Bragg sues to stop Jim Jordan's investigation of the Trump prosecution

Alvin Bragg, the Manhattan DA who is prosecuting Donald Trump, has sued House Republicans to prevent them from subpoenaing Mark Pomerantz, a former assistant Manhattan DA. Pomerantz criticized aspects of Bragg’s investigation into former Trump. Bragg’s complaint is here.

I haven’t had time to carefully analyze the lawsuit. However, here are some preliminary thoughts, for what they are worth.

First, the investigation into the Trump prosecution is asserted to be a legitimate exercise of Congress’ oversight duty. Specifically, the committee cites the need for:

(1) congressional scrutiny about how public safety funds appropriated by Congress are implemented by local law-enforcement agencies, (2) oversight to inform potential legislative reforms about the delineation of prosecutorial authority between federal and local officials, and (3) consider[ation] [of] legislative reforms to the authorities of special counsels and their relationships with other prosecuting entities.

To me this is a stretch and, frankly, a pretext. However, that’s often the case with congressional investigations. It’s not unusual for either party to go far afield to investigate what it wants to and, if challenged, to come up with a dubious “oversight” hook.

Second, sound separation of power considerations counsel against courts deciding what Congress can and cannot investigate. Therefore, as this report by Politico says, “courts have long been wary of policing Congress’ investigative power, and even more loath to delve into the mindset of individual lawmakers who are pursuing politically explosive investigations.”

Third, in a case this politically explosive, it matters which judge has the matter and which president appointed him or her. Here, the U.S. District Court Judge is Mary Kay Vyskocil. She’s a Trump appointee, I think, but unlike so many of them, was confirmed by the Senate with little opposition in 2019.

Before becoming a district court judge, she served on the U.S. Bankruptcy Court for the Southern District of New York, assuming that role in 2016. Before that, she did commercial litigation for a top New York City law firm.

Vyskocil does not appear to be a partisan. Moreover, a number of Trump-appointed judges have ruled against his interests (and let’s be honest, it’s Trump’s interests that Jim Jordan and other House Republicans are promoting here).

Even so, Jordan et al are probably lucky that Vyskocil is on the case because she’s likely to take seriously the separation of powers concerns they will assert. A Democratic appointee might not.

Fourth, Bragg alleges that the Pomerantz subpoena includes improper requests for confidential investigative materials compiled during his probe of Trump. The district court should weigh these arguments. To the extent they have merit, it should limit production in ways that protect legitimate confidentiality and related concerns. The court might also limit production to documents that fit the three oversight purposes asserted by the Republicans (as set forth above).

Fifth, Pomerantz has already published a book about Bragg’s investigation. Although Bragg discouraged publication, he did not go to court to prevent it, nor did he try to block Pomerantz from giving interviews about the book’s content.

It’s true that no prosecution was underway when Pomerantz published his book. Even so, Bragg’s outrage that Pomerantz will be talking to Congress about the DA’s investigation of Trump may ring hollow.

I’m sure there’s plenty more to be said regarding this unusual case about an unusual congressional investigation, but that’s all I have now.