A case shrouded in secrecy reached the Supreme Court on Saturday afternoon amid hints that it puts Special Counsel Robert Mueller’s criminal investigation before the Justices for the first time and as a test of the prosecutor’s power to probe overseas activity.
The case involves a dispute between an unidentified U.S. prosecutor and an unidentified business firm that is controlled by a foreign government, with the dispute centering on a subpoena to compel the company to supply information for use by a federal grand jury that is investigating potential crimes “against the laws of the United States.”
If the case does involve the Mueller probe into claims of foreign government influence in the 2016 presidential election and the campaign of President Trump, it could buttress the speculation that the investigation is reaching overseas and is touching financing that came from foreign government sources.
The document sent to the Court Saturday asks Chief Justice John G. Roberts, Jr., or the full Court to issue an order blocking enforcement of the contested subpoena, which was issued by a federal trial judge in Washington, D.C., and was upheld last Tuesday by the U.S. Court of Appeals for the District of Columbia Circuit.
The foreign firm has refused to supply the demanded information, and as a result, has been held to be in contempt of court; a fine has been imposed, with the fine increasing daily if the refusal continues. The company has contended that obeying the subpoena would require it to violate its own nation’s laws, but the federal courts reviewing the case rejected that argument.
While the dockets in the trial court that first approved the subpoena and of the appeals court that upheld it are mostly unavailable to the public, news organizations that have been following the developing dispute have seen signs that the prosecutor involved probably is Special Counsel Mueller. However, those organizations have only vaguer ideas of which company and which country are involved.
The foreign firm involved is identified in one court paper that is publicly available only as “Company A,” but that document contains a further hint about that. The document says explicitly that “that there is no question that the corporation” qualifies as a part of “foreign state” under a U.S. law that gives U.S. courts jurisdiction to handle cases involving some activities of foreign governments if those activities have a direct effect in this country.
That law, the Foreign Sovereign Immunities Act of 1976, generally gives foreign governments or agencies owned or controlled by a foreign government legal immunity to court challenges in the U.S. However, such challenges can go ahead if the foreign entity has engaged in commercial activity that has an effect within the U.S., even if that activity has occurred overseas. Claims of misconduct by official foreign government actions are not allowed, under that law.
In its ruling this week, the D.C. Circuit Court ruled that “Company A” is not entitled to immunity because the activity at issue is commercial in nature, with a potential or actual impact inside the U.S. The Circuit Court also looked at foreign laws that “Company A” said would bar it from supplying the information, and said those laws do not actually do so. “Company A,” the Circuit Court said, “has fallen well short” of proving that point. It added that an attempt by a foreign official to support the company’s claim on that point was not reliable.
Although the document filed Saturday at the Supreme Court is sealed, the unidentified lawyers for “Company A” presumably have begun making the same claims of legal immunity that have so far failed to protect the firm from the subpoena, from the contempt order, and from the escalating fine.
Whether detailed information about this dispute will eventually emerge in public is unknown at this point, mainly because of the usual secrecy that surrounds grand jury activity.
While the Supreme Court generally tries to allow wide public access to papers filed with it in pending cases, it does have the authority – as do the lower federal courts – to maintain secrecy in a given case, when proof of the need for that secrecy is made. A famous case in which the Court made a decision based upon secret filings was the famous “Pentagon Papers” case in 1971, involving the federal government’s failed attempt to stop U.S. newspapers from publishing a secret history of the Vietnam war.
The “Company A” case went first before U.S. District Judge Beryl A. Howell, who as chief judge of that court supervises grand jury activity. She approved the subpoena and imposed the contempt finding and the rising fine on “Company A” after it refused to obey. The firm then appealed to the D.C. Circuit.
In the District Court, the case is titled only “Sealed v. Sealed” and none of the docket entries are open to the public. In the Circuit Court, the case is titled “In re: Grand Jury Subpoena.” The docket at this point includes 39 entries, but only two of those are open to public access: the three-page ruling this week against “Company A” and a brief order putting that ruling into formal effect.
There are hints on the docket that the firm’s lawyers tried unsuccessfully to get the Circuit Court to put its ruling on hold pending an appeal to the Supreme Court.
The secrecy of the case is being guarded so closely that, when the Circuit Court held a closed-door hearing on it, news reporters were barred from even being on the same courthouse floor where the hearing was held – presumably, to keep them from identifying the lawyers as they came and went; those identities probably would have given strong clues of who is involved.
