By Robert Willmann
A sealed and secret court case about a grand jury subpoena made its way from the federal district court (trial court) to the Court of Appeals for the District of Columbia Circuit. Now the supreme court has opened its door slightly and, after receiving some papers, has whispered back that it is thinking about whether it will hear the case. The current deadline for a response is Monday at High Noon on New Year's Eve. However, one was filed by the government (possibly through the "special counsel" Robert Mueller group) on Friday, 28 December–
This case started out anonymously in a federal district court in Washington D.C. At some point, when it was at the court of appeals, a reporter or staffer for the Politico website was in the appellate court clerk's office when a lawyer came in, and was overheard asking for a copy of the special counsel's latest sealed filing. When approached by the Politico person, the lawyer refused to give his name or identify his client . This started an ongoing rumor that a closed court proceeding was going on that might have to do with the Robert Mueller investigation about the Russian government and the Trump presidential campaign.
When the matter was appealed to the D.C. Circuit Court of Appeals, that court clerk's docket sheet was public, although it consisted mostly of the word "sealed". Backtracking from it to the district clerk's file, the trial court's docket sheet itself was secret, containing only the case number, the name "Sealed vs. Sealed", and a statement that the case is not available to the public. But a few clues appeared in the court of appeals docket sheet, giving us a case number in the district court (1:18-gj-00041-BAH), the judge presiding over the case there (Beryl A. Howell), the fact that it involves a grand jury matter (the 'gj' in the case number), and the day the proceeding began in the trial court (16 August 2018) . —
The appeal to the D.C. Circuit began and was officially filed on 10 October 2018. As the docket sheet shows, written arguments (briefs) were filed by both sides. Oral argument to the court was set for 14 December 2018, and reporters actually started to do their job, staking out the courthouse that day. But the fifth floor of the building was cleared out, and the lawyers involved sneaked in and out of the courthouse for the hearing without being detected .
A decision was delivered four days later in the form of a three-page judgment, written in a way to obscure as much as possible who was involved and the facts underlying the issues–
Challenges to grand jury subpoenas are rarely successful, because the long-standing rationale is that "a grand jury is entitled to every man's evidence". A grand jury is not just a small group of people meeting during a specified time period to hear cases behind closed doors presented unilaterally by the government prosecutor, and then deciding whether to issue a formal written criminal charge in the matter. They also are a legally authorized way to discover information and evidence in a situation that might involve a criminal violation. In civil lawsuits, both parties can make use of legally authorized ways to discover evidence in addition to their own private investigation: they can send written questions to the other parties to the lawsuit, make a request for documents and other tangible things, make a request to the other side to admit certain facts, make a request to enter onto land to inspect it, question other parties and witnesses before a court reporter in a private setting outside of the courthouse in a session called a deposition, and so forth. But formal information gathering in criminal cases is handled differently. If the sheriff, police department, or law enforcement agency cannot get enough information by the voluntary questioning of witnesses and suspects, and executing search warrants, a grand jury can be used by the prosecuting attorneys to issue subpoenas requiring witnesses to appear or produce documents and tangible things. Federal grand juries are especially powerful because their subpoenas are nationwide in scope.
As you can see by reading the court of appeals judgment and opinion, there are interesting issues about the circumstances in which a corporation from a foreign country is subject to the authority of U.S. courts and can be compelled to give evidence before a grand jury, apart from the tantalizing possiblity that this case involves the Mueller group and president Trump. In addition, the case has a complicating twist because the foreign corporation is also owned by a foreign country's government. This is how an issue discussed in the judgment involves the concept that a foreign "sovereign" or country can be immune from criminal prosecution and from the authority of U.S. courts to hear and decide a particular matter (a court's "jurisdiction"). The main language is found in Title 28, U.S. Code, sections 1604, 1605, 1605A, 1605B, 1606, and 1607–
After the court of appeals ruled against the foreign corporation on 18 December, the corporation decided to ask the U.S. Supreme Court to hear the case, and filed a sealed application on 22 December, as shown in the citation above to the supreme court's docket entries. The next day, the supreme court made a "stay order" to suspend enforcement of the trial court's order holding the coporation in contempt for not complying, and suspended the amounts of money ordered to accrue daily until the company obeyed the court order and subpoena.
Whether the case involves the Mueller group and Trump remains to be seen.
In almost all instances, the U.S. Supreme Court does not have to hear and decide a case unless it wants to. The lower courts of appeals are the ones that have to decide a case appealed to them, which is what happened here. Since the supreme court set a deadline of noon on 31 December for the government to file a response, which it filed on the 28th, a decision could be made tomorrow (Monday) on whether the supreme court will take the case, but usually they take some time and can even have a conference among themselves before deciding. If they accept it, they have a new problem, which is how to handle the secret nature of the appeal and the grand jury process.
In 1971, the supreme court decided the "Pentagon Papers" case, regarding intended publication of internal governmental writings about policy-making and the Vietnam War. Underlying material was not disclosed while the case was going on, but the parties were known: the New York Times and Washington Post newspapers and the federal government. But in this instance, grand jury activity exists, and questions such as whether the suspect being investigated knows the corporation is being asked to turn over information, or whether the foreign government-owned corporation is itself the target of the investigation, as well as other factors, can affect what will be publicly disclosed if the supreme court hears the case. The problem of what information in this case should be disclosed will be just as important as the subject matter and substance of the case itself.
 I deleted two pages of the original pdf file format of the docket sheet because one page contained a duplicate entry, and the last page had the electronic filing system box.
The photograph of the supreme court building is from the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division.