An appeals court on Tuesday publicly posted, with redactions, its opinion upholding a subpoena believed to be linked to special counsel Robert Mueller’s investigation that a foreign-owned company has sought to quash. That court had rejected the unknown company’s argument, as was previously indicated in a vaguely-worded judgement last month.
The opinion handed down Tuesday is a per curium opinion — meaning coming from the whole panel of judges, rather than written by a specific judge. Appellate Judge Stephen Williams also wrote a concurring opinion.
The opinion follows the court’s judgement that subpoena falls within in an exception in the Foreign Sovereign Immunities Act, which the company attempted to use in seeking the subpoena be quashed.
The opinion provides new hints about the company and how the case evolved. The subpoena was “served on a U.S. office of a foreign corporation” and the prosecutors argued in the case that the corporation does “considerable business” in the U.S. The company tried to argue in the case that it did not have documents responsive to the subpoena.
The opinion also gives additional insight into the arguments the company made in court and provides information about the sealed filings in the case that appeared on the court’s docket.
For instance, the company filed a “new declaration, this time from a regulatory body of Country A,” after the scheduled briefing was completed in the case, in the hopes to address criticisms raised by a lower court and by prosecutors in the case about declarations filed by the company in the case.
The court considered the filing and still found it failed “to cure the crucial deficiencies of the original declarations.”
The opinion also references a statement filed by the company that the court found to be “clearly prepared in response to this litigation and at a very late hour” and the court was left “unpersuaded that the statement accurately reflects how Country A’s courts would interpret the relevant provision.”
The opinion also confirms that the first time the company appealed the case to the appeals court, the appeal was rejected because the company had not yet been held in contempt by the lower court judge who initially ordered compliance with the subpoena.
According to the opinion, the corporation “remains dissatisfied” with the rejection of that first appeal, because it claimed “out of respect for its foreign sovereign status, we should not have adhered to our usual rule requiring a contempt order before taking appellate jurisdiction over denial of a motion to quash.”
The appeals court considered that issue moot, since the lower court eventually held the corporation in contempt. In doing so, the district court ordered a fine of $50,000 per day for ever day the company continues to resist the subpoena, but temporarily halted the accrual of that fine while the compliance order was appealed.
The accrual of that fine was also halted by Supreme Court Chief Justice John Roberts when the company appealed the appeal court’s initial judgement last month. On Tuesday, the Supreme Court said it was lifting the order halting the fine.
