Appeals Court Grants Bragg’s Request to Temporarily Freeze House Subpeona

Appeals Court Grants Bragg’s Request to Temporarily Freeze House Subpeona
Manhattan District Attorney Alvin Bragg listens at news conference in New York in a Feb. 7, 2023, in a file photo. (Seth Wenig/AP Photo)
Gary Bai

The 2nd Circuit Court of Appeals on April 20 issued a temporary administrative hold on the return date of the House Judiciary Committee’s congressional subpoena to Mark Pomerantz, a former prosecutor at Manhattan District Attorney Alvin Bragg’s office.

Pomerantz investigated former President Donald Trump’s finances before leaving Bragg’s office in February 2022 in protest of Bragg’s initial unwillingness to bring an indictment against Trump. Bragg then brought the indictment against Trump in late March, prompting Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, to initiate a probe into what Jordan calls a “politically motivated” prosecution against a former president. Jordan subpoenaed Pomerantz to seek his testimony. In response, Bragg sued the House Judiciary Committee and Pomerantz to prevent Pomerantz from testifying.

The appeals court’s April 20 order temporarily froze a lower court’s ruling on April 19 that declined Bragg’s request to block Pomerantz from testifying to Congress. It allowed Pomerantz to delay his testimony until early next week, when a three-judge panel will decide whether to put the subpoena on a longer hold as Bragg appeals the lower court’s decision.

The court indicated that the order doesn’t reflect its opinion of the merit of Bragg’s case but is only a temporary hold to allow it to review Bragg’s application. The court instructed the parties to complete court filings on a permanent stay on the ruling.

It came as the latest development in the legal clash between House Judiciary Committee lawmakers, which centers on the question of whether Congress has the authority to become involved in the Manhattan DA’s prosecution of a former president.

District Judge Mary Kay Vyskocil, a Trump appointee, ordered on April 19 that the congressional panel has the authority to become involved in the investigation of Trump because it has legitimate legislative interests.

The lower court’s order, a victory for the Judiciary Committee’s lawmakers, came after an hour-long verbal clash between Theodore J. Boutrous Jr., counsel for Bragg, and House general counsel Matthew Berry in the Southern District Court of New York.

In her order, Vyskocil ruled in favor of the congressional lawmakers, affirming their stance that the subpoena they issued on Pomerantz serves legitimate legislative purposes and is thus protected from lawsuits by the speech and debate clause of the U.S. Constitution. That clause protects federal legislators from lawsuits for actions that serve a valid legislative purpose.

“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,” the judge wrote in her ruling. “Mr. Pomerantz must appear for the congressional deposition.

“No one is above the law.”

Vyskocil agreed with the House Judiciary Committee’s argument that Congress has a legislative interest because House lawmakers introduced legislation that Pomerantz’s testimony could help inform. This includes a bill that, if enacted into law, would bar the use of federal funds to investigate a sitting or former president (the Accountability for Lawless Violence In our Neighborhoods, or ALVIN, Act) and another that would allow Congress to remove an action or prosecution against a former president (H.R. 2553).

Vyskocil also said Congress has the interest and authority to examine whether “politically motivated” prosecutions of a former president would interfere with the duties of a sitting president, as fear of post hoc prosecution might inappropriately influence a sitting president’s decision-making on policy.

The judge further noted that because Pomerantz revealed many details of his investigation of Trump in his book, “People Vs. Donald Trump,” the publishing of that book—and Pomerantz’s high-profile media appearances on this matter—effectively waived his privileges from speaking to the information contained in the book about his investigation of Trump.

Michael Scotto, who worked for 23 years as a prosecutor in the Manhattan DA’s office, told The Epoch Times in an email on April 20 that Bragg’s lawsuit is still “pretty much dead,” even considering the appeals court’s order extending the subpoena deadline. He agreed with Vyskocil’s assessment that Congress has legitimate legislative interests in inquiring about the prosecution of a former president and that Bragg’s separation of powers claims wouldn’t override those interests.

Another consideration, according to Scotto, is that Pomerantz could invoke various privileges at the House hearing—which can be litigated if Congress finds that his refusal to answer on privilege grounds is baseless—which weakens Bragg’s central claim that Pomerantz’s testimony would cause irreparable harm to his case. Scotto also indicated that Pomerantz’s testimony wouldn’t significantly interfere with Bragg’s criminal case because Pomerantz didn’t work on that case and isn’t currently working for Bragg.

“If there was never a book, we wouldn’t be here,” Scotto said.