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.

Comments

[SimonP]

Trump appointee, acting the part.

"The Court does not endorse either side's agenda." She has a funny way of describing those two agendas, then!

[Rev. Arthur L. Kirkland]

Just calling balls and strikes, some might say.

More important: Finally, a decision in Trump-related litigation that Prof. Volokh finds noteworthy!

[Frank Drackman]

Jeez, Jerry Sandusky, you keep beating me to the punch!
Hey (now) it's better than what you did to your players...

and I know you're a former Foo-Bawl Coach at a Decent for the North School, that in the SEC would be on the scale of umm, Auburn, a few Natties, often overrated, more often underperforming, frequent Scandals,

So please expand on what makes the Decision noteworthy?

Oh, actual thinking, instead of fucking some recruit in the ass? Google it,

Frank

[Rev. Arthur L. Kirkland]

The charms of a white, male, right-wing blog that caters to an audience of disaffected, bigoted misfits and Republican culture war debris.

[Gandydancer]

Seems like an accurate, neutral, description to me.

[SimonP]

Yes, your total lack of reading comprehension is well-established at this point. No need to beat a dead horse there.

[Joe_dallas]

At the same time - you seem to endorse a double standard or you are oblivious to the double standard.

[SimonP]

What “double standard” do you think I’m “endorsing”?

All that my comment is noting, here, is that the judge claiming not to endorse any agenda nonetheless insinuates that Bragg is pushing a meritless, politically-motivated prosecution of Trump, while describing Jordan’s own efforts as merely investigating that abuse of power. She “presumes” Bragg is acting in good faith while refusing to consider for purposes of her decision that he actually is.

If you’re trying to rope in some presumed stance on House investigations of Trump – i.e., the usual whataboutism engaged in by the morons here – then please don’t assume you know what I think about them.

[Joe_dallas]

SimonP 3 hours ago (edited)
What “double standard” do you think I’m “endorsing”?

SimonP 19 hours ago
Flag Comment Mute User
Trump appointee, acting the part.

"“The Court does not endorse either side’s agenda.” She has a funny way of describing those two agendas, then!"

Simon - perhaps its your first post provides a good hint of the double standard that is being embraced.

[SimonP]

So your comment is even dumber than I’d assumed. Got it.

[Armchair Lawyer]

What could be considered an "item of value" when considering bribery charges?

If a prosecutor was also simultaneously obtaining royalties on a book for the very case he was investigating and prosecuting...well, at the very least that's a major conflict of interest.

At the most? It may be considered bribery, as the book publisher is providing royalties in exchange for the prosecutor recommending further charges (in the case at hand), in order to increase the sales of the book.

Regardless, a full investigation is called for.

[not guilty]

"If a prosecutor was also simultaneously obtaining royalties on a book for the very case he was investigating and prosecuting…well, at the very least that’s a major conflict of interest.

"At the most? It may be considered bribery, as the book publisher is providing royalties in exchange for the prosecutor recommending further charges (in the case at hand), in order to increase the sales of the book."

WTF?? Mr. Pomerantz wrote his book after leaving the District Attorney's office. His participation in the investigation did not occur simultaneously with obtaining book royalties.

The suggestion of bribery is completely off the wall. At the time any royalties were paid, Mr. Pomerantz had no more authority to recommend prosecution than any other private citizen.

Armchair Lawyer, where and when did you obtain your legal training, if any?

[Armchair Lawyer]

A "pro bono" prosecutor writes a book, collecting royalties, about a prosecution that is ongoing, that he was working on less than a year earlier.

Seems like a nice way to make a buck. It's not much of a book if you don't push and recommend charges.

[ObviouslyNotSpam]

Reportedly, Bragg tried to stop (or at least delay) him from doing so, but he published the book anyway. Yes, it was ethically dubious, and could have compromised the case against Trump.

