Theodore J. Boutrous, Jr. Photo: Diego M. Radzinschi/NLJ
The special counsel's team leading the Russia investigation has resisted allowing a foreign state-owned corporation to identify itself amid its ongoing fight over a grand jury subpoena, according to a newly issued order by a Washington federal appeals court that raised questions about the continued broad secrecy surrounding the litigation.
The U.S. Court of Appeals for the D.C. Circuit's order Tuesday said the identity of the company, long under seal as the grand jury fight has unfolded from the trial court to the U.S. Supreme Court, cannot now be revealed. The appellate judges said the name of the company remains subject to the secrecy rules that govern grand juries "and must, for that reason, remain under seal."
Prosecutors and the appeals court itself have gone to extraordinary lengths to keep the name of the company under wraps. At a court hearing last year, the D.C. Circuit shut down public access to a courtroom floor, allowing the attorneys in the case—who then had not been identified—to avoid intense media scrutiny.
The appeals court Tuesday, taking a step on its own, ordered federal prosecutors to propose redactions to court papers addressing why the U.S. government does not want the company to reveal its identity. The press office for Alston & Bird, which represents the company, did not immediately respond to a request for comment.
Tuesday's order came in a dispute over what additional information about the case can be released to the public. The appeals court is moving forward with a limited release of redacted information as early as next month.
The panel judges—David Tatel, Thomas Griffith and Stephen Williams—indicated they might go further in its release of information than what the company and the government proposed. The panel said it had "identified additional information that appears unlikely to reveal a matter occurring before the grand jury."
The panel also resisted the government's effort to keep totally sealed a portion of the oral argument that was conducted without counsel for the company. "This appears to go too far," the D.C. Circuit judges said.
The Reporters Committee for Freedom of the Press, represented by a team from Gibson, Dunn & Crutcher, has pressed for the public release of court papers in the dispute. The advocacy group had sought access to, among other things, "the briefs, record and oral argument transcript."
"But we believe the benefits of public scrutiny extend to other filings as well—particularly, to the government’s attempt to bar the Corporation’s attorneys from publicly identifying themselves," the D.C. Circuit panel said in Tuesday's order.
Gibson Dunn partner Theodore Boutrous, lead counsel for the Reporters Committee, in an interview called the ruling a win for transparency. He said the committee is generally pleased with the order requiring most of the briefs and transcripts to be unsealed. Boutrous said he remains hopeful that the name of the company will be released in the future.
“I think it’s really a strong signal that district courts can release materials connected to a grand jury where that’s possible without compromising grand jury secrecy,” Boutrous said.
Boutrous added the district court judge has granted a request to unseal the record before her, and the sides are currently discussing redactions.
The company was held in contempt by U.S. District Judge Beryl Howell last year for refusing to comply with the terms of the subpoena, and the U.S. Supreme Court in March refused the company's effort to block the grand jury subpoena. The company is on the hook for a $50,000 daily fine, and the amount now exceeds $2 million.
The special counsel's office recently confirmed that a grand jury is "continuing robustly," but prosecutors have not offered any contours of where the investigation is headed and how the foreign-owned company's information would assist the government.
“The materials sought are important to the grand jury’s investigation and the failure to secure the materials would undermine important interests of the United States,” Howell said in an order that was unsealed in February.
Robert Mueller III, the special counsel, recently concluded his investigation, and the Justice Department released a 448-page report that did not recommend charges against President Donald Trump or others in his orbit.
Prosecutors said they referred 14 matters to U.S. attorney offices, and 12 of those matters remain under seal.
Read the D.C. Circuit's latest order:
Mueller Grand Jury ‘Continuing Robustly,’ Prosecutor Tells Judge
Justices Uphold Mueller Subpoena in Mystery Company's Grand Jury Fight
Newly Unsealed Orders in Mueller Mystery Case Reveal Judge's Observations
Mueller Judge Is Asked to Reveal Identity of Foreign Company Fighting Subpoena
Foreign-Owned Company Warns Justices of Potential 'Havoc' Amid Subpoena Spat