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6 months ago
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House Republicans are suing in a bid to force testimony from two Justice Department attorneys — part of the GOP's sweeping impeachment inquiry into President Joe Biden.
Judiciary Committee Committee Chair Jim Jordan (R-Ohio) filed a lawsuit on Thursday in the U.S. District Court for the District of Columbia to try to enforce subpoenas that compel closed-door testimony from two DOJ tax division attorneys: Mark Daly and Jack Morgan. They were both first subpoenaed last year as Republicans probed the years-long federal investigation into Hunter Biden.
“The failure of Daly and Morgan to comply with their respective subpoenas is impeding the Committee’s impeachment inquiry and its oversight of DOJ’s handling of the Hunter Biden investigation, matters of significant public concern,” attorneys for the House wrote in the 59-page complaint.
The attorneys indicated that Speaker Mike Johnson had blessed the lawsuit, which also includes a request for a preliminary injunction to quickly resolve the matter. More than 1,000 pages of exhibits were attached to the filings, including transcripts of interviews with witnesses like special counsel David Weiss, the lead prosecutor in Hunter Biden’s criminal matters.
Suing to enforce subpoenas against two career officials is a rare step for Congress, which has in recent years avoided those types of drag-out legal battles. The Jan. 6 committee, for example, opted primarily to hold recalcitrant witnesses in criminal contempt and did not ask courts to help enforce subpoenas.
Other than a recent move by House Republicans looking to enforce the subpoena of an FBI agent in its social media probe, the last time the House used the tool against the executive branch was in 2019. Democrats had asked federal judges to help enforce subpoenas to obtain an unredacted version of special counsel Robert Mueller’s final report concerning then-President Donald Trump and to force former White House Counsel Don McGahn to testify.
The lawsuit sets up a legal showdown that Republicans have been hinting at for months as they near the final stages of their impeachment investigation. It’s also a potential sign that Republicans are comfortable with dragging out their probe, as GOP investigators eye potential alternatives to impeachment. Republicans are still short of the votes to take that step within their own thin majority, since they need near unity to impeach Biden.
A Justice Department spokesperson said in a statement Thursday that the agency "is committed to working with Congress in good faith" and had taken an "extraordinary step of making six supervisory employees available to testify on appropriate topics last year."
"It is unfortunate that despite this extraordinary cooperation from senior DOJ officials, the committee has decided, after waiting for months, to continue seeking to depose line prosecutors about sensitive information from ongoing criminal investigations and prosecutions," the spokesperson said.
A Justice Department official, in a February letter included in the court materials, told attorneys for the two men that they were recommending that they not comply with the congressional subpoenas because the committee would not permit DOJ counsel to be present for the depositions. Under a Trump-era Justice Department opinion that refusal by the House GOP renders the subpoenas invalid.
“The underlying principles that inform the Department’s position are longstanding across administrations. …. On the basis of 2019 Office of Legal Counsel opinions, the Department has determined that the exclusion of agency counsel means that the subpoena is invalid and lacks legal effect. It therefore cannot constitutionally be enforced by civil or criminal means or through any inherent contempt power of Congress,” Justice Department official Bradley Weinsheimer wrote at the time.
The Justice Department, according to the February letter, also offered House Republicans three other senior officials “as an alternative to the Committee pursuing such testimony from line-level attorneys, including your client.” The committee, according to DOJ, accepted the offer, but then continued to pursue testimony from Daly and Morgan.
It’s unlikely the suit will lead to testimony or other disclosures within a time frame Republicans will find politically useful. A similar suit the GOP-led House filed in 2012 — over a subpoena demanding Justice Department documents related to the Fast and Furious gunrunning scandal — lingered for seven years before being settled in 2019, more than two years into Trump’s presidency.
But Republicans long flirted with suing to compel the two DOJ tax officials to testify behind closed doors. The sweeping GOP impeachment inquiry has largely focused on the business deals of President Joe Biden’s family members, but it’s also touched on Joe Biden’s handling of classified documents and the federal investigation into Hunter Biden.
When Republicans formally greenlit their impeachment inquiry late last year, they also specifically signed off on the investigative committees initiating a lawsuit, with the speaker’s blessing, to compel testimony from the two DOJ officials. Jordan signaled that he still wanted testimony from the two career officials in a recent letter to the Justice Department, and he separately told POLITICO that a lawsuit remained on the table.
“It just seems obvious that they should make them available,” Jordan said at the time. “These are important guys. … We want to talk to them.”
Asked about a lawsuit, he added: “Every option is on the table. That just takes time, but we may have to do it.”
But the Justice Department, in a letter to Jordan from February, said that officials it had provided to the committee “were able to address the central issue in these subpoenas and the impeachment resolution: whether there was any political interference in special counsel Weiss’s investigation, including by President Biden. Each witness said they were unaware of any such interference.”
Josh Gerstein contributed to this report.
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