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Judge postpones ruling on Comey request to invalidate subpoena from House Republicans

Comey said he would appear before Congress in an open hearing, but not a closed proceeding.
Image: James Comey
Former FBI director James Comey testifies before the Senate Select Committee on Intelligence, on Capitol Hill in Washington.J. Scott Applewhite / AP file

WASHINGTON — A federal judge Friday put off an immediate ruling on a request from former FBI Director James Comey to invalidate a subpoena that requires him to appear before a closed hearing called by House Republicans.

Comey and former Attorney General Loretta Lynch received subpoenas last week, ordering them to appear for interviews in early December about their roles in the FBI's investigations of Hillary Clinton's emails and Russian election meddling. Republican Rep. Bob Goodlatte of Virginia, chairman of the House Judiciary Committee, said the two were subpoenaed after they declined repeated requests to appear voluntarily.

Comey's subpoena required him to appear Monday, December 3. But at a court hearing Friday, House lawyers said that has been delayed to Tuesday. Federal District Court Judge Trevor McFadden asked for more legal briefs to be fielded on the issue over the weekend and scheduled a hearing for Monday to announce his decision.

Comey is asking the judge to quash, or annul, the House subpoena, saying he would appear before an open hearing but not a closed proceeding to take his deposition. He said his goal was to prevent House Republicans "from using the pretext of a closed interview to peddle a distorted, partisan political narrative about the Clinton and Russian investigation through selective leaks." Republicans have repeatedly maintained, Comey said, that the FBI was lenient on Hillary Clinton but extra-tough on President Donald Trump.

House Republicans seemed intent on undermining confidence in the FBI and the Justice Department while Robert Mueller's special counsel investigation is underway, he said.

Courts rarely act to quash congressional subpoenas, hoping to avoid what they view as essentially political disputes. But Comey argued that his subpoena should be invalidated because its issuance broke House rules that call for open hearings and because the intent of House Republicans was to harass and intimidate witnesses, not to objectively seek the truth.

Thomas Hungar, the general counsel for the House of Representatives, called Comey's request frivolous and grandiose. "No district court in the history of the Republic has ever granted such a request. "

David Kelley, the lawyer for Comey, seemed to acknowledge that point when he said, "Here's your opportunity, judge, to make some law."

Hungar also said the Constitution shields members of Congress, including congressional committees, from lawsuits. And he said the House is free to set its own rules and to give committees the authority to take depositions from witnesses behind closed doors.

"Mr. Comey may disagree with the focus of the committee's investigation, and he may disagree with the views of the individual members," Hungar said, "but he cannot dispute the authority of the committee to conduct oversight of the DOJ and the FBI."

Time is running out for House Republicans, with only a few weeks remaining before the end of the current Congress. Democrats take control of the House in January.

Former Attorney General Lynch has not yet taken legal action to challenge her subpoena, and her lawyer was unavailable Friday for comment.