Hearing Day in Bragg v. Jordan

As we discussed last week (once fairly seriously, once, well, you know . . .), scheduled for today in Manhattan federal court is the hearing on the civil lawsuit brought by New York County District Attorney Alvin Bragg against House Judiciary Committee Chairman Jim Jordan. Bragg, of course, is an elected progressive Democrat who campaigned vowing to use the office’s power against Donald Trump; Jordan is the Ohio Republican and staunch Trump ally, who is directing a congressional investigation of Bragg’s politicized use of his office’s power against the former president.

For the most part, this is theater.

Bragg claims Jordan is interfering in his prosecution of Trump. Even if that is true, not all interference in a prosecution is illegal — only corrupt interference. As I’ve contended, Jordan’s House committee should not be attempting to coerce testimony and information from a state district attorney about how he runs his office and exercises his prosecutorial discretion. The federal Congress has no jurisdiction or management authority over the state governments and their law-enforcement components, such as the DA’s office.

On the other hand, New York and the DA’s office happily take federal funding. Congress’s authority to examine how the taxpayer dollars it doles out are spent is incontestable. The reality may be that the funding is just Jordan’s foot in Bragg’s door. But that doesn’t make the exercise illegitimate — no more than were the gambits by the Trump-era Democrat-controlled House committees to leverage their legislative missions in pursuit of their true political goal of forcing Trump to reveal his personal financial information, including tax returns as to which he’d reneged on a 2016 campaign promise to disclose.

Bragg’s suit is mostly meritless. Under the Constitution, Jordan has speech-or-debate clause immunity. (See my discussion in a different context here.) In investigating Bragg’s office, he is engaged in legislative activity. (Regardless of whether his ulterior motive is to help Trump, his ostensible motive to investigate federal funding is undeniable.) Moreover, the Article III branch has no authority to tell the Article I branch what it may or may not investigate. That includes Judge Mary Kay Vyskocil of the Southern District of New York (SDNY), the federal judge who is presiding over the Bragg/Jordan litigation.

Nevertheless, even when Congress’s authority to investigate is clear, those from whom it seeks information retain whatever legal privileges they may have to refuse compliance with information demands. Jordan knows our federalist Constitution provides for separation of powers between Washington and the sovereign states. Notice that, while he has publicly requested testimony from Bragg, he has been careful not to subpoena the district attorney. A subpoena is an enforceable order and to issue one is tantamount to claiming power to compel the recipient. Jordan knows that, as a matter of general constitutional principle, he has no such power over Bragg. The chairman’s very public request is best seen as the usual attempt to apply political pressure but pull up short of presuming to make a legal demand.

That brings us to the one place where Jordan has crossed the line: the subpoena he has issued to Mark Pomerantz, the former special assistant district attorney who ran the DA’s office’s Trump probe but quit when Bragg initially closed the probe without charges a year ago.

Jordan obviously rationalizes that, while it would be imprudent to subpoena the sitting DA (Bragg), Pomerantz is no longer with the DA’s office and, as a private citizen, is subject to subpoena. This is specious. Jordan clearly intends to grill Pomerantz about his undisguised contempt for Trump and how that affected the DA’s office’s investigation. (The subject inspired Pomerantz to pen a memoir about investigating the former president, People vs. Donald Trump.) Constitutionally speaking, it is no less offensive for Jordan to subpoena one of the DA’s top subordinates than it would be to subpoena the DA himself, regardless of whether Pomerantz has resigned and is now a private citizen. It is his work at the DA’s office that makes Pomerantz a relevant witness in the Judiciary Committee’s investigation.

Judge Vyskocil should then be tempted to quash Jordan’s subpoena of Pomerantz. (As I noted in the first of the prior columns cited above, Bragg has made Pomerantz a co-defendant with Jordan in his lawsuit, but that is only to support Pomerantz’s refusal to cooperate in Jordan’s investigation.) Jordan may have authority to investigate whatever he wants to investigate, but under separation-of-powers principles, he lacks authority to compel information from state officials about state governmental operations.

But again, it’s not that simple, because New York and the DA’s office take federal funding and the House Judiciary Committee is entitled to examine how they spend it. Pomerantz may have nothing to say about that, or he may have relevant testimony, depending on how the DA’s office has used its funding.

So . . . what should happen here? I’d look for Judge Vyskocil to narrow the issues and urge compromise. That is, (a) she should tell Bragg that Jordan is immune from his suit and that the court has no power to tell a House committee what it may investigate; (b) she should tell Jordan that he is on thin ice seeking to compel testimony from a former state official; and (c) she should encourage the parties to negotiate so that Jordan’s committee gets the information it is entitled to have about the use of federal funds by Bragg’s office, but Bragg’s office withholds information about its policy deliberations and exercises of prosecutorial discretion.

Two final points. First, Jordan could try to claim broad oversight authority over the states and municipal district attorneys under the 14th Amendment — which prohibits states from denying citizens due process and equal protection of law, and explicitly empowers Congress to enforce this prohibition. This is what a progressive Democrat who was heedless of states’ rights would do. I really hope Jordan does not go that route.

Second, in the “be careful what you wish for” department: Mark Pomerantz (who, for a couple of years, was my Criminal Division chief at the U.S. attorney’s office for the SDNY) is a very smart lawyer who knows the criminal law inside and out. He does not despise Trump irrationally. He believes Trump is guilty of many provable felony violations of law. He quit Bragg’s office because Bragg would not green-light the case Pomerantz wanted to bring. That wasn’t the Stormy Daniels nonsense that Bragg finally charged; it was more like the massive civil-fraud case that New York attorney general Letitia James brought against Trump after the criminal prosecutors passed. If Jordan gets his wish and Pomerantz ends up in the witness chair, rest assured that Judiciary Committee Democrats (led, I would bet, by Dan Goldman of New York, a former longtime SDNY prosecutor) will have Pomerantz prepared to lay out what he believes is the case against Trump, in abundant detail.