can get in a huff about it, but they don’t have any legal/moral legs to stand on.
The actions of miners / other stakeholders (exchanges, wallets, big ETH holders, the ‘economic majority’ etc) doing a hard fork to recover funds would not be illegitimate or wrong as the attacker implies, it would just demonstrate how the system can thwart their theft.
I’ll be very happy if the attacker ends up with 0 ETH 