Ex-FBI Head Comey Gives Up Bid to Block House Subpoena

House lawmakers to question former FBI director behind closed doors

Former FBI Director James Comey at the Brookings Institution on May 11, 2018. Brendan Smialowski / AFP

Former FBI Director James Comey gave up his legal bid to quash a U.S. House of Representatives subpoena and indicated that he'll appear for questioning in a closed-door session with lawmakers.

Comey announced his decision on Dec. 2, two days after the legal team for the U.S. House of Representatives appeared in court to oppose his attempt to block a subpoena issued by the House Judiciary Committee.

Hours later, Comey’s attorneys filed paperwork (pdf) to withdraw the lawsuit, indicating that their client has “reached an acceptable accommodation” with the Judiciary Committee “for voluntary testimony.”

“Grateful for a fair hearing from judge,” Comey wrote on Twitter. “Hard to protect my rights without being in contempt, which I don’t believe in. So will sit in the dark, but Republicans agree I’m free to talk when done and transcript released in 24 hours. This is the closest I can get to public testimony.”

Before Comey made his decision public, the House Judiciary Committee announced on Twitter that it was expecting the former FBI head to withdraw his legal challenge and appear for a private deposition “later this week.” The subpoena (pdf) originally compelled Comey to appear on Dec. 3.

The Judiciary Committee and the Committee on Oversight and Government Reform are conducting a joint investigation into the actions taken and not taken by the FBI and Justice Department (DOJ) in 2016. The probe is specifically looking into the conduct of government officials in connection to the investigations of Hillary Clinton’s use of an unauthorized email server and allegations of collusion between associates of the Trump 2016 presidential campaign and Russia. Comey headed the FBI during both investigations.

Rep. Bob Goodlatte (R-Va.) issued subpoenas to Comey and former Attorney General Loretta Lynch on Nov. 21. The next day Comey indicated that he planned to resist the subpoena. His lawyers filed a motion to quash the subpoena with the U.S. District Court in Washington on Nov. 30.

In the court motion, Comey’s attorneys allege that the closed-door setting of the deposition will subject the former FBI head to “selective leaks” used to promote a “partisan political narrative.” The motion further argued that the subpoena is in violation of House rules.

House attorneys filed a response with the court on Nov. 30, citing, in part, a 1975 Supreme Court ruling which virtually insulates Congressional subpoenas from challenges like to Comey’s. The house legal team called the ex-FBI head’s court appeal “so extraordinary and frivolous that, as far as undersigned counsel is aware, no district court in the history of the Republic has ever granted such a request.”

“Mr. Comey chose to file a motion to quash despite clear Supreme Court precedent setting forth Congress’ authority to issue subpoenas compelling testimony before its committees,” Goodlatte said in a statement. “There was no need to use baseless litigation in an attempt to run out the clock on this Congress, and I am glad that it was withdrawn.”

According to the court documents, none of the 16 witnesses interviewed by the joint committees to date have resisted a closed-door deposition. The committees have spoken to some of the key players in the Clinton and Russia investigations, including former FBI agent Peter Strzok and former FBI lawyer Lisa Page. Strzok played a lead role in both probes.

Special counsel Robert Mueller, who is heading the probe into the Russia investigation, removed Strzok from his team after reviewing text messages between Strzok and Page which revealed the pair’s intense bias against Trump and in favor of Clinton. Strzok and Page, who were having an affair at the time, discussed an “insurance policy” in the “unlikely” event Trump won the presidency in 2016.

Part of the House investigation focused on the Foreign Intelligence Surveillance Act (FISA) warrant that the FBI secured to wiretap former Trump campaign volunteer Carter Page. FBI officials used a now-discredited dossier of opposition research on Trump as the core of a secret-court application to secure the warrant.

A separate investigation by the House Intelligence Committee found that the opposition research dossier was funded by the Hillary Clinton Campaign and the Democratic National Committee. Christopher Steele, a former British spy, used second- and third-hand sources with ties to the Kremlin to compile the document.

The FBI and DOJ included the dossier in the FISA application knowing that Steele had breached bureau policies by talking to the media and was opposed to Trump becoming president. The applicants also failed to disclose that Clinton paid for the dossier. Comey signed the initial application and two renewals.

Trump fired Comey in May last year, triggering a series of developments that led to Mueller’s appointment. Comey admitted to leaking his FBI memos in hopes that a special counsel would be installed. At least one of the memos contained classified information, according to Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa).

A group of 11 Republican lawmakers referred Comey for criminal investigation in April. In a letter (pdf) sent to the heads of the FBI and DOJ, they accuse Comey of leaking classified information and investigative misconduct.

Comey has said that he wants to testify publicly instead of behind closed doors. In prior testimony to Congress, Comey used the public setting as a reason to not answer nearly 100 questions, according to Rep. Trey Gowdy (R-S.C.).