Mueller's magical mystery subpoena scores unanimous win at DC Circuit

At least we know now who didn’t get named in the mystery subpoena from Robert Mueller. Just four days after hearing an appeal from a “foreign company” subpoenaed by Mueller in the special counsel probe into the 2016 election, the DC Circuit panel unanimously upheld it. CNN reported last night that the opinion didn’t disclose the identity of the target, but did disclose its status as a foreign-government-based company:

So it wasn’t Donald Trump or Mike Pence, as many (including myself) had predicted. But who was it, and why does it merit such secrecy in US judicial proceedings? The opinion doesn’t shed light on those questions, although the argument used in the attempt to quash the subpoena rests in part on the fact that the corporation is state-owned:

The Grand Jury seeks information from a corporation (“the Corporation”) owned by Country A. After receiving a subpoena for that information, the Corporation moved to quash claiming (1) that it is immune under the Foreign Sovereign Immunities Act (“the Act”) and (2) that the subpoena is unenforceable as unreasonable and oppressive under Federal Rule of Criminal Procedure 17(c)(2) because it would require the Corporation to violate Country A’s domestic law. The district court denied the motion. On the sovereign immunity issue, the court assumed that immunity applied, but concluded that it had subject-matter jurisdiction under 18 U.S.C. § 3231 and that the subpoena fell within the Act’s exception for commercial activities. The court then rejected the claim that Country A’s law barred compliance. When the Corporation failed to produce the requested information, the court held the Corporation in contempt, imposing a fixed monetary penalty to increase each day the Corporation fails to comply. The Corporation appealed. Reviewing the legal questions presented de novo, In re Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998), we affirm.

What foreign-owned firm with commercial interests in the US with any connection to the Russia probe warrants those security precautions?  That might be tough to narrow down. The first thought would be the Internet Research Agency, except that it’s not supposed to be foreign-government-owned; it’s supposedly independent of the Russian government. Also, why would US courts provide so much secrecy for any Russian-owned firm to the extent that it would clear the entire floor to keep people from identifying the firm’s attorneys?

Whatever it is, it has deep pockets. It can’t be cheap fighting a subpoena under these conditions for months, and the order notes that they’re paying daily penalties for contempt. It has to have something of high interest for Mueller too, for him to spend this much time and effort to get to the information and testimony his investigators believe they can retrieve. CNN’s Shimon Prokupecz speculates that it might be a financial institution through which money got laundered in whatever interference operations took place. That would certainly explain the deep pockets. If Mueller’s going after Trump’s business dealings — which has been a red line for Trump since Mueller got appointed — that could fit the secrecy and the hardline fight.

There are other possibilities, too. Perhaps it’s a telecom, which could have a decent argument on restrictions on user data, even if two courts now have rejected it. A telecom might provide documentary corroboration of communications necessary to lay out a case against suspects in the probe — not necessarily Trump himself, but others, perhaps. But who knows?

We may find the answers to these questions if the foreign company has to make an appearance at the grand jury. With the parameters we do have now, though, I’d bet on a detour through the Supreme Court first.

Update: Added clarification in two places that I mean “foreign-government-owned.”

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David Strom 1:31 PM on October 04, 2022