UPDATE: Just a few hours after the unnamed corporation appealed to the Supreme Court, the justices denied the company’s request to put the lower court’s order requiring it to provide the information or pay penalties on hold. The justices also vacated the temporary stay that Chief Justice John Roberts had imposed on December 23. There were no recorded dissents from the order, and no explanation for the ruling. However, one factor in the decision whether to grant such a request is whether there is a “reasonable probability” that at least four justices will vote to grant review, and another is whether there is a “fair prospect” that at least five justices will agree that the decision below was wrong. Taken together, these factors suggest that the unidentified corporation could face an uphill battle in getting the Supreme Court to take up its case and reverse the D.C. Circuit’s decision.
The unidentified corporation at the center of a clash over a grand jury subpoena that is widely believed to be connected to Special Counsel Robert Mueller’s investigation into interference in the 2016 election returned to the Supreme Court today. The company is seeking to appeal a lower-court ruling holding it in contempt for failing to comply with a subpoena requesting information. On December 23, Chief Justice John Roberts put a temporary hold on the lower court’s order requiring the company to provide the information or pay penalties. Today’s filing – which, like others in the dispute, was made under seal – indicates that the company either is asking or plans to ask the justices to review the dispute over the subpoena on the merits, eventually making redacted copies of the filing available for the public.
Although the filings in the Supreme Court are not public, a December 18 decision by the U.S. Court of Appeals for the District of Columbia Circuit reveals that the grand jury is seeking information from the corporation, which is owned by an unidentified foreign country. The corporation argued in the lower courts that it did not need to provide the information because it is immune from lawsuits in U.S. courts under the federal Foreign Sovereign Immunities Act and because doing so would cause it to violate the laws of its own country. The D.C. Circuit rejected both of those arguments, so now the company has asked (or soon plans to ask) the Supreme Court to weigh in.
Today’s filing came in the form of a motion seeking permission to take the unusual step of filing a petition for review under seal. The motion will go to the full court for consideration by all nine justices.
Petitions for review filed under seal are highly unusual but not unprecedented – for example, Djamel Ameziane, an Algerian who lived in Canada for several years, filed a petition under seal in 2010, apparently challenging his detention at Guantanamo Bay, Cuba. But as Tony Mauro reported for the National Law Journal last month, if the justices were to grant review, history suggests that they are unlikely to hold closed-door hearings in the case.
This post was originally published at Howe on the Court.
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