Supreme Court to discuss whether to take secret appeal from mystery company in possible Mueller probe

  • The justices of the Supreme Court on Friday will discuss whether to allow a mysterious foreign-owned company to file — without the public seeing it — a request that the high court hear its challenge of a subpoena.
  • The subpoena is believed to have been issued by a federal grand jury working with special counsel Robert Mueller.
  • The company, which is owned by an unknown foreign government, is currently subject to fines of $50,000 per day for failure to comply with the subpoena.
U.S. Supreme Court building in Washington, D.C.
Janhvi Bhojwani | CNBC
U.S. Supreme Court building in Washington, D.C.

This will be a double-secret discussion.

The justices of the Supreme Court on Friday will discuss whether to allow a mysterious foreign-owned company to file — without the public seeing it — to ask that the high court hear its challenge of a subpoena that is suspected to have been issued at the request of special counsel Robert Mueller.

If the justices approve that bid, it then could possibly set the stage for a rare, if not unprecedented scenario: the Supreme Court being asked to hear oral arguments in a case without the public being able to witness them.

But if the Supreme Court rejects the company's request at the justices' conference on Friday, the unidentified company could still ask the high court to hear its appeal, albeit with a filing of documents that would be open to the public.

However, even if the company chooses that route, the Supreme Court is not obligated to grant the request to the case, which is known as a petition for a writ of certiorari.

By the time that the justices meet on Friday, the company will have racked up more than $500,000 in fines for not complying with the subpoena.

Walter Dellinger III, an appellate lawyer who as acting solicitor general argued at the Supreme Court for the government of the United States from 1996 to 1997, told CNBC, "I know of none," when asked whether he had heard of any prior case in which the high court considered a request to be heard on appeal in sealed documents.

Dellinger also said he was unaware of the Supreme Court hearing a case in a session closed to the public.

A case shrouded in secrecy

Friday's conference of the justices, which will occur in private, is the latest chapter in a case that has been shrouded in secrecy since the first hint of it become public last year.

What is known, though, is that a company owned by a unknown foreign government is trying to quash a subpoena for information issued by a grand jury sitting in U.S. District Court in Washington, D.C. There is circumstantial evidence that the grand jury is working in conjunction with Mueller's office, which is investigating Russian interference in the 2016 presidential election and related issues.

That evidence includes sightings of lawyers on the special counsel's team at the courtroom of the judge who first heard a challenge of the subpoena, at the same time of proceedings in the case.

Those proceedings have been held without the public being allowed to attend.

The judge in the case, Beryl Howell, rejected the company's request to toss out the subpoena. The firm had argued it was exempt from the subpoena because of the Foreign Sovereign Immunities Act, and also that the subpoena was "unreasonable and oppressive" under federal rules because it would require the company to violate the law of the country that owns it.

Last month, the federal appeals court in Washington denied the company's appeal of Howell's decision.

The company then asked the Supreme Court to stay the $50,000 daily fine that Howell imposed on the firm for not complying with the subpoena. Chief Justice John Roberts granted that request.

The company also asked that the justices on the court let it file its request that the Supreme Court take up its appeal under seal.

Last Tuesday, the Supreme Court lifted the stay on the fines, meaning the company may be on the hook for at least $350,000 in fines as of Monday.

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