Saturday, December 15, 2018

About that sealed, secret hearing

The one where an entire floor of the court was sealed off to prevent anyone not involved, including reporters, from seeing who was there.
Special counsel Robert Mueller appears to be locked in a dispute with a mystery grand jury witness resisting giving up information sought in the ongoing probe into alleged Trump campaign collusion with Russia.

It's unclear exactly what the two sides are fighting over, but the case appears to resemble a separate legal battle involving an associate of Trump ally Roger Stone, Andrew Miller, who is fighting a Mueller subpoena. Miller's lawyers are using the case, slated to be argued at the D.C. Circuit Court of Appeals early next month, to mount a broad legal assault on Mueller's authority as special counsel.

In the more shadowy case, which involves an unknown person summoned before a grand jury this summer, the D.C. Circuit on Monday set a separate round of arguments for Dec. 14.

The case traveled in recent months from U.S. District Court Chief Judge Beryl Howell to the U.S. Court of Appeals for the D.C. Circuit, back down to Howell and back up again to the appeals court with most details shrouded in secrecy, another indication that much of Mueller's activity is taking place behind the scenes and is rarely glimpsed by the press or public.

Nothing on the two dockets for the mystery grand jury fight mentions Mueller or his team.

However, a POLITICO reporter who visited the appeals court clerk's office on a day when a key filing in the dispute was due earlier this month observed a man request a copy of the special counsel's latest sealed filing so that the man's law firm could craft its response.

[...]

Three hours later, a sealed response in the grand-jury dispute was submitted to the D.C. Circuit. Another detail emerged Wednesday strengthening the secret legal battle's apparent tie to Mueller's probe. The first appeal appears to have been rejected by a D.C. Circuit panel as premature. The witness's lawyers asked the full bench of the appeals court to review that decision but a notation in court files says only nine of the court's 10 active judges participated. Bowing out was Judge Greg Katsas, the court's only member appointed by President Donald Trump.

[...]

At Katsas's confirmation hearing, he acknowledged working on some issues related to the Russia investigation and signaled he would take a broad view of his recusal obligations stemming from that work.

[...]

A few, bare-bones details about the dispute are available in the public record. While all records about the litigation in the district court are sealed, the D.C. Circuit's docket shows that the case was brought in the District Court on Aug. 16 and Howell ruled on it on Sept. 19. The initial appeal was filed five days later.

"The bottom line is the most likely scenario is someone filed a motion to quash or otherwise resisted a grand jury subpoena, and the judge issued an order denying that and saying the witness needs to testify," said Ted Boutrous, a Gibson Dunn & Crutcher attorney who has handled grand jury-related litigation for journalists and media organizations.

  Politico
Most likely, but not most certain.
The grand jury cases pose a threat to Mueller's investigation because they can serve as vehicles to get questions of his authority and legal legitimacy before appellate judges relatively quickly. Such questions have also been raised by defendants in some of Mueller's criminal cases, but all the human defendants who have set foot in a courtroom have ultimately decided to plead guilty and drop any challenges to the special counsel's authority or tactics.

One Russian company charged in and fighting a Mueller case, Concord Management and Consulting, has attacked the special counsel's authority, but the judge turned down the motion. Concord attempted an immediate appeal, but since dropped it.
...but hey, do what you want...you will anyway.

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