Chief Justice John G. Roberts, Jr., speaks at Rensselaer Polytech in Troy, N.Y., on April 11, 2017. Photo: Tim Roske

The U.S. Supreme Court on Tuesday restored a contempt order against a state-owned foreign corporation that is refusing to comply with a grand jury subpoena apparently tied to the special counsel’s Russia investigation.

The Supreme Court has not addressed the merits of a decision by the U.S. Court of Appeals for the D.C. Circuit that said the unidentified corporation must comply with the grand jury subpoena.

Court records and public dockets do not reveal the identities of the country, the corporation and the defense lawyers who are defending it. Politico first reported in October the grand jury subpoena fight’s link to Robert Mueller, the special counsel leading the Russia investigation.

Last month, the corporation had filed a sealed application with Chief Justice John Roberts Jr. to pause enforcement of the subpoena. The chief justice imposed a temporary stay to give the government time to respond. Roberts referred the corporation’s application to the full court and the justices denied it without comment Tuesday.

A stay requires five votes of the high court. While the denial of the stay is not a decision on the merits of the corporation’s legal arguments, it is an indication that the petition for certiorari may face an uphill fight. The criteria the justices use in reviewing applications for stays include: a “reasonable probability” that four justices will grant review to the petition; irreparable harm if the stay is denied; and a fair prospect that a majority of justices will conclude upon review that the decision below was wrong

The legal fight at the high court will continue. The unnamed corporation Monday filed a petition for certiorari under seal with redacted parts to be available to the public. The votes of four justices are required to grant review of petitions.

Secrecy has shrouded the case for weeks, as the litigation unfolded behind closed doors in Washington’s federal trial court and later in the D.C. Circuit. The appeals court closed a floor to the public on the December morning when a three-judge panel heard arguments, stopping members of news media from seeing the prosecutors and the defense lawyers who are involved in the dispute.

The D.C. Circuit issued a public ruling Dec. 18 that rejected the corporation’s argument that it was immune from the subpoena under the Foreign Sovereign Immunities Act. Judges David Tatel, Thomas Griffith and Stephen Williams of the U.S. Court of Appeals for the District of Columbia Circuit said judges have authority to hear and rule on disputes involving allegations of criminal offenses against foreign-owned corporations.

Lawyers for the corporation also argued that compliance with the subpoena would have violated the foreign country’s domestic laws. The panel judges said they were “unconvinced” the foreign country’s law “truly prohibits” the corporation from complying with the grand jury subpoena.

“The text of the foreign law provision the corporation relies on does not support its position,” the judges said in their order.

The panel, which issued a fuller opinion Tuesday, upheld a ruling by Chief Judge Beryl Howell of U.S. District Court for the District of Columbia. Howell’s sealed order in the grand jury case held the corporation in contempt and imposed a daily $50,000 monetary fine for noncompliance.

The D.C. Circuit’s ruling could have broader consequences, according to a white-collar and regulatory team from Cleary Gottlieb Steen & Hamilton that analyzed the decision. “The court appears to have significantly expanded the types of cases to which foreign states can be subject in the United States,” the Cleary lawyers wrote.

Howell, as the district’s chief judge, is overseeing matters related to Special Counsel Robert Mueller’s investigation of the Trump campaign’s ties to Russia. Representatives of the special counsel’s office have not publicly confirmed any relationship between the grand jury dispute and the Russia investigation.

The D.C. Circuit has a separate pending grand jury subpoena case that is connected to the special counsel’s Russia investigation.

In that case, a would-be grand jury witness is challenging the appointment and authority of Mueller, who was picked by Deputy Attorney General Rod Rosenstein to oversee the Russia investigation. The D.C. Circuit heard oral arguments in November in an open court session.

Several federal trial judges have rejected claims Mueller was unlawfully appointed and the scope of his authority is too broad.

 


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