The Manhattan District Attorney Sued Jim Jordan. Why? And What Now?

In February 2021, Bragg’s predecessor, Cy Vance, lured Pomerantz out of retirement to help lead an investigation into possible financial misconduct by Trump. In February 2022—less than two months after Bragg’s inauguration, Pomerantz noisily resigned, upset with Bragg’s disinclination to bring charges against Trump at that time. In a letter shared with the New York Times, he denounced Bragg’s decision not to pursue the case that he had built as a “grave failure of justice.” He then wrote a book recounting his experience at the district attorney’s office and, in it, excoriated Bragg for his decision. He wrote that the Trump investigation “turned into the legal equivalent of a plane crash,” and that the cause was “pilot error.” The book recounts in detail the arc of the investigations into Trump and provides a rare window into the internal workings of a prosecutor’s office. In two early chapters, he discusses the investigation into Trump’s handling of hush money payments to adult film actress Stormy Daniels—which he says was known as the “zombie” case against Trump because of its penchant for returning to life after prosecutors had considered and rejected it.

In November 2022, the New York Times reported that Bragg’s office had revived the hush money case. By March 2023, reports suggested that Bragg’s grand jury was on the verge of issuing an indictment. Jordan—joined by House Oversight Chair James Comer (R-Ky.) and House Administration Chair Bryan Steil (R-Wis.)—then wrote Bragg to request (a) all documents and communications between Bragg’s office and federal law enforcement regarding the Trump investigation, (b) all documents and communications to or from Dunne and Pomerantz regarding Trump, and (c) all documents and communications regarding the office’s use of federal funds.

Jordan also sent Pomerantz a letter on March 22, essentially repeating the first two requests and also requesting documents and communications regarding his hiring by the office. On March 27, Pomerantz declined, noting that the district attorney’s office had instructed him not to provide any information or materials in response to the request and that, “at the present time, and in light of the ongoing discussions” between the House Judiciary Committee and the district attorney’s office, he would “act in a manner consistent with the instructions” from his old office. On March 30, the grand jury indicted Trump. 

On April 6, Jordan issued a formal subpoena to Pomerantz—but not to Bragg—which did not include requests for documents, but did demand that Pomerantz appear for a deposition on April 20. Bragg filed suit in federal court five days later seeking an order enjoining any enforcement of the subpoena and enjoining Pomerantz from complying with it. 

What does Congress have the right to investigate? What are the limits? 

Courts afford Congress extremely wide latitude in pursuing investigations. In general, the Supreme Court has said that a congressional subpoena need only be “related to, and in furtherance of, a legitimate task of the Congress.” In other words, the question is whether the subpoena “concern[s] a subject on which legislation could be had.” Congress may not “expose for the sake of exposure,” nor may it issue a subpoena for the purpose of “law enforcement.” 

The first question, in this case, is whether Jordan’s request has anything to do with legislation. In the cover letter accompanying his subpoena to Pomerantz, Jordan cited three “potential legislative reforms that would, if enacted, insulate current and former Presidents” from “politically motivated state and local prosecutions.” First, Congress could consider making it easier for certain defendants (presumably former presidents) to move cases from state court to federal court. Second, Congress could address “the potential for conflict between the federal law-enforcement officials required by federal law to protect a former President and local law-enforcement officials required to enforce an indictment and exercise control of him throughout his presence in the local criminal justice system.” Third, Congress may wish to prohibit or otherwise address the use of federal funds to investigate a current or former president or presidential candidate.

These reasons—especially the first and third—appear to be “subject[s] on which legislation could be had.” Such legislation may not be wise and—in the case of expanding removal powers—may raise constitutional concerns. But it’s hard to say that Congress never could legislate in these areas. Furthermore, it seems that the subpoena to Pomerantz could yield information relevant to such legislative pursuits. Whether it likely would yield information is another question—and not, for the Supreme Court, the right one. As the Court has noted, “The very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.” 

Come on—Jordan didn’t issue this subpoena because he wants to pass legislation.

One could be forgiven for thinking that Jordan just wants to be seen—in the eyes of Trump and his supporters—as standing up for the big guy. From the Ukraine impeachment to Jan. 6 to, well, every other day, Jordan’s consistent and loud opinion has generally been that Trump can do no wrong.

No wonder that, per a New York Times report, a Trump lawyer wrote Jordan in February asking him to investigate what he called an “egregious abuse of power” by a “rogue local district attorney.” Jordan happily obliged, not only launching an investigation, but blaming Bragg for all sorts of (non-Trump) crime. Yesterday, Jordan literally took his show on the road by holding a House