DOJ tells Jordan FBI subpoenas can't 'be enforced,' warns Hunter Biden inquiry 'ongoing' ...
SIDENOTE:
The Department of Justice (DOJ) can ignore a subpoena under certain limited circumstances. These circumstances are typically based on a claim of privilege, such as executive privilege or attorney-client privilege.
- Executive privilege is a legal doctrine that allows the president to withhold information from Congress or the courts. This privilege is often invoked to protect sensitive information that could harm national security or foreign relations.
- Attorney-client privilege is a legal doctrine that allows clients to keep their communications with their attorneys confidential. This privilege is often invoked to protect confidential communications between clients and their attorneys about legal matters.
In addition to claims of privilege, the DOJ can also ignore a subpoena if it believes that the subpoena is invalid or that compliance with the subpoena would be illegal. For example, the DOJ could ignore a subpoena if it believes that the subpoena is issued by a court that lacks jurisdiction or if it believes that compliance with the subpoena would violate the law.
In the case of the subpoenas issued by Rep. Jim Jordan (R-OH) to the FBI, the DOJ has argued that the subpoenas are invalid because they are not authorized by a court. The DOJ has also argued that compliance with the subpoenas would be illegal because they would require the FBI to disclose confidential information.
The DOJ's decision to ignore the subpoenas has been met with criticism from some Republicans, who argue that the DOJ is trying to protect Hunter Biden from scrutiny. However, the DOJ has defended its decision, arguing that it is simply following the law.
The legal question of whether the DOJ can ignore a subpoena is complex and there is no easy answer. The DOJ's decision to ignore the subpoenas in this case is likely to be challenged in court, and it is possible that the courts will ultimately decide that the DOJ does not have the authority to ignore the subpoenas.
EXCLUSIVE — The Department of Justice informed the House Judiciary Committee on Tuesday night that it would not cooperate with subpoenas for two FBI agents involved in the department's investigation of Hunter Biden because of the committee's stipulations for their depositions.
Carlos Uriarte, DOJ assistant attorney general, claimed in a letter obtained by the Washington Examiner to committee Chairman Jim Jordan (R-OH) that his subpoenas to the two agents "lack legal effect and cannot constitutionally be enforced" because Jordan had prohibited DOJ lawyers at their depositions.
"The subpoenas issued by the Committee prohibit the attendance of agency counsel at appearances by two FBI employees where the Committee has indicated it will ask questions regarding information they learned within the scope of their official duties, including regarding the ongoing criminal investigation," Uriarte wrote.
He also noted that compelling testimony from the pair of FBI officials, special agents Thomas Sobocinski and Ryeshia Holley of the FBI's Baltimore Field Office, was "premature" because the DOJ was open to continuing "discussions" with Jordan.
Jordan's deposition rule aligns with House rules, which do not permit department counsel at depositions. The DOJ and the committee could, however, negotiate to have Sobocinski and Holley appear voluntarily with DOJ lawyers instead of appearing in the form of a deposition.
Uriarte indicated that negotiations were plausible. And while he was deferential to the committee's oversight authority throughout the letter, he also continuously warned that the DOJ's Biden investigation, led by newly appointed special counsel David Weiss, was ongoing and that information flow would be limited during that time.
Concerns about sharing nonpublic details about a current investigation "are heightened while a matter is open and investigative steps, prosecutorial decisions, or judicial proceedings are ongoing. As Mr. Weiss and his office have repeatedly stated, his investigation remains ongoing," Uriarte wrote.
The letter comes in response to Jordan and House Ways and Means Committee Chairman Jason Smith (R-MO) issuing four subpoenas this month, two to the FBI and two to the IRS, regarding the yearslong investigation into Biden.
The chairmen alleged that the investigation had been "purposely slow-walked," basing the allegations in part on whistleblower testimony from two veteran IRS agents involved in the investigation. The whistleblowers testified in May about a meeting that occurred last October during which Weiss allegedly said he lacked the necessary authority to bring certain charges against Biden.
Jordan said the two FBI officials, Sobocinski and Holley, had jurisdiction over the FBI's Wilmington office, where the Biden investigation was based. He also said they were present at the October meeting.
Weiss and Biden's attorneys nearly struck a plea deal in June involving Biden pleading guilty to two misdemeanor tax charges and entering into a pretrial diversion agreement to avoid a felony gun charge.
