Wray Concedes Biden Bribery Document Exists But Continues Refusing to Produce It, Comer and Grassley Say

“A wonderful thing, subpoena” — as Wilford Brimley quipped (stealing the show as assistant attorney general James A. Wells in Absence of Malice).

I explained in a column we posted earlier today that FBI director Christopher Wray received one of those wonderful things a few weeks back from House Oversight Committee chairman James Comer. For an investigator, a subpoena is wonderful because it is not a suggestion or a request; it is a demand backed by the force of law. That goes as well for congressional subpoenas as for grand-jury and trial subpoenas. They are flouted at the recipient’s peril, which can mean findings of contempt and even criminal prosecution (as former Trump adviser Steve Bannon was reminded last year, while another former Trump adviser, Peter Navarro, is facing a criminal trial for contempt of Congress come September).

No agency of the federal government is more reliant on subpoenas, or more intolerant of noncompliance with them, than the FBI. The subpoena has thus gotten Wray’s attention, though not his cooperation. Finally, with Comer’s threat to hold him in contempt echoed by House Speaker Kevin McCarthy in a recent conversation with the director, Wray has moved off his mulish refusal even to acknowledge the existence of the specific subpoenaed document: a report of an interview with a confidential human source (CHS) recorded in a standard FBI form (FD 1023).

The CHS is said to have claimed that, as vice president, Joe Biden took a $5 million bribe from someone connected to a foreign government (the New York Post plausibly intimates that the government was Ukraine’s, but that has not been established). Comer and Senator Chuck Grassley (R., Iowa), who has also investigated allegations of Biden-family influence-peddling, were confident that the document as described exists because they’d been tipped off by an unidentified whistleblower, apparently a law-enforcement agent with knowledge of the investigation.

Wray conceded the document’s existence this afternoon in a telephone conversation with Comer and Grassley, the lawmakers report in statements that Grassley’s office is circulating. Wray remains adamant, however, that he will not provide a copy of the document to the committee, as commanded by the subpoena.

The director has offered to allow Comer and Representative Jamie Raskin (D., Md.), the committee’s ranking member, to review the document at the FBI’s offices. As I contend in the column, this is the kind of my-way-or-the-highway position the FBI used to get away with when its reputation was better. It used to be enough to get Congress to back off. But after eight years of politicization and scandals, the FBI no longer has that kind of clout.

Wray therefore has to confront the legal reality that he has no sound basis to refuse compliance with a congressional subpoena. The FBI was created by statute, is subject to congressional oversight, and is dependent on Congress for its powers and funding. Even if the document were classified, the bureau would have no authority to withhold from Congress information that is not privileged and is relevant to a committee probe.

As it happens, the document in question is not classified, and Speaker McCarthy has offered to allow Wray to redact details whose disclosure could compromise intelligence sources and methods — as long as Wray transmits the essence of the information. Moreover, lawmakers know that, if the CHS’s statement were ever relevant to a criminal trial, the FBI would have to disclose it to defense lawyers under due-process rules. That kind of discovery goes on all the time; members of Congress are not going to put up with a situation in which they, who are trusted with access to defense secrets, are denied access to a non-classified witness statement that would routinely be disclosed to a criminal defendant.

And of course, Wray knows that the subpoena is a legal directive he cannot ignore as long as the House is serious about enforcing it. Otherwise, he would not have admitted that the document exists and offered limited disclosure that he’d be able to control. He’s not doing that because he’s an accommodating fellow; he’s doing it because he is under legal compulsion.

Unsurprisingly, then, Comer and Grassley have admonished Wray to stop acting like he’s holding the cards and produce the document forthwith to the full committee. Otherwise, Comer will commence contempt proceedings. Here is Comer’s statement:

Today, FBI Director Wray confirmed the existence of the FD-1023 form alleging then-Vice President Biden engaged in a criminal bribery scheme with a foreign national. However, Director Wray did not commit to producing the documents subpoenaed by the House Oversight Committee. While Director Wray — after a month of refusing to even acknowledge that the form existed — has offered to allow us to see the documents in person at FBI headquarters, we have been clear that anything short of producing these documents to the House Oversight Committee is not in compliance with the subpoena. If the FBI fails to hand over the FD-1023 form as required by the subpoena, the House Oversight Committee will begin contempt of Congress proceedings.

Wray can’t win this. He should surrender the document in redacted form. If he keeps stonewalling, people will assume — perhaps wrongly but understandably — that his Biden administration superiors have ordered him to defy a lawful subpoena and that Wray does not have a satisfactory answer to Comer’s next logical question: Once it got this information, what did the FBI do to investigate?