You may recall that Pomerantz quit in a very public protest against the fact that Bragg had not (yet) brought charges against Trump. So, obviously, he would have pushed for and recommended charges anyway.

[David Nieporent]

Seems like a nice way to make a buck. It’s not much of a book if you don’t push and recommend charges.

Um, Pomerantz's entire point in writing the book was because charges weren't pursued.

[Gandydancer]

Nonsense. There's not the slightest indication that Pomerantz wouldn't have written the book if Trump had been charged. His "pro bono" contributions to the case would have probably made for a more lucrative book deal if he'd managed to get Trump charged before signing whatever deal he signed, but that's a different observation.

[Armchair Lawyer]

Ah yes. A "pro bono" prosecutor, so motivated, that he wrote an entire book on why charges should be pushed.

Fact he gets a nice pay day out of it....well... These things just seem to happen.

[Rev. Arthur L. Kirkland]

Nice payday? He was a partner at Paul Weiss. He lost money here.

This blog’s turnip-truckers would not understand. And wouldn’t want to.

This guy earned more in a year than a Bob from Ohio would make in a couple of decades proofreading downscale deeds in White Bread, Ohio.

Carry on, clingers.

[The Margrave of Azilia]

Of course the *federal* investigation should be limited to federal issues. Jordan mentioned federal forfeiture funds (say that 10 times fast) and removal legislation.

The book-royalty-as-bribe quesiton would only come into federal cognizance if they could relate it to copyright in some way, IMHO.

[Michael P]

Even if the book publisher is based in the state of New York, the book itself is moving in interstate commerce. As long as the Supreme Court holds that broad reading of the Commerce Clause, Congress should remember and apply it.

[Gandydancer]

"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”."

Sounds like a solid hook to me. And the “royalty-as-bribe question” would be legit, too, since we’re talking about the ethics of Federal prosecutors, though I’m not seeing that Jordan raised it.

[Gandydancer]

...strike that bit about FEDERAL prosecutors. I guess without the "federal forfeiture funds" corrupt local prosecutions are not a Federal issue.

[Kazinski]

Quite a stretch.

Besides we all know it had nothing to do with money.

Its not a crime of bribery, its a hate crime.

[Armchair Lawyer]

It's less of a stretch that the existing case against Trump.

[Dr. Ed 2]

"Mark F. Pomerantz ("Pomerantz"), a former pro bono employee of the Office of the District Attorney"

Pro Bono?!?

OK, who was paying him?!? And why?!?

[Rev. Arthur L. Kirkland]

I probably shouldn't share this, but . . .

It was Soros. And a coalition of transgender activists, adrenochrome harvesters, godless commies, and Muslims.

And, of course, the Jewish Space Laser Corporation.

[Frank Drackman]

You know what you shouldn't "share"
your cock with a whole generation of Penn State Recruits,

then you wouldn't be "Confined" to
https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx

Frank

[Rev. Arthur L. Kirkland]

Still claiming you censored liberals because you were enforcing "civility standards," Prof. Volokh?

You should try to come clean. It might ease your conscience, and make you a better person.

[not guilty]

Pro bono publico -- for the good of the public -- indicates that counsel is not being paid.

[Gandydancer]

And since “Pomerantz was sworn in as a special assistant district attorney (DA) in the office of New York County District Attorney Cyrus Vance Jr., to assist with that office’s criminal investigation into the personal and business finances of former president Donald Trump.[24][5]” it’s pretty clear that he must have been very motivated to give up his normal income stream (or at least trade it for future book royalties) in order to do that.

That giving such a motivated prosecutor access to the powers of a prosecutor is actually "for the good of the public" is very much in question.

[ObviouslyNotSpam]

Are you unable to use Google for some reason?

He took a year off from being a highly paid partner at Paul Weiss to play prosecutor in an ultra-high profile case. Don't worry, he won't suffer financially!

[David Nieporent]

OK, who was paying him?

