Judge berates Justice Department for defying House GOP subpoenas tied to Biden impeachment inquiry

WASHINGTON — A federal judge berated the Justice Department on Friday for instructing two of its employees not to appear for depositions as part of a Republican-led impeachment inquiry into President Joe Biden.

“The rules apply to you all too,” U.S. District Judge Ana Reyes told Justice Department lawyers during a hearing to discuss the DOJ tax attorneys who defied congressional subpoenas.

The House Judiciary Committee sued the two attorneys last month in an effort to compel their testimony in the panel’s investigation into Hunter Biden. The lawsuit alleged that Mark Daly and Jack Morgan, both in the Justice Department’s tax division, refused to comply with subpoenas in the committee’s probe into whether the president’s son received “special treatment” from the Justice Department and whether Biden abused presidential power to “impede, obstruct, or otherwise influence” investigations into his son.

Daly and Morgan were subpoenaed twice. They were most recently scheduled to testify on March 1 but did not appear.

On Friday, Reyes drew attention to an earlier effort by the Justice Department to bring a criminal case against a defendant for not responding to a congressional subpoena, leading to a prison sentence.

She appeared to be referring to former Donald Trump adviser Peter Navarro, who reported to a federal prison last month to begin serving a four-month sentence. He was convicted on contempt of Congress charges for failing to comply with a subpoena from the House January 6 committee.

Friday’s hearing was the first time lawyers for the Justice Department and the House Judiciary Committee appeared in court after last month's lawsuit.

“I think the reason we’re all here is because you’re annoyed, probably appropriately so, that they want to depose two line attorneys,” Reyes said. “And that the reason we’re all here is because you all don’t think your line attorney should be subject to deposition.”

Justice Department lawyer James Gilligan pushed back on that characterization.

“We have separation-of-powers concerns about Congress attempting to interrogate line attorneys in an open criminal investigation,” Gilligan told the judge.

“You have concerns as the DOJ about people just willy-nilly not showing up to do subpoenas? To deposition subpoenas? Cause it seems to me, if I were you, I’d be quite concerned about that,” Reyes responded.

She noted that if deposed, Daly and Morgan would likely have valid privilege objections to much of the committee’s questions.

“That’s not intrusion if they’re not going to say anything,” Reyes said. “They’re just going to object to everything. What’s the intrusion? It’s a day of their time. OK, you’re taking up a bunch of my time.”

The Justice Department routinely requires subpoena recipients to face hours of questioning to invoke the Fifth Amendment on a question-by-question basis, Reyes said. “You are making a bunch of arguments that you would never accept from any other litigant,” she said.

Reyes also directed ire at a lawyer representing the House Judiciary Committee, saying the GOP-led panel had wasted taxpayer money by filing last month's lawsuit.

“I don’t think the taxpayers want to fund a grudge match between the executive and the legislative about when someone has to show up or not show up to a subpoena, when at the end of the day none of this is gonna get decided anytime soon,” she said. “I’m confident that you’re not keeping the impeachment inquiry open long enough for the DC Circuit to render a decision.”

Reyes ordered Gilligan and House General Counsel Matthew Berry, along with two witnesses, to meet on Wednesday to try and negotiate a compromise.

If no compromise can be reached, Reyes threatened to put the two witnesses under oath in a future hearing to answer questions about whether Gilligan and Berry negotiated in good faith. Additionally, the parties would be required to submit an estimate of how many hours attorneys will spend working on this case so that Reyes can keep track of how much money the case is costing taxpayers.

A spokesperson for the Justice Department declined to comment on the hearing, citing ongoing litigation. The House Judiciary Committee did not immediately respond to a request for comment Friday evening.

The House GOP impeachment inquiry has not provided any evidence of criminal wrongdoing by the president. Oversight Committee Chair James Comer, one of the leaders of the inquiry, has been suggesting recently that criminal referrals instead of impeachment are a more likely outcome of the probe. He has argued that an impeachment trial would likely fall short in the Senate, whereas criminal referrals could be sent to the Justice Department for potential action if former President Donald Trump wins in November.

The inquiry faced a significant setback recently when former FBI informant Alexander Smirnov, whose claims played a major role in igniting the probe, was indicted and accused of feeding false information to the FBI about Biden and his son during the 2020 presidential campaign.

Daniel Barnes reported from Washington, Zoë Richards reported from New York.