The Volokh Conspiracy

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Court Declines to Block Congressional Subpoena of Former Special Assistant Prosecutor in Trump Prosecution


From Bragg v. Jordan, decided today by Judge Mary Kay Vyskocil (S.D.N.Y.) (and an appeal has already been filed); I'm on the run and don't have the time to focus on it further, but I thought I'd pass along some key paragraphs from the opening and closing parts.

The request by Manhattan District Attorney Alvin L. Bragg Jr. for a temporary restraining order, enjoining enforcement of the subpoena issued to Mark F. Pomerantz by the Committee on the Judiciary of the United States House of Representatives, chaired by Congressman Jim Jordan, is DENIED. The subpoena was issued with a "valid legislative purpose" in connection with the "broad" and "indispensable" congressional power to "conduct investigations." It is not the role of the federal judiciary to dictate what legislation Congress may consider or how it should conduct its deliberations in that connection. Mr. Pomerantz must appear for the congressional deposition. No one is above the law….

On April 6, 2023, the Committee on the Judiciary of the United States House of Representatives (the "Committee") issued a subpoena, directing Mark F. Pomerantz ("Pomerantz"), a former pro bono employee of the Office of the District Attorney for New York County ("DANY"), to appear on April 20, 2023 "to testify at a deposition touching matters of inquiry committed to [the Committee]." The subpoena does not request that Pomerantz produce any documents.

The subpoena was accompanied by a letter from the Chairman of the Committee, Jim Jordan ("Jordan"). The letter requests Pomerantz's appearance due to his "unique role as a special assistant district attorney leading the investigation into President Trump's finances." It further explains that Pomerantz has "already discussed many of the topics relevant to [the Committee's] oversight in a book [that Pomerantz] wrote and published in February 2023, as well as in several public interviews to promote [his] book." Jordan notes that DANY has "acknowledged that it used federal forfeiture funds in its investigations of President Trump," and that the Committee was considering "potential legislative reforms," such as "broadening the existing statutory right of removal of certain criminal cases from state court to federal court."

The book referenced in Jordan's letter is People vs. Donald Trump: An Inside Account, written by Pomerantz and published in early 2023. As its subtitle indicates, the book recounts Pomerantz's insider insights, mental impressions, and his front row seat to the investigation and deliberative process leading up to the DANY case against former President and current presidential candidate Donald Trump. Among Pomerantz's observations:

  • Within DANY, the case against Trump arising out of payment of so-called "hush money" to Stephanie Clifford was referred to as the "zombie" case.
  • The facts surrounding the payments "did not amount to much in legal terms. Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate."
  • "[C]reating false business records is only a misdemeanor under New York law."
  • "[T]here appeared to be no [felony] state crime in play." …

On April 11, 2023, Manhattan District Attorney Alvin L. Bragg, Jr. ("Plaintiff" or "Bragg")—one of five local district attorneys for the five boroughs in the City of New York— filed a 50-page Complaint in this Court, naming Jordan, the Committee, and Pomerantz as defendants. Bragg simultaneously filed a motion, brought on by an ex parte proposed order to show cause, seeking a temporary restraining order and a preliminary injunction (1) enjoining Jordan and the Committee from enforcing the subpoena served on Pomerantz and (2) enjoining Pomerantz from complying with the subpoena ….

In our federalist system, elected state and federal actors sometimes engage in political dogfights. Bragg complains of political interference in the local DANY case, but Bragg does not operate outside of the political arena. Bragg is presumptively acting in good faith. That said, he is an elected prosecutor in New York County with constituents, some of whom wish to see Bragg wield the force of law against the former President and a current candidate for the Republican presidential nomination. Jordan, in turn, has initiated a political response to what he and some of his constituents view as a manifest abuse of power and nakedly political prosecution, funded (in part) with federal money, that has the potential to interfere with the exercise of presidential duties and with an upcoming federal election. The Court does not endorse either side's agenda. The sole question before the Court at this time is whether Bragg has a legal basis to quash a congressional subpoena that was issued with a valid legislative purpose. He does not.