Top House Dem claims Judiciary chairman’s DOJ, FBI subpoena is invalid

The top Democrat on the House Judiciary Committee says a March subpoena issued by the head of the panel seeking documents related to how the FBI handled its probe into former Secretary of State Hillary Clinton’s email server and information on the dismissal of former FBI Deputy Director Andrew McCabe did not follow committee rules and is therefore invalid.

“Our Committee rules prevent the Majority from making substantive changes to a proposed subpoena without appropriate notice to the Minority,” Rep. Jerrold Nadler (D-N.Y.) wrote on Thursday to committee Chairman Bob Goodlatte (R-Va.), according to a copy of the letter obtained by The Hill.

{mosads}Nadler argued that information sought from the FBI and Department of Justice (DOJ) in the subpoena Goodlatte issued March 22 was “substantively and materially different from the document” the chairman presented to him as his advanced notice on March 19.

“Because you did not provide me with a copy of the subpoena that actually issued, the subpoena that you eventually issued would be unenforceable as a matter of law,” he said. “As we discussed on at least one other occasion, our consultation is not complete — and the subpoena may not issue — until you have transmitted a full copy of the subpoena to my office.”

A House Judiciary Committee aide pushed back on Nadler’s claim, arguing that the subpoena properly followed committee procedures.

“When the final subpoena was issued several items where combined into one because the documents in question were all in the possession of the inspector general and therefore there was no reason to break those requests down individually, so the content was the same,” one aide told The Hill.

“Too bad the Democrats are more focused on blocking transparency than getting to the bottom of potential abuses by the Department of Justice and the FBI,” the aide continued.

The subpoena sought a tranche of documents from the DOJ related to the government’s investigation into Clinton’s use of a private email server while serving as secretary of State, as well as information on the removal of McCabe, who was fired by Attorney General Jeff Sessions earlier this year.

Since the subpoena no longer stands, Nadler said, Republicans cannot pursue contempt of Congress or impeachment proceedings against DOJ officials.

Under committee rules, Goodlatte has the power to issue a unilateral subpoena if he properly notifies Democrats. But the New York Democrat urged him to consider a more bipartisan alternative since he found the initial subpoena to be invalid.

Sessions, Deputy Attorney General Rod Rosenstein, House Oversight and Government Reform Committee Chairman Trey Gowdy (R-S.C.) and that committee’s ranking member, Rep. Elijah Cummings (D-Md.), were all copied on the letter.

The letter comes amid a mounting feud between Republicans and the DOJ.

This week, a group of GOP leaders vowed to take action against the DOJ and FBI if they fail to comply with lawmakers’ subpoena requests by the end of this week.

“I am supportive of making sure we get the documents we rightly deserve that we legitimately requested. We expect compliance,” House Speaker Paul Ryan (R-Wis.) said during his weekly press conference when asked if he supported his GOP colleagues’ calls for contempt proceedings.

According to Gowdy, Ryan “made it very clear: There’s going to be action on the floor of the House this week if the FBI and DOJ do not comply with our subpoena request.”

“We will expect to see things from them this week or the heat is going to continue to be turned up,” Goodlatte said Monday.

If Republicans do pursue contempt proceedings, it’s unclear on which subpoena those proceedings would be based.

House conservatives have accused the DOJ of slow-walking its production of documents and resisting their efforts to view key materials related to both the Clinton email investigation and the beginnings of the U.S. intelligence community’s investigation into Russian interference in the 2016 presidential election.

The letter also comes one week after DOJ Inspector General Michael Horowitz released a scathing report that criticized the decisions of top FBI and DOJ officials for their handling of the Clinton email probe. 

The report prompted a number of GOP leaders to call on special counsel Robert Mueller to conclude his probe into possible ties between the Trump campaign and Russia.

Earlier this year, a group of conservative House lawmakers began drafting a resolution that calls for the Rosenstein’s impeachment. Rosenstein is the top DOJ official overseeing Mueller’s Russia probe.

Democrats say President Trump’s allies are attempting to pave the way for Rosenstein’s removal in order to undermine the special counsel’s investigation.

Updated at 2:48 p.m.