It is called In re Grand Jury Subpoena No. 18-3071 and it just might be the first ruling on an issue in the investigation of Special Counsel Robert Mueller by the Supreme Court. The U.S. Court of Appeals for the D.C. Circuit recently ruled on the matter under seal involving a corporation presumably owned by a foreign government. The corporation lost in its bid to quash the subpoena under the protections of the Foreign Sovereign Immunities Act. The D.C. Circuit imposed a daily fine, which was enjoined by Chief Justice John Roberts on Sunday night. While not a ruling on the merit, it could be a historical moment as the first Mueller matter to make it to the Court.
Roberts ordered the Department of Justice to submit a response to the foreign company’s application by Dec. 31. It was the correct move since the issue of the scope of the law remains debatable. The administrative stay will afford the corporation a right to appeal without the penalty of a large daily running fine.
The framing of the case remains curious due to the involvement of a grand jury. Under Rule 6(e), grand jury information is non-public and its disclosure can for certain parties — like prosecutors and grand jurors — be a crime. It is rather foolish here since the foreign corporation knows about the investigation and the information being sought by prosecutors. The secrecy at most would keep third parties (and potential targets) from knowing about the investigation (which seems unlikely at this point). Nevertheless, it will continue as a sealed matter, though the court can release summary or redacted information at its own discretion.
The case has moved through the federal courts at an unusual clip. Very few disputes reach the Supreme Court just four months after they arose in a trial court, as is true here.