Challenge to Subpoena Unsealed in Mystery Mueller Case

WASHINGTON (CN) – In a filing released publicly Monday, an anonymous company fighting a subpoena tied to Special Counsel Robert Mueller’s investigation told the Supreme Court that forcing it to comply would undermine the goals of a law detailing when foreign governments can face suit in U.S. courts.

Special Counsel Robert Mueller departs after a meeting on Capitol Hill on June 21, 2017. (AP Photo/J. Scott Applewhite, File)

“If left to stand, the D.C. Circuit’s judgment would create chaos in the international community – possibly alienating American allies, undermining diplomacy, and all but guaranteeing that American agencies and instrumentalities will (despite their protestations), face criminal proceedings abroad,” attorneys for the company wrote in a newly unsealed filing at the U.S. Supreme Court. (Parentheses in original.)

The brief continues, “The United States has rightly rejected the International Criminal Court as a threat to America’s sovereign immunity from foreign criminal jurisdiction. With the decision below, America has said to the world, ‘do as I say, not as I do.'”

The argument centers on the Foreign Sovereign Immunities Act, which presumes that a foreign government is immune from the jurisdiction of U.S. courts unless a certain exception applies.

Though most of the filings remain under seal on federal court dockets, the case involves a company owned entirely by an unnamed country that refused to respond to a grand jury subpoena, incurring a contempt order and a $50,000 per-day fine from a district court in Washington, D.C.

The case has drawn considerable attention, and details of the mysterious battle have trickled out in the weeks since the company argued its case in a secret hearing before the D.C. Circuit.

First, the D.C. Circuit released a short judgment in December that revealed the subject of the mysterious case was a company “owned by Country A.” A month later, the court released a longer opinion detailing the reasoning for upholding sanctions against the company.

Last week, it was confirmed the company is represented by attorneys with the law firm Alston & Bird and shortly after, an unsealed docket confirmed Politico’s reporting that the case was being handled by Mueller’s office.

Monday’s developments come in a 20-page brief the company filed with the Supreme Court on Jan. 17 supporting its petition for the high court to hear its case. The filing says the company “understands that it is only a witness” in Mueller’s investigation.

The company, which is referred to as Country A throughout the filing, says it should be immune from criminal matters in U.S. courts because it is completely owned by a foreign country.

Edward Kang and Brian Boone, who represent the company, wrote the high court should weigh in because appeals courts are split on whether U.S. courts can hear criminal cases involving foreign countries.

The filing also accuses the D.C. Circuit of “manufacturing” jurisdiction to hear the case.

The company further argues in the filing that the D.C. Circuit stepped into a purely political dispute, as it should be up to Congress to resolve the concern the judges raised that a company owned by a foreign government that conducts business in the United States could “flagrantly violate criminal laws” without fear of being dragged into court under the company’s reading of the law.  

Chief Justice John Roberts initially stayed the district court contempt order, but the justices lifted the stay on Jan. 8.

Kang did not immediately return a request for comment Monday afternoon.

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