DOJ Explains To SCOTUS Why It Should Not Take Up Mueller Grand Jury Case

Jon Elswick/AP

The Justice Department this week argued that the Supreme Court should not take up the secret grand jury case linked to special counsel Robert Mueller.

The filing does not reveal much — if anything — new about the mystery foreign-state-owned company that is resisting a grand jury subpoena or what information the grand jury is seeking from it. Instead, it focuses on the legal arguments in the dispute.

The company, which has brought the case to the Supreme Court, has claimed that it has immunity from the subpoena and from any sanctions imposed for defying it under the Foreign Sovereign Immunities Act. Lower courts have rejected that argument, noting that regardless of whether the law grants immunity in a criminal matter, there is an exception for commercial activity that applies in this situation. The company has been held in contempt for continuing to defy the subpoena and faces steep fines.

The Justice Department, in a filing signed by Solicitor General Noel Francisco, said Thursday that the lower courts’ decisions were correct and didn’t warrant the Supreme Court’s full review.

The existence of the case — and its possible links to Mueller — first surfaced publicly last October. But proceedings remained highly secretive and mostly under seal for several more weeks. The decision in December by an appeals court upholding the subpoena and a lower court’s contempt finding was the first to start providing some concrete details about the case. Only recently was it officially confirmed that Mueller’s team was involved.

Friday’s filing reiterates some of those previously known details: The company is a “commercial enterprise doing business in the United States and owned by a foreign government” and the subpoena it is resisting “required the production of documents.”

The company appealed the case to the Supreme Court in late December. The court declined to halt the $50,000-per-day fine the company faces for not complying with the subpoena, but the justices are still considering taking up the case on the merits.  In the meantime, the Reporter’s Committee for Freedom of the Press has sought to intervene to get more of the case’s filings unsealed.

The group has had some success. But since the Supreme Court appeal, it appears — according to sealed docket entries — some other issues in the proceedings are continuing in secret. Friday’s DOJ filing alluded to those still sealed proceedings in a footnote:

“Additional procedural developments remain under seal. The government has filed a motion for leave to submit a supplemental sealed brief in opposition to apprise the Court of those developments.”

Read the full filing here.

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