Judge Nukes Alvin Bragg’s Request To Quash Subpoena Because ‘No One Is Above The Law’
A federal judge on Wednesday denied Manhattan District Attorney Alvin Bragg’s request for a court order to prevent the House Judiciary Committee from questioning a former prosecutor involved in the investigation of Donald Trump. Bragg, however, didn’t just lose on the merits. The court’s 25-page order eviscerated the Manhattan D.A. — and his former prosecutor, Mark Pomerantz.
Two weeks ago, Rep. Jim Jordan, R-Ohio, issued a subpoena directing Pomerantz to appear before the House Judiciary Committee at 10:00 on April 20, 2023. Pomerantz was previously a special assistant district attorney before abruptly resigning because Bragg had allegedly decided not to seek criminal charges against Trump.
Bragg responded to news of the subpoena by directing Pomerantz not to provide any information about his prior work to the Judiciary Committee. He also filed a complaint in federal court against Jordan and the committee, seeking an order declaring the Pomerantz subpoena invalid. Bragg simultaneously sought entry of a temporary restraining order to freeze the subpoena pending resolution of his lawsuit.
On Wednesday, federal Judge Mary Kay Vyskocil denied Bragg’s request to stop the Judiciary Committee from questioning Pomerantz. “Mr. Pomerantz must appear for the congressional deposition. No one is above the law,” Vyskocil wrote in a transparent swipe at the New York prosecutor who hung his pathetic indictment on that platitude.
While Bragg posited that the Judiciary Committee lacked a valid legislative purpose to issue the subpoena, Vyskocil rejected that argument. Congressional committees have the constitutional authority to conduct investigations and issue subpoenas, the court explained, and the court’s role is “strictly limited to determining only whether the subpoena is ‘plainly incompetent or irrelevant’” to any legitimate committee purpose. Because Jordan and the committee identified several valid legislative purposes underlying the subpoena, the court held Bragg could not quash it.
The court also held that the “speech or debate clause,” which provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place,” likely would prevent Bragg from suing Jordan and the committee.
Vyskocil also rejected Bragg’s argument that requiring Pomerantz to submit to questioning would infringe on the attorney-client and work-product privilege the Manhattan D.A.’s office held regarding communications Pomerantz was privy to. Here, the court stressed that the indictment of Trump occurred long after Pomerantz had resigned and that any privilege that may have existed was likely waived by Pomerantz publishing his book, “People vs. Donald Trump: An Inside Account.”
“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 Trump indictment, the court wrote. Yet Bragg did next to nothing to stop the publication of the book. Under these circumstances, “Bragg cannot seriously claim that any information already published in Pomerantz’s book and discussed on prime-time television in front of millions of people is protected from disclosure,” the court concluded.
It Gets Better
The court’s conclusion, however, wasn’t the highlight of the decision. Rather it was Vyskocil’s summary of how the country arrived at a place where it sees a state prosecutor filing a complaint in federal court against the House Judiciary Committee that includes 35 pages and a vast majority of exhibits that “are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump.”
That descriptor alone should give pause to anyone still believing Bragg’s indictment of Trump was righteous. But the opinion highlighted many more facts that confirm the targeting of Trump was a witch hunt.
For instance, it included many excerpts from Pomerantz’s book showing the criminal charges against Trump were ridiculous. So-called “hush money” payments to Stormy Daniels “did not amount to much in legal terms,” Pomerantz wrote. “Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.”
The book excerpts quoted by the court included numerous additional problems Pomerantz saw with the legal theory Bragg eventually relied upon in charging Trump. Trump and his legal team have been highlighting these same many flaws. And now a federal judge just told the country that the “very experienced, sophisticated, and extremely capable attorney” Pomerantz — who had wanted to charge Trump — agreed with all (or most) of Trump’s legal arguments.
The court also noted that Pomerantz was a “pro bono” attorney for the Manhattan D.A.’s office. This should strike the public as strange, especially in light of the well-healed credentials the opinion highlighted: his clerkship at the Supreme Court, his work as a federal prosecutor, and his many years as a criminal defense attorney and partner at the prominent New York City law firm of Paul, Weiss, Rifkind, Wharton & Garrison.
While the court omitted any mention of Paul, Weiss’ connections to the Biden administration and Democrats, referring to Pomerantz’s “pro bono” status should raise some red flags.
If not, Vyskocil was more explicit elsewhere in the opinion, such as when she said she was “unmoved by Bragg’s purported concern at the prospect of ‘inject[ing] partisan passions into a forum where they do not belong.’”
“By bringing this action, Bragg is engaging in precisely the type of political theater he claims to fear,” the court wrote.
Beyond chastising Bragg for playing politics, Vyskocil rebuked him for his legal arguments, most devastatingly when Bragg argued the court should quash the subpoena of Pomerantz to ensure the grand jury’s secrecy.
“The secrecy of the grand jury proceedings in the pending criminal case was compromised before the indictment was even announced,” Vyskocil countered, citing CNN’s coverage of the charges against Trump based on leaks.
The court also unleashed a few zingers on Pomerantz. While Pomerantz complains he is in a “legally untenable position” because he will be forced to make a choice between “legal or ethical consequences” or “potential criminal and disciplinary exposure,” the court “notes that Pomerantz is in this situation because he decided to inject himself into the public debate by authoring a book that he has described as ‘appropriate and in the public interest.’”
And in response to Pomerantz making “it abundantly clear that he will seek to comply with Bragg’s instructions” not to respond to the subpoena, the court remarked that Pomerantz “claimed deference to the District Attorney’s command is a surprising about-face, particularly given that Pomerantz previously declined the District Attorney’s request to review his book manuscript before publication.”
What Next?
Those already well-versed in the outrageousness of the indictment will take delight in the court’s ripostes. The question remains, however, whether the opinion’s detailed summary of the flaws in Bragg’s legal theory — as identified by Pomerantz himself — will convince the remainder of the country that the indictment is a sham. Or will they discard Vyskocil’s decision as a Trump-appointee diatribe?
Maybe it will take the Judiciary Committee questioning Pomerantz on those precise weaknesses for the unconvinced to realize that once again Trump is right — it is a witch hunt.
We should know soon whether the questioning will go forward and whether Pomerantz will respond to the questions or follow Bragg’s directive. But if the latter, both Bragg and Pomerantz will find themselves back in front of Vyskocil because the Trump appointee wisely ruled that any future disputes related to the Pomerantz subpoena or other subpoenas related to the Judiciary Committee’s inquiry must be filed in the same case mater.
Vyskocil’s devastating conclusion likely caused Bragg as much heartache as her denial of his motion to declare the subpoena of Pomerantz invalid. For Bragg knows that absent reversal by the Second Circuit, the same outcome awaits further challenges of the House Judiciary Committee’s subpoena power.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.
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