Do you know what the words "Pro Bono" mean?

[Gandydancer]

It means someone with an interest in having him attack Trump was paying him. Though maybe his own partisanship and riches would have made it a satisfying hobby even without the book deal.

[David Nieporent]

You could've just said, "No."

[Gandydancer]

Interestingly, his Wikipedia article doesn't mention the "pro-bono" bit.

It's pretty damning, actually. Were any of the prosecutors hired by Mueller "pro bonos" from the staff of Perkins Coie?

[not guilty]

For whatever reason, the district court's opinion omits any discussion of federal-state comity, which the Supreme Court has described as:

"the notion of 'comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."

Central to Younger was the recognition that ours is a system in which
"the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States."

Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975), quoting Younger v. Harris, 401 U.S. 37, 41 (1971).

We shall see what the Second Circuit Court of Appeals has to say.

[ObviouslyNotSpam]

Pomerantz isn't a state employee.

[Kenneth Almquist]

Good point. Jordan requested information from Bragg's office, but so far has only issued a subpoena for Pomerantz, who is no longer working for Bragg. Additionally, Pomerantz has written a book about the case, so clearly he doesn't consider himself to be in a position where he cannot say anything at all about the case. The ruling doesn't prevent Pomerantz from declining to answer specific questions if those questions address aspects of the case that Pomerantz is not at liberty to discuss; it simply says he has to show up. So the ruling in this case seems correct to me.

[The Margrave of Azilia]

Maybe the Second Circuit will uphold our glorious tradition of STATES RIGHTS!!!!

/sarc

[Kazinski]

I will just point out the supreme court is talking about the Federal courts respecting state court functions and jurisdictions.

That has nothing to do with congressional jurisdiction, which of course Younger has nothing to do with.

[LawTalkingGuy]

Probably correct. Congress’s authority to investigate shouldn’t be undermined even if the legislative purpose is to fluff one specific dude.

[Krayt]

Rats. I was hoping Congress’ power to investigate for completely facetious reasons, when actually investigating to hurt a political enemy, would be denied.

Hope springs eternal every time it happens. Which is unusually frequent the past five years. 🙁

[Commenter_XY]

The phrase, "Sauce for the goose is sauce for the gander" comes to mind = 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.

This made me chuckle = No one is above the law….it is, how do I say it, such an overused phrase these days.

It is now April 2023. How do you think April 2024 looks...better? Our division is going to get worse. Much worse.

[Sarcastr0]

Or it won't. These things happen in cycles.

No need to go doomer.

[Gandydancer]

More on point, what's your motive for pretending that everything is hunky-dory?

[Brett Bellmore]

It's more like a spiral than cycles, actually. With each pass it gets worse.

[Sarcastr0]

People said the same shit in 1968. They wrote it down, in fact.

[hobie]

Did Hillary show up when summoned for the Benghazi hearings? Asking for a friend.

[David Nieporent]

All 143 of them.

[Gandydancer]

And then she lied her ass off.

[Rev. Arthur L. Kirkland]

Did you hear that on Fox News, clinger?

Prepare for replacement.

[Stephen Lathrop]

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 notion that Trump's prosecution for anything somehow has power to interfere with presidential duties seems groundless, unless some inference of continuing executive power for Trump figures in. That this judge imputes continuing power for Trump is all but explicit in, "Bragg wield the force of law against the former President and a current candidate for the Republican presidential nomination." The horrors the judge fears are apparently in opposition to other horrors the nation ought to guard against—such as a notion that Trump enjoys some kind of continuing personal sovereignty though out of office.

[Rip Murdock]

Appeals Court Delays Ex-Prosecutor’s Deposition on Trump Investigation

The Second Circuit ordered Mr. Bragg and Mr. Pomerantz to file legal arguments on Friday and Mr. Jordan’s lawyers to file the following day. The question of whether Mr. Pomerantz will be questioned is likely to extend into at least next week.