The deal took an unexpected turn during a plea hearing in July, however, when a federal judge called into question its immunity provisions and whether it would prevent Biden from facing future charges, particularly for violations of the Foreign Agents Registration Act.
After the hearing, Weiss and defense lawyers hit an "impasse" and now could be headed for trial in the case, according to court filings.
Prior to Garland appointing Weiss as special counsel this month, the DOJ had vowed to Jordan that Weiss would publicly testify before his committee in September or October.
While the DOJ has not appeared to rescind this offer in the wake of Weiss's appointment, Uriarte did note that Weiss would be required, per special counsel rules, to issue a public report about any prosecution decisions at the end of his inquiry.
He also added that the time for testimony from anyone at the DOJ involved in the investigation would be "most appropriate" once the investigation is closed.
"As we and Mr. Weiss himself have noted, the most appropriate time for any testimony on the subject of any individual ongoing criminal investigation is after the matter is closed," Uriarte wrote.
Read the DOJ's letter below:
Office of the Assistant Attorney General Washington, DC 20530
The Honorable Jim Jordan Chairman Committee on the Judiciary U.S. House of Representatives Washington, DC 20515 Dear Chairman Jordan: We write in further response to your recent correspondence, including your subpoenas for testimony from two Federal Bureau of Investigation (FBI) employees dated August 21, 2023, about the individual ongoing criminal investigation and prosecution overseen by Special Counsel David Weiss. The Department of Justice (Department) reaffirms our ongoing commitment to good-faith negotiations with the House Committee on the Judiciary (Committee) in response to your interest in this matter, including in response to the recently issued subpoenas. We welcome the opportunity for continued discussions beyond our prior correspondence and staff-level discussions to identify any topics on which information can be shared, potentially through voluntary testimony from appropriate individuals, documents, or written responses to questions from the Committee. Moreover, at the close of this matter, Special Counsel Weiss will prepare a report for the Attorney General explaining his prosecution and declination decisions. The Attorney General has committed to making public as much of that report as possible, consistent with legal requirements and Department policy. Further, in light of the Committee’s stated interest in potential changes to the special attorney statute, 28 U.S.C. § 515; codifying the Department’s special counsel regulations, 28 C.F.R. Part 600; and the Department’s Tax Division, the Department is available to brief the Committee on those topics. My staff will reach out to your staff today to schedule a call to take place as soon as possible to continue our discussions on these issues. We make this offer in good faith and in keeping with our continuing commitment to the constitutionally mandated accommodation process, including by giving negotiations an opportunity to yield a productive outcome. Given these opportunities for further discussion, we believe seeking to compel testimony from FBI agents directly involved in the ongoing investigation is premature.
U.S. Department of Justice
Office of Legislative Affairs
The Honorable Jim Jordan Page 2 As we wrote to the Committee at the outset of this Congress, “[s]uccessful compromises are most often possible when both Branches hew to the accommodation process,”
and, as I have testified during this Congress, reaching agreement and avoiding conflict should be our shared goal.
As we have said before, we respect the scope of the Committee’s jurisdiction to initiate legislative inquiries regarding a range of the Department’s work and administration. We have already provided information to the Committee and will continue to work to identify ways to meet its needs. We remain hopeful the Department and the Committee can reach potential accommodations, including on the appropriate timing and topics for testimony.
The Department remains committed to safeguarding the public interest in the integrity of our investigations and prosecutions and to furthering the Executive Branch’s duty to ensure that the law be faithfully executed.
Our obligation to “protect the government’s ability to prosecute fully and fairly” is vital to the Executive Branch’s core constitutional function to investigate and prosecute criminal matters.
In keeping with these principles—which have been longstanding across administrations—we must continue to protect the Department’s criminal law enforcement decisions and its legal judgments from even the appearance of political or other inappropriate influences.
The Department therefore safeguards non-public information about open investigations, sensitive law enforcement information, and internal deliberations. This protects the public interest in the integrity and fairness of criminal investigations and proceedings. These concerns are heightened while a matter is open and investigative steps, prosecutorial decisions, or judicial proceedings are ongoing. As Mr. Weiss and his office have repeatedly stated, his investigation remains ongoing.
The public’s strong interest in the integrity of law enforcement work is one critical reason that counsel for the Department must be present when an agency witness appears before Congress. Excluding agency counsel in these circumstances “undermine[s] the Executive Branch’s ability to protect its confidentiality interests in the course of the constitutionally mandated accommodation process.”
