Judge Vyskocil schools Alvin Bragg

Judge Mary Kay Vyskocil has denied Manhattan District Attorney Alvin Bragg’s request for a temporary restraining order enjoining enforcement of the subpoena issued to Mark Pomerantz, a former prosecutor in Bragg’s office, by the House Judiciary Committee. The Committee’s chairman, Jim Jordan, wants to obtain deposition testimony from Pomerantz pertaining to Bragg’s garbage prosecution of Donald Trump.

Rushing headlong into separation of powers concerns, Bragg is asking the judiciary to restrain a congressional investigation with a valid (though not compelling) legislative purpose. He was never going to succeed with a judge willing to play the matter straight.

He did not succeed with Judge Vyskocil, as predicted by a reader directly involved on the GOP side during the Trump judicial confirmation wars. The judge rejected Bragg’s request in no uncertain terms. Indeed, she threw his words — and those chronically employed by Trump’s enemies — back at him in the very first paragraph of her decision:

The subpoena [for testimony by Pomerantz] was issued with a “valid legislative purpose” in connection with the “broad” and “indispensable” congressional power to “conduct investigations.” It is not the role of the federal judiciary to dictate what legislation Congress may consider or how it should conduct its deliberations in that connection. Mr. Pomerantz must appear for the congressional deposition. No one is above the law.

(Emphasis added)

Vyskocil also hammered Bragg in her concluding paragraphs:

In our federalist system, elected state and federal actors sometimes engage in political dogfights. Bragg complains of political interference in the local DANY case, but Bragg does not operate outside of the political arena.

Bragg is presumptively acting in good faith. That said, he is an elected prosecutor in New York County with constituents, some of whom wish to see Bragg wield the force of law against the former President and a current candidate for the Republican presidential nomination. Jordan, in turn, has initiated a political response to what he and some of his constituents view as a manifest abuse of power and nakedly political prosecution, funded (in part) with federal money, that has the potential to interfere with the exercise of presidential duties and with an upcoming federal election.

The Court does not endorse either side’s agenda. The sole question before the Court at this time is whether Bragg has a legal basis to quash a congressional subpoena that was issued with a valid legislative purpose. He does not.

In between the introduction and the conclusion, Judge Vyskocil provides additional schooling for Alvin Bragg and his lawyers. For example:

The first 35 pages of the Complaint have little to do with the subpoena at issue and are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump. The same is true of the vast majority of the exhibits. . .

At heart, the Complaint simply includes two requests for declaratory and injunctive relief directed at the congressional inquiry. The reality is that, as framed, this action is merely a motion to quash a subpoena dressed up as a lawsuit.

And, as our reader predicted, the “filing screwups” of Bragg’s lawyers “didn't sit well with the former longtime Simpson Thatcher partner” and “talented litigator.”

The motion for a temporary restraining order was filed without notice to Defendants and before Defendants even were served with the Complaint. In this Court, Local Civil Rule 6.1(d) dictates that any party seeking an ex parte order must submit an “affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made.” No such affidavit was submitted here. . . .

The day before the scheduled hearing, Bragg filed an eleventh hour reply brief, not authorized by the Court’s Scheduling Order given the compressed time frame in which Plaintiff’s motion was brought on. The reply largely rehashes the same arguments made in the moving brief and, for the first time, addresses the Speech or Debate Clause. The reply brief was accompanied by a supplemental declaration attaching sixteen largely irrelevant exhibits, consisting of a hodge-podge of social media postings, news articles, television interviews, pleadings from unrelated lawsuits, and a transcript from the arraignment in the Trump prosecution.

(Emphasis added)

Judge Vyskocil dispatches with ease Bragg’s argument that deposing Pomerantz would interfere with Bragg’s prosecution:

Pomerantz is a former prosecutor. He is not involved in the state prosecution in any way. Bragg provides no reason to conclude that a deposition of a former employee would interfere with DANY or any of its ongoing prosecutions. The pending prosecution will move forward in the ordinary course regardless of whether the Committee deposes Pomerantz.

Further, Pomerantz was not even employed with DANY at the time President Trump was indicted. Pomerantz admits as much. He has stated that the materials in his book would “have no bearing on the litigation of [the criminal prosecution of President Trump]” and would “not prejudice any investigation or prosecution of Donald Trump.”

Moreover, Pomerantz emphasizes that he “was not involved in the decision to bring the pending indictment against Mr. Trump.” Bragg therefore does not satisfy his burden of demonstrating that the subpoena poses a threat “to a state executive officer, a state judicial proceeding, [or] our federal system itself.”

Then comes the zinger:

The Court is further 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.

(Emphasis added)

There’s plenty more schooling packed into this 24 page opinion, including a recitation of facts asserted by Pomerantz in his book about the case against Trump (Opinion at 2-4) that show Bragg’s “zombie case” — as Pomerantz says the matter was known within the Manhattan AG’s office — to be rubbish.

The whole opinion is worth reading.