Supreme Court calls time out on Mueller's magical mystery subpoena

It’s not a decision, or even a grant of certiorari, but the mystery corporation subpoenaed by Robert Mueller won a momentary victory for its pocketbook at the Supreme Court. Yesterday, Chief Justice John Roberts ordered the Department of Justice to respond by New Years Eve to the appeal from the target from a unanimous DC Circuit court decision upholding the subpoena. While they wait, the order stops the clock on fines imposed on the company for non-compliance:


The Supreme Court is putting on hold a contempt order against an unnamed company fighting a subpoena in a mystery case with possible ties to special counsel Robert Mueller.

A lower court last week upheld the subpoena after the company, which is owned by a foreign government, argued that it was immune from criminal proceedings under the Foreign Sovereign Immunities Act and that the subpoena was unenforceable because it would require “the Corporation” to violate “Country A’s” domestic law.

Chief Justice John Roberts on Sunday halted the contempt order against the company, which included a $5,000-a-week fine.

That’s not exactly a backbreaking sum, but it’s at least an annoyance. The company’s legal bills are probably running five grand a week at this point, especially given the novelties of this case. CNN’s legal analyst reports that the Supreme Court has never taken on a case where the entire record is sealed:

“So far as we know, the Court has never had a sealed argument before all nine justices,” said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law. “They can keep parts of the record and briefing sealed, and often do, such as in cases implicating trade secrets. But there’s no procedure in the court’s rules for having the whole case briefed, argued and decided under seal. The only times I’m aware of in which parties tried it, the court denied certiorari,” or the review of the case.


That’s not all that’s unusual, either. This challenge has gone through the court system at breakneck speed. What exactly is so pressing that this went from subpoena in the circuit court to the Supreme Court in four months? It’s not the only subpoena challenge against Mueller. Roger Stone’s associate Andrew Miller challenged his subpoena back in July, and that challenge is only now under consideration at the DC Circuit Court of Appeals. The subject matter rather than the legal structure seems to be motivating both the seal and the speed.

If we knew who the target was, perhaps that might explain all of the above. So far, though, we have few clues and a wide range of possibilities:

In one short passage in the three-page decision, the judges describe how they had learned confidentially from prosecutors that they had “reasonable probability” the records requested involved actions that took place outside of the United States but directly affected the US. Even the company was not informed of what prosecutors had on the issue, because revealing it to the company would have violated the secrecy of the grand jury investigation, the judges said.

The range of possibilities on the identity of the company is vast. The company could be anything from a sovereign-owned bank to a state-backed technology or information company. Those types of corporate entities have been frequent recipients of requests for information in Mueller’s investigation.

And though Mueller’s work focused on the ties between the Trump campaign and Russia’s efforts to interfere in the 2016 presidential election, prosecutors have said and CNN has reported that the Mueller team looked at actions related to Turkish, Ukrainian and other foreign government interests.


It’s the first time that the Supreme Court has had an opportunity to weigh in on Mueller’s special counsel probe, CNN also notes. However, they haven’t exactly leaped at the opportunity. They didn’t turn it down cold, but they didn’t rush to grant cert either. That decision will come sometime after the DoJ files its brief in response to the appeal on December 31 — probably very soon after, if the history of this case gives any hint as to its future.

Someone won’t have a very happy New Year, in other words. If the Supreme Court follows the lead of the lower courts or its thin precedent, don’t bet on that someone being Robert Mueller.

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David Strom 5:21 PM on September 22, 2023