Chief Justice John Roberts has placed the Supreme Court in the middle of a dispute largely hidden from the public over documents being sought by a federal grand jury from a company owned by a foreign country.
Roberts issued an order Sunday night temporarily halting enforcement of a district court's contempt order against the company, as well as penalties that were accruing daily against the company for failing to turn over the subpoenaed documents, in response to a Saturday request from the company.
The dispute has been linked to special counsel Robert Mueller's office, though Mueller's office has not acknowledged that it relates to the special counsel's work and no public filings have named the office. Grand jury proceedings are generally secret, under federal rules, and challenges to grand jury actions often are therefore secret as well. Nonetheless, reporting by Politico has connected the dispute to the special counsel — resulting in high-profile attention on the matter, on which next to no public information is available.
On Saturday afternoon, the company, which also has not been named in any public filings, asked the Supreme Court to halt enforcement of the lower court's orders and to allow it to file the Supreme Court request under seal.
The filing, in an application submitted to Roberts, is merely noted by a one-sentence entry on the Supreme Court's docket and is not available to the public. It followed multiple apparent attempts to get the US Court of Appeals for the DC Circuit to halt enforcement of the subpoena. On Friday evening, the DC Circuit denied the most recent of those requests.
In Sunday evening's order, Roberts issued the stay pending a response by noon on Dec. 31 and a further order from Roberts or the full Supreme Court.
The little that is known about the case came in a Dec. 18 order from the DC Circuit affirming the district court's contempt order.
The three-page judgment detailed the dispute in broad terms without naming the prosecutor, company, or foreign country involved. The primary question the court addressed was whether the company could invoke the protections of the Foreign Sovereign Immunities Act to prevent it from having to comply with the grand jury's subpoena. In resolving the dispute, the DC Circuit agreed with the district court that the act's commercial exception applies — leaving the corporation subject to the court's jurisdiction and therefore subject to any orders to turn over the sought documents.
Specifically, the DC Circuit held that "the government" — again, the court did not state which federal office is prosecuting the matter — showed "a reasonable probability" that the matter "'is based upon ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere' and that the 'act cause[d] a direct effect in the United States.'"
The subpoena challenge was brought to the district court on Aug. 16, according to DC Circuit records, and the district court issued its judgment in the challenge on Oct. 5. The company filed a notice that it was appealing the matter to the DC Circuit on Oct. 9. (That was the second attempted appeal to the DC Circuit. An earlier attempt, filed in September, was dismissed by the DC Circuit because the court stated that it didn't have jurisdiction.)
That, along with some other minimal information, is all that is known about the company's challenge to the subpoena. The DC Circuit's arguments in the case were not only held in a sealed courtroom but reporters and others were removed from the entire floor of the courthouse where the arguments were being held — an unusual level of secrecy that has only raised interest in the dispute even more.
Now at the Supreme Court, the government will respond to the company's request — likely under seal as well — and the contempt order will remain stayed in the meantime.
Once that filing is submitted, Roberts will likely refer the company's request to the full Supreme Court for resolution. Given that this request is merely an application for a stay of a lower court's order — and not a request for the court to grant and hear a full case on the question — the court typically would not hold oral arguments in the matter.
Due to the high court's handling of the matter thus far, moreover, it is unclear what will be publicly shared about the court's handling of or resolution of the case. But Roberts's Sunday order at least suggests that the chief justice is interested in providing some information publicly about the court's actions in the dispute.