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House subpoena lawsuit risks change to oversight power

Judge urges House Judiciary Committee and DOJ to settle the dispute instead

The House Judiciary Committee, led by Rep. Jim Jordan, R-Ohio, has filed a lawsuit seeking the testimony of two Justice Department attorneys.
The House Judiciary Committee, led by Rep. Jim Jordan, R-Ohio, has filed a lawsuit seeking the testimony of two Justice Department attorneys. (Bill Clark/CQ Roll Call file photo)

The House Judiciary Committee has teed up a high-stakes legal clash with the Justice Department in a lawsuit that could influence congressional oversight authority far beyond the GOP’s impeachment investigation into President Joe Biden, legal experts say.

The committee’s lawsuit in the U.S. District Court for the District of Columbia last month against two Justice Department attorneys asks a federal court to compel the officials to testify about the criminal case against Hunter Biden.

The committee subpoenaed the two officials for depositions, but DOJ directed the attorneys to defy the subpoenas because agency counsel would not be allowed to attend under House rules, according to the lawsuit.

Legal experts say the case raises key separation-of-power issues and asks the federal courts to settle them — but that’s only if a judge issues a decision before the two sides can come to an agreement.

U.S. District Judge Ana Reyes, during a status conference on the case Friday, ordered both sides to meet this week to try to come to an agreement. Reyes railed against arguments from the Justice Department and House general counsel’s office, telling them this is a “bad, bad case” for both of them.

Reyes delivered a drubbing at the conference: She implied the lawsuit was not a good use of taxpayer dollars, argued that taxpayers did not want to pay for a “grudge match” between the executive and legislature, questioned the practicality of the case given the timeline for any appeal and warned both sides they would face a tough time justifying their positions to her if the case continues forward.

Reyes told House General Counsel Matthew Berry that the lawsuit’s circumstances — trying to depose two line attorneys, at the core of attorney-client privilege in the case, about an ongoing investigation — is not a good way to make case law under the powers of the House.

“You know that. You know that. And even if somehow you get the decision that you want, it’s not going to come for a very, very long time,” Reyes said.

Reyes delivered withering rebukes against the Justice Department, saying the agency is openly disregarding the subpoenas. She also alluded to the DOJ prosecution of former Trump adviser Peter Navarro, who was sentenced to prison for not complying with subpoenas from the House select panel investigating the Jan. 6, 2021, attack on the Capitol.

“There’s a person in jail right now because you all brought a criminal lawsuit against him because he did not appear for a House subpoena,” she said.

“And now you guys are flouting those subpoenas willy-nilly” because the agency just does not want to show up, she said. “I’m trying to understand what the reasoning is for that.”

Reyes said she imagines there are defense attorneys across the nation who would be happy to hear of a Justice Department position that allows people to blow off a subpoena if they disagree with it.

Long-term implications

Congress and executive agencies can often work out their disputes without going to court, experts say, particularly because both sides take a risk if a court decides the case against their interests.

David Rybicki, a partner at K&L Gates, said cases like this raise major separation-of-power questions that could have long-term implications for both the scope of Congress’ investigative authority and the ability of the executive branch to protect its prerogatives.

“Both Congress and the DOJ potentially have a lot to lose in a court fight,” he said, likening litigation to a “game of chicken.”

“The agencies have an incentive to work this out in an amicable fashion without resorting to the intervention of the courts because of the wildcard nature of a lawsuit,” Rybicki said.

The House Judiciary panel is seeking the testimony of the two officials, Mark Daly and Jack Morgan, who the lawsuit states have firsthand knowledge of irregularities in the agency’s investigation that “appear to have benefited Hunter Biden.”

The department concluded the subpoenas are “invalid” and lack “legal effect” due to the exclusion of agency counsel, according to letters sent to the officials’ attorneys.

“It therefore cannot constitutionally be enforced by civil or criminal means or through any inherent contempt power of Congress,” the letters state.

Going to court to enforce a congressional subpoena raises many questions that have not been resolved by the courts, said Will Havemann, an attorney at Hogan Lovells and a former associate general counsel for the House.

“One of the dynamics at play in these cases is that because both sides have a lot to lose by a bad decision, they have a real incentive to negotiate,” Havemann said. “And that’s why there’s so little precedent.”

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