By publishing a book about the investigation of former President Donald Trump, an ex-prosecutor created a predicament for himself—and for the man pressing the historic criminal case against Trump, District Attorney (DA) Alvin Bragg.
U.S. District Judge Mary Kay Vyskocil wrote that Bragg appears unlikely to succeed “on the merits” of his arguments against Pomerantz’s subpoena. At Bragg’s request, an appeals court has put the subpoena on hold temporarily.
Pomerantz’s Predicament
Vyskocil concluded that the House Judiciary Committee has a “valid legislative purpose” for questioning Pomerantz, despite protestations from both Pomerantz and Bragg.Pomerantz complained that the subpoena will put him in an “untenable position,” forcing him to choose between ethical and legal consequences.
The tell-all book was released in February, a year after Pomerantz left the Manhattan DA’s office in disgust over Bragg’s decision not to pursue a Trump indictment then.
From 2021 to 2022, Pomerantz had worked pro bono—without payment—as a special assistant DA investigating the Trump case. Most of that work was done under Bragg’s predecessor, Cyrus Vance Jr.; Pomerantz left in February 2022, a month after Bragg took office.
‘Political Theater’
Critics have raised concerns the move is political, coming just months after Trump declared he was running to become the Republican Party’s nominee for the 2024 presidential election.In his attempt to block Pomerantz’s subpoena, Bragg argued that subjecting Pomerantz to the congressional inquiry would reveal information that should be confidential.
“The court rejects the premise that the committee’s investigation will interfere” with Bragg’s case against Trump, Vyskocil wrote, noting Pomerantz’s status as “a private citizen and public commentator” and is no longer in his role as a special prosecutor.
The judge wrote, “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.”
In further objecting to the subpoena, Bragg argued that there was no other case in which Congress attempted to subpoena a state prosecutor to “extract information about an ongoing state prosecution.” However, the judge pointed out, “There also is no prior case in which a former President of the United States has been criminally charged in a state trial court.”
As a result, it appears that “both parties swim in untested waters,” Vyskocil wrote.
The judge said she was “unmoved” by Bragg’s expressed concern of “injecting partisan passions into a forum where they do not belong.”
Judge Cites Book
She said Pomerantz’s observations about the Trump case included: The central facts of the case “did not amount to much in legal terms.”Other sections of the book note that creating false business records is a misdemeanor and that no felony crime appeared to be “in play,” the judge said. Pomerantz’s book says no New York court had ever tested a case that elevated a misdemeanor to a felony by alleging that the misdemeanor was committed to cover up a federal crime.
Yet Trump was indeed charged with 34 felony counts of falsification of business records. The former president has pleaded not guilty.
He is accused of covering up an election-influencing “hush-money payment” to an adult film actress. Stormy Daniels, whose real name is Stephanie Clifford, had agreed to keep quiet about her allegations of a 2006 affair with Trump after his lawyer, Michael Cohen, paid her $130,000 just before the November 2016 election.
Vyskocil said Pomerantz’s book declares: “Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.”
Payments Legal?
A former head of the Federal Election Commission (FEC) recently told The Epoch Times that he believes it would be illegal for Trump to have used campaign funds for the Clifford payment.Candidates are barred from using campaign funds for any expense that benefits them personally and politically; the Clifford payment arguably falls into that category, Bradley Smith, former FEC chair, said.
Pomerantz raised concerns about Trump being accused of election-related offenses after his inauguration, Vyskocil said, and he revealed that prosecutors harbored “credibility” concerns about basing much of their case on Cohen, who had admitted to lying to Congress.
Further, she said Pomerantz opined that prosecutors would be running “a big risk” that such a case against Trump would be dismissed before it reached a jury.
In his book, Pomerantz conceded that the Trump case belonged under the purview of the U.S. Department of Justice, not the New York DA; Pomerantz also said federal prosecutors wouldn’t have had to “torture” or “massage” statutory language to score an indictment of Trump.
‘Public Relations Tirade’
But on March 30, a grand jury indicted Trump; that same day, information leaked into media reports, Vyskocil pointed out, noting that grand jury secrecy was already “compromised before an indictment was announced.”
On April 11, a week after Trump appeared in court and pleaded not guilty to the charges, Bragg filed a 50-page complaint against Jordan, his committee, and Pomerantz.
“The first 35 pages ... are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump,” Vyskocil wrote. “As framed, this action is merely a motion to quash a subpoena dressed up as a lawsuit.”
‘Political Dogfights’
Vyskocil talked about her role in refereeing the dispute.“In our federalist system, elected state and federal actors sometimes engage in political dogfights,” she said.
The judge said that while presumably operating in good faith, both sides face political realities.
As New York County’s elected prosecutor, Bragg has some constituents who “wish to see Bragg wield the force of law against the former president and a current candidate for the Republican presidential nomination.”
On the other side, Jordan “has initiated a political response to what he and some of his constituents view as a manifest abuse of power and nakedly political prosecution.”
Vyskocil said the stakes are high because the case “could potentially influence the outcome of the 2024 presidential election.”
“The Court does not endorse either side’s agenda,” said the judge, a Trump appointee whom the Senate confirmed in 2019. “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.”
Vyskocil encouraged the parties to “reach a mutually agreeable compromise regarding how the deposition of Mr. Pomerantz will proceed.”
Instead, Bragg challenged Vyskocil’s decision to a higher court.
The next action in the case will come after both sides file briefs; the last one is due April 22 in the U.S. Court of Appeals for the 2nd Circuit. A three-judge panel is to consider whether to take any further action about the disputed Pomerantz subpoena.
