Chief Justice John Roberts handed down a fairly routine order over the weekend, which temporarily halts a pending case until the rest of his Court has time to consider the matter. Yet, while orders briefly pausing cases are common at the Supreme Court, everything else about this case is bizarre. It involves a mystery company from a mystery country — and is widely believed to involve special counsel Robert Mueller.
The parties to this case, which bears the non-descriptive title In re Grand Jury Subpoena, are an enigma. A lower court order ruling against the mystery company identifies that company only as “the Corporation,” and notes that this corporation is “owned by Country A.”
Nothing in that order mentions Mueller or his team, but on Sunday Politico connected the case to Mueller after one of their reporters “heard a person connected to the appeal request a copy of the special counsel’s latest filing in the case.”
The legal issue in the case involves a grand jury subpoena seeking unknown information from the Mysterious Corporation From Country A. As this company is owned by a foreign nation, it argued that it may ignore this subpoena under the Foreign Sovereign Immunities Act (FSIA), which provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except in certain limited circumstances.
The United States Court of Appeals for the District of Columbia Circuit, however, rejected this argument, holding that there is a “reasonable probability” that the mysterious corporation from Country A’s actions fit within an exception to the FSIA for commercial activity that causes “a direct effect in the United States.”
It also rejected a claim that the mysterious company may avoid the subpoena because complying with it would violate Country A’s law. Though the court did not explain why this proceeding was being kept secret, as a general rule, grand jury proceedings take place under a cloud of secrecy.
Notably, the three-judge panel that reached this conclusion includes two Republican appointees, Judges Thomas Griffith and Stephen Williams.
In his order pausing the case, Chief Justice Roberts said that any penalties against the mystery company are halted “pending receipt of a response, due on or before Monday, December 31, 2018, by noon, and further order of The Chief Justice or of the Court.” After the government provides a response to the mystery company, the full Court will likely hand down an order announcing whether it is extending Roberts’ stay, and potentially whether it will conduct a full hearing on this case.
If the Court does conduct a full, secret proceeding, that will be highly unusual. As law professor Steve Vladeck notes, “so far as we know, #SCOTUS has never in its history conducted plenary review, including oral argument, in a case that remained entirely under seal.”