Judge says Congress has legit legislative purpose in probing Bragg’s enforcement practices, but appeals court temporarily blocks subpoena of Bragg subordinate.
A federal judge has rebuffed the lawsuit filed by Manhattan DA Alvin Bragg, who is seeking to obstruct House Judiciary Committee Chairman Jordan’s congressional investigation because, he argues, Jordan is seeking to obstruct Bragg’s prosecution of former president Donald Trump.
The ruling by Southern District of New York (SDNY) Judge Mary Kay Vyskocil paved the way for the Judiciary Committee to depose Mark Pomerantz, the former special assistant district attorney in Bragg’s office who ran the Trump investigation and then wrote a memoir about it. By then, Pomerantz had resigned in disgust over Bragg’s decision to close the probe without charges. Bragg, of course, reversed himself nearly a year later, absurdly indicting Trump over his recordkeeping in the Stormy Daniels hush-money caper — an extraordinarily weak case that is not the one Pomerantz wanted to bring. (He was focused on Trump’s history of financial and business dealings, which became the grist for New York AG Letitia James’s pending civil fraud suit against Trump, which was filed with great fanfare after Bragg’s office declined to bring criminal charges.)
Nevertheless, Pomerantz’s appearance before Jordan’s committee is now on hold, at least temporarily. Both Bragg and Pomerantz sought an emergency stay from the Second Circuit federal appeals court (also in Manhattan) last night. The New York Times reported this morning that the Circuit has blocked enforcement of the committee’s Pomerantz subpoena while it studies the arguments and weighs whether the deposition should be enjoined while the judges consider the appeal.
If you’ve been following our coverage (see here, here, and here), none of this will be surprising. Judge Vyskocil is clearly right that the court has no business telling Congress what it may or may not investigate (any more than Congress or the court has any business telling Bragg whom he may or may not indict). And a court will not look into a congressional committee’s ulterior motives (such as helping Trump) as long as Jordan has a proper legislative purpose for conducting the investigation, which he does (at a minimum because Congress sends taxpayer money to the DA’s office, but for other reasons, too).
Nevertheless, the case may not be as straightforward as Vyskocil’s ruling suggests. The DA’s office is a law-enforcement arm of the state — i.e., it is part of a sovereign government that does not answer to Congress in our federalist system, and it carries out a function as to which states have sweeping authority. Republicans may be right that, when he published his memoir, Pomerantz waived any privileges against disclosure that he may have had; but that did not necessarily operate to waive the privileges of the DA’s office, which did not approve Pomerantz’s book.
The question is whether Congress’s interests — in examining how Bragg’s office utilizes federal funding, in the enforcement of the 14th Amendment’s due process and equal-protection guarantees, in how federal resources might be brought to bear in addressing New York City’s crime problems, and so on — override the state’s sovereign prerogatives in conducting law-enforcement operations. That, undoubtedly, is what the Second Circuit is considering. In the end, it is doubtful that the court will block Pomerantz’s deposition, but it may put some limits on the questioning.
As I’ve tried to point out, in a sane world, both Bragg and Jordan would respect the fact that each has legitimate interests, and they would negotiate a compromise in which the committee got information to which it was entitled while Bragg withheld information about his office’s policy deliberations and exercises of prosecutorial discretion. But that is not the world we are in.
We’ll keep an eye on what the Second Circuit does.