DA Alvin Bragg Sues Rep. Jim Jordan For FEDERALISM, LOOK IT UP, DUDE!

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(Tom Williams/CQ-Roll Call, Inc via Getty Images)

If House Judiciary Chair Jim Jordan thought he’d be able to intimidate Manhattan District Attorney Alvin Bragg by spamming him with nasty letters and demands for documents and testimony pertaining to the investigation and indictment of Donald Trump, he was clearly wrong. Nor was the prosecutor cowed by Jordan’s announcement that he’ll be holding a “field hearing” in New York City Monday with the “victims” of Bragg’s supposedly “pro-crime, anti-victim policies.”

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This afternoon, Bragg’s office filed a complaint against the chairman seeking injunctive relief to block subpoenas pertaining to the pending prosecution. The action, filed in the Southern District of New York, characterizes the moves by the Republican-led House Judiciary Committee, in concert with the Oversight and Administrative Committees, as an “unprecedently brazen and unconstitutional attack by members of Congress on an ongoing New York State criminal prosecution and investigation.”

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Calling the demands for documents and testimony a “transparent campaign to intimidate and attack District Attorney Bragg” the DA moved for both a temporary restraining order and a preliminary injunction.

The Committees have made multiple demands for documents and testimony from Bragg and his employees, to which the DA strenuously objects. But the immediate issue is a congressional subpoena for attorney Mark Pomerantz, a prominent litigator who came out of private practice to work on the Trump prosecution. When Bragg refused to indict criminally on the charges which form the basis of the civil complaint filed by Attorney General Letitia James, Pomerantz and Dunne resigned loudly. Pomerantz then wrote a scathing book about his experiences and, according to the complaint, failed to clear any part of it with his former employer. Now Jordan et al are demanding testimony and documents from Pomerantz on the theory that he can offer proof of his former boss’s improper partisan motivation. They also allege in their subpoena letter that, “Your book also contributed to the ‘political pressure’ on District Attorney Bragg to bring charges against former President Trump.” Although how Pomerantz, who resigned a year ago and was not involved in the false business records indictment, could speak to Bragg’s subjective motivation is unclear.

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“By definition, then, he has no legitimate legislative purpose for issuing this subpoena. The subpoena threatens the sovereign powers of the States, confidence in the secrecy of grand jury proceedings, and the integrity of an ongoing criminal prosecution,” writes lead attorney Ted Boutrous of Gibson, Dunn & Crutcher LLP. “This Court should enjoin its enforcement.”

Bragg makes several arguments against the Pomerantz subpoena, as well as any of the future subpoenas Jordan and his pal Rep. James Comer have promised. He notes that Pomerantz’s prosecutorial communications are covered by privilege, which DA has not waived since the office never signed off on his manuscript — although it’s not clear that attorney-client or work product privilege can be used to defeat a congressional subpoena. He also cites the need to respect grand jury secrecy, as well as due process.

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Members of Congress are not free to invade New York’s sovereign authority for their or Mr. Trump’s political aims. Congress has no authority to “conduct oversight” into District Attorney Bragg’s exercise of his duties under New York law in a single case involving a single defendant. Nor can Congress force a former prosecutor to make extrajudicial statements during a criminal prosecution about that prosecution or related criminal investigations—statements that the  New York Rules of Professional Conduct forbid, in part, because they could prejudice Mr. Trump’s right to a fair trial and prompt due process concerns.

Perhaps more pertinently, the prosecutor makes a federalism argument, citing inter alia the Tenth Amendment, Younger abstention, and the test for the legitimacy of congressional subpoena set out in Trump v. Mazars.

Jordan has offered a shifting roster of justifications for his demands, ranging from the minimal federal funding received by the Manhattan DA to the possibility of laws which would allow former presidents to remove their cases to federal court. But Bragg argues that there could be no legitimate legislative purpose in investigating an ongoing criminal prosecution, and certainly not under the Mazars test repeatedly urged on the court by Jim Jordan’s allies as they sought to block subpoenas by the January 6 Select Committee.

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The case has been assigned to Judge Mary Vyskocil, a Trump appointee (although one who was unanimously approved by the Judiciary Committee and put on the US Bankruptcy Court by Obama in 2016). Judge Vyskocil declined to issue a TRO, instead scheduling a hearing on April 19th on the requested injunctive relief. That’s one day before the Committee has demanded that Pomerantz show up and testify.

Remember when we thought things would get normal again when Trump left office? LOL!

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Bragg v. Jordan [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

Alvin Bragg, Government, Jim Jordan