In addition, the exclusion of agency counsel interferes with the Executive Branch’s ability to protect potentially privileged information, including law
1
Letter from Assistant Attorney General Carlos Uriarte to Honorable Jim Jordan at 3 (Jan. 20, 2023) (“Jan. 20 Letter”).
2
Compliance with Committee Oversight: Hearing Before the Subcomm. on Responsiveness and Accountability to Oversight (Mar. 9, 2023) (Statement of Assistant Attorney General Carlos Uriarte).
3
Letter from Assistant Attorney General Carlos Uriarte to Honorable Jim Jordan at 2 (July 13, 2023) (“July 13 Letter”);
see also
Letter from U.S. Attorney David Weiss to Honorable Jim Jordan (June 30, 2023) (“At the appropriate time, I welcome the opportunity to discuss these topics with the Committee in more detail, and answer questions related to the whistleblowers’ allegations consistent with the law and Department policy.”);
id.
(stating the case was ongoing and that “at this juncture,” “I am not at liberty to provide the materials you seek” and that “I am required to protect confidential law enforcement information and deliberative communications related to the case”).
4
Position of the Executive Department Regarding Investigative Reports
, 40 Op. Att’y Gen. 45, 46 (1941).
5
Jan. 20 Letter at 3;
see also Legislation Providing for Court-Ordered Disclosure of Grand Jury Materials to Congressional Committees
, 9 Op. O.L.C. 86 (1985) (The “Executive alone is entrusted with the enforcement of the laws” and must be able to make “decisions as to whether the release of law enforcement materials to Congress, a branch of government constitutionally forbidden to prosecute individual cases, would interfere with the Executive’s prosecutorial discretion.”).
6
See generally
Linder Letter
;
see also, e.g.
,
Trump v. Mazars USA LLP
, 140 S. Ct. 2019, 2031-32 (2020).
7
Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before Congressional Committees
, 41 Op. O.L.C. __, *5 n.6 (Jan. 18, 2017). In addition, the subpoenas and
The Honorable Jim Jordan Page 3 enforcement sensitive information.
The underlying principles that inform the Department’s position are longstanding across administrations. Here, the subpoenas issued by the Committee prohibit the attendance of agency counsel at appearances by two FBI employees where the Committee has indicated it will ask questions regarding information they learned within the scope of their official duties, including regarding the ongoing criminal investigation. These subpoenas lack legal effect and cannot constitutionally be enforced.
Even so, the Department is eager to continue providing information to the Committee voluntarily, consistent with applicable obligations under the constitutionally mandated accommodation process, our legal and ethical duties, and our commitment to transparency in the public interest. We respect and give due weight to your interest in the individual ongoing criminal investigation you identified, as the Department explained when providing you responsive information in our July 13 letter. This is in addition to the information that Congress received from Mr. Weiss himself, which also addressed questions you asked about this matter. As we and Mr. Weiss himself have noted, the most appropriate time for any testimony on the subject of any individual ongoing criminal investigation is after the matter is closed, especially where the matter is pending before a court and subject to judicial supervision, and legal and ethical bars limit what the Department can say. Therefore, any testimony at this early juncture must be appropriately limited to protect the ongoing matter and important confidentiality interests. With respect to your subpoenas dated August 21, although it would not be appropriate for Department personnel to discuss the ongoing investigation or answer any questions about the Department’s work in the absence of agency counsel, we welcome discussion with the Committee about topics that would be appropriate and the circumstances for providing that information. We stand ready to have that discussion immediately and will reach out to your staff today to schedule a call. Sincerely, Carlos Felipe Uriarte Assistant Attorney General
accompanying letters could encompass information the Department may be precluded from sharing with the Committee by law, such as information protected by 26 U.S.C. § 6103 and Federal Rule of Criminal Procedure 6(e).
8
See id
.;
see also Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees
, 43 Op. O.L.C. __, at *8 (May 23, 2019) (The authority to control disclosure of this information “extend[s] to
all
. . . information protected by [executive] privilege, including . . . law enforcement files[.]” (quoting Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, 28 Op. O.L.C. 79, 81 (2004)).
9
See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees
, 43 Op. O.L.C. __, at *2.
CARLOS URIARTE
Digitally signed by CARLOS URIARTE Date: 2023.08.29 20:24:24 -04'00'
