When House Democrats decided to lock up Peter Navarro for not going along with their hearings, they fundamentally changed the game. Unlike the J6 prosecutions, House subpoenas leading to prison time is breaking new ground.
Everyone used to know how House subpoenas worked. House committees wanted to show off and enlist participants in their, usually partisan, dog and pony show. Generally, administration officials complied. Sometimes they fought them.
Post-Navarro, the Biden administration, wanted to treat House subpoenas as business as usual. And pushback came from a very unexpected source.
U.S. District Judge Ana Reyes, a Biden appointee on the federal District Court in Washington, spent nearly an hour accusing Justice Department attorneys of rank hypocrisy for instructing two other lawyers in the DOJ Tax Division not to comply with the House subpoenas.
“There’s a person in jail right now because you all brought a criminal lawsuit against him because he did not appear for a House subpoena,” Reyes said, referring to the recent imprisonment of Peter Navarro, a former Trump trade adviser, for defying a subpoena from the Jan. 6 select committee. “And now you guys are flouting those subpoenas. … And you don’t have to show up?”
“I think it’s quite rich you guys pursue criminal investigations and put people in jail for not showing up,” but then direct current executive branch employees to take the same approach, the judge added. “You all are making a bunch of arguments that you would never accept from any other litigant.”
It was a remarkable, frenetic thrashing in what was expected to be a relatively routine, introductory status conference after the House Judiciary Committee sued last month to enforce its subpoena of DOJ attorneys Mark Daly and Jack Morgan over their involvement in the investigation of Hunter Biden’s alleged tax crimes.
Reyes has been on the bench for just over a year. Rarely seeming to stop to catch her breath, she repeatedly dressed down DOJ attorney James Gilligan as he sought to explain the department’s position, scolding him at times for interrupting her before continuing a torrid tongue-lashing that DOJ rarely receives from the bench. She delved into great detail about the nuances of House procedure — like the chamber’s rule against allowing executive branch lawyers to attend depositions — and even asked whether the Judiciary Committee had followed internal rules requiring that the ranking Democrat on the panel be notified of the subpoena to the DOJ attorneys before it was issued.
Yet, perhaps even more remarkably, Reyes seemed inclined to support DOJ’s central argument that the line attorneys cannot be compelled to answer substantive questions from Congress. They just need to show up and assert privileges on a question-by-question basis, she said — the type of thing, she said, that DOJ demands from others “seven days a week … and twice on Sunday.”
The upshot here beyond all the niggling is that House subpoenas are a weapon in the balance of power between the White House and Congress.
By locking up Navarro, Dems changed the balance of power. Now they want to change it back. But it doesn’t work that way.
I’ve always said that the only way to limit such abuses is making both sides live by their own rules. What’s good for the goose should be good for the gander.
If failing to comply with a House subpoena leads to prison time, then it should work that way for administration members. That has horrendous implications, but the rollback on that has to be mutual, not unilateral.
Dems would like to see Trump admin members go to prison for not complying with their House subpoenas while Biden admin members can cheerfully flout them. But the rules have to apply to everyone.