The House Judiciary Committee and the Justice Department agreed Wednesday to pause a court case over congressional subpoenas rather than have Attorney General Merrick B. Garland and House Judiciary Chairman Jim Jordan, R-Ohio, appear for a hearing next week.
Faced with an ultimatum from Judge Ana Reyes of the U.S. District Court for the District of Columbia, both sides opted to avoid having such a showdown over the litigation, which is tied to the petered-out Republican impeachment inquiry against President Joe Biden.
In part, the move hinges on the uncertainty of which party might be in control of the House in the next Congress and whether the chamber would continue to pursue the subpoenas.
“It allows both of you to maintain your positions without either of you having to back down, [because] whatever happens in the 119th Congress will be out of both of your hands,” Reyes said.
“Therefore, none of you have to back down, none of you have to cry uncle,” she said.
An online court docket order states that the parties, within 90 days of the swearing in of the new Congress, will file a report telling the court if they plan to go forward with the lawsuit.
The Judiciary Committee subpoenaed two DOJ officials, Mark Daly and Jack Morgan, who the lawsuit states have firsthand knowledge of irregularities in the agency’s investigation that “appear to have benefited Hunter Biden.”
The Justice Department and the House’s Office of General Counsel showed no signs of coming to a resolution in court on Wednesday.
The federal lawsuit, which asks the court to compel the officials to testify, states the Justice Department directed the attorneys to defy the subpoenas because agency counsel would not be allowed to attend under House rules.
On Wednesday, Reyes urged both sides to agree to a stay in the case, telling them to take “this final, final lifeboat I am giving you all to get out of this mess.”
Before making the offer, Reyes railed against positions proffered by the Justice Department and the House’s Office of General Counsel.
The judge implied that the dispute was a “ridiculous waste of taxpayer money” and slammed the practicality of the litigation.
The judge said both sides negotiated in good faith in settlement discussions but commented that both sides were “ridiculous” for not being able to come to an agreement. She also accused them of “abusing the court.”
Reyes tore into the arguments from the House, pointing out that chamber panels have already released a 291-page impeachment inquiry report that said the committees “obtained significant evidence.”
There’s a zero — or near zero — percent chance the two subpoenaed officials would have any information to substantiate a suspicion that President Biden was involved with the department following or not following procedures, Reyes said.
The federal judge also had criticism for the Justice Department, at one point demanding to know who at the highest levels in the department signed off on instructing the two officials not to comply with the congressional subpoena.
Reyes also said the department’s separation of powers concern was “overblown.”
The status conference in the case comes more than a month after court filings show the subpoena dispute had taken up hundreds of attorney hours at an approximate cost of more than $443,000.
House General Counsel Matthew Berry estimated in a declaration filed in mid-September that his office spent 485 attorney hours to date litigating the case, with an equivalent cost estimate of $339,850.
Elizabeth J. Shapiro, a Justice Department official, wrote in a separate declaration that there’s been approximately 445 attorney hours spent litigating the case. The effort would be the equivalent of about $103,382, according to the document.
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