The Slatest

What Is Going On With the Subpoena Fight Between House Republicans and James Comey?

James Comey
James Comey testifies to the House Permanent Select Committee on Intelligence hearing on Russian actions during the 2016 election campaign on March 20, 2017, on Capitol Hill in Washington. Nicholas Kamm/Getty Images

On Thanksgiving Day, former FBI Director James Comey sent out a surprising tweet.

The day prior, Comey had been issued a subpoena for a closed-door deposition in front of a joint panel of the House Judiciary and the House Oversight committees.

The panels, led by outgoing Reps. Bob Goodlatte and Trey Gowdy, are seeking Comey’s testimony as part of a probe into the FBI’s various investigations surrounding the 2016 election.

On Friday, Comey’s lawyers appeared in court to argue that he should not have to submit to closed-door questioning but only to a public hearing. Comey’s attorneys and those of the House committees in question have filed dueling legal briefs and are due back in court on Monday when a judge will hear more.

Comey’s legal case relies on the 1957 Supreme Court ruling in Watkins v. United States that the House had overstepped its bounds during the Joseph McCarthy hearings. “[The court] held that if a congressional subpoena ‘is issued solely for sake of exposure or intimidation, then it exceeds the legislative function of Congress,’ ” Comey’s lawyers argued in a brief to the court.

The House Republicans have a strong counterargument, which is that Congress is a co-equal branch of government that gets to set its own rules and decide how it wants to exercise its legislative oversight powers, and that this is a reasonable area of oversight. Unless he’s able to run out the clock on the closing 115th Congress, Comey might lose his case and be forced to testify behind closed doors.

But based on the recent history of the House panels charged with oversight of the president, Comey’s broader point stands: Key committees have done virtually nothing but run interference for a legally compromised president during the past two years of Republican control.

Comey’s team claims House Republicans are using “the pretext of a closed interview to peddle a distorted, partisan political narrative about the Clinton and Russia investigations through selective leaks.”

“That corrosive narrative […] draws sustenance from a poisonous combination of presidential tweets and the selective leaking that has become standard practice for the Joint Committees,” Comey’s brief continued. “The broader purpose of these tweets and leaks appears to be to mislead the public and to undermine public confidence in the FBI and the DOJ during a time when President Trump and members of his administration and campaign team are reported to be under investigation by Special Counsel Robert Mueller and other law enforcement authorities.”

Incoming House Intelligence Committee Chairman Rep. Adam Schiff on Friday did not offer an assessment of the legal merits of Comey’s case but agreed completely with his bigger point.

“I think the predominant purpose of this is to distract from all the problems that the president has right now,” Schiff told Slate. “I think they fully intend to do exactly what James Comey is suggesting, which is selectively leak and characterize his testimony.”

It’s been clear for some time that the work of these committees has been to bolster a public defense of the president by attempting to tarnish his pursuers. Comey’s own brief cites the joint committees’ treatment of former FBI officials Andrew McCabe, Lisa Page, Peter Strzok, and others who have seen private testimony selectively leaked in potentially distortive ways before ultimately ending up in threatening presidential tweets.*

Schiff also notes that his own committee has been slow to release full public transcripts of its interviews and has not shared its information with Mueller. Instead, Mueller has had to rely on public information to search for discrepancies between the congressional testimony of key witnesses and facts he’s been gathering. Former Trump attorney Michael Cohen pleaded guilty this week to lying in House and Senate testimony, but Mueller had to cobble that together without the help of the House Intelligence Committee.

Indeed, that committee’s final report on the Russia investigation was full of transparent holes. It’s now clear that some of the testimony that the Republican committee members relied upon to craft that report was itself perjured. With Schiff promising to share the transcripts of the testimony from his own committee with Mueller and make them public soon after he takes the gavel, we should be finding out how many in the Trump orbit have spent the past two years lying to Congress with impunity.

In the meantime, look for House Republicans to use their last days in power to try to tarnish Comey in one final dying run at congressional interference for President Trump.

Correction, Dec. 2, 2018: This post originally misspelled Peter Strzok’s last name.