Comey asks court to quash House subpoena

Former FBI Director James Comey has filed a motion in federal court in Washington to quash a congressional s...

Posted: Nov 30, 2018 10:23 AM
Updated: Nov 30, 2018 10:23 AM

Former FBI Director James Comey has filed a motion in federal court in Washington to quash a congressional subpoena issued just before Thanksgiving soliciting his testimony on the FBI's actions leading up to the 2016 election.

Comey has said previously that he would be willing to testify publicly, but did not want to do it behind closed doors.

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In Thursday's filing, his lawyers argue that the House Judiciary and Oversight committees "have conducted an investigation in a manner that exceeds a proper legislative purpose insofar as members of the committees have established a practice of selectively leaking witnesses' testimony in order to support a false political narrative, while subjecting witnesses to a variety of abuse."

"Mr. Comey asks this Court's intervention not to avoid giving testimony but to prevent the Joint Committee from using the pretext of a closed interview to peddle a distorted, partisan political narrative about the Clinton and Russian investigations through selective leaks," his lawyers added in court papers.

The House Judiciary Committee subpoenaed Comey to appear behind closed doors on Monday.

The legal action from the controversial former FBI director showed Comey was making good on a pledge to push back against the demand from House Republicans for a private deposition.

Comey said last week he had received the subpoena, and that while he was "happy to sit in the light and answer all questions," he would "resist" a closed door questioning.

He added on Monday that he "would respond legally" to the subpoena rather than brush past it.

On Thursday, he tweeted, "Today my legal team filed court papers to try to get transparency from House Republicans. Let the American people watch."

House Judiciary Chairman Bob Goodlatte and other House Republicans have been looking into Justice Department actions during the 2016 campaign, and -- in one of Goodlatte's final acts in power -- the outgoing Virginia Republican issued subpoenas for testimony from Comey and former Attorney General Loretta Lynch.

In their filing on Thursday, Comey's lawyers claimed Republicans would leak parts of his testimony "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."

"The public record shows members of the Joint Committees leaking what suits them and maintaining the secrecy only of what does not. Witnesses who appear before the joint committees are powerless to counter or contextualize the distortions of their testimony that are leaked to the press," Comey's lawyers added.

Comey's lawyers cited a Supreme Court ruling born from the Joseph McCarthy Red Scare hearings in the 1950s and argued that the "abusive conduct" of the House investigation is in violation of Congress' own rules and done to "harass and intimidate witnesses."

The filing ticks through news reports that detail closed-door testimony by former FBI officials who appeared before the committees, such as Andrew McCabe and Peter Strzok, calling them "leaks and related comments by Committee members" that have "unfairly prejudiced these witnesses and hardly served the supposed truth-seeking purpose" of the investigation.

Outgoing South Carolina GOP Rep. Trey Gowdy, chair of the House Oversight Committee, said on Sunday that he did not agree with Comey's request for a full public hearing, and suggested instead videotaping a private deposition, editing out any classified information and releasing the tape to the public.

"The remedy is not to have a professional wrestling-type carnival atmosphere, which is what congressional public hearings have become," Gowdy said, adding that it was not his decision to make.

CNN has reached out to Goodlatte for comment on Thursday's filing.

In a Monday interview with CNN's Erin Burnett on "Erin Burnett OutFront," Goodlatte rejected Comey's proposition for a public hearing, calling a it "not an appropriate forum" because it could reveal investigative details to other potential witnesses.

Goodlatte also said an open hearing wouldn't enable lawmakers to ask Comey all the "hundreds" of questions they had for him, and tweeted Thursday evening: "It appears Mr. Comey believes he deserves special treatment, as he is the only witness refusing to either appear voluntarily or comply with a subpoena."

The legal maneuver by Comey is not unheard of in Washington probes, but it's not always successful, according to Eric Schickler, a professor of political science at the University of California, Berkley.

"In general the courts have given a lot of deference to Congress so it's not an argument that generally succeeds, but it's certainly one that's been made," Schickler said.

Comey on Thursday also asked the court to stay the testimony scheduled for Monday until it rules on his motion to quash the subpoena -- part of what Schickler says could be a strategy to drag out legal proceedings until Democrats take over the committee in the new year and shut down the investigation.

The case was randomly assigned by the court Thursday night to Judge Trevor N. McFadden, a Trump appointee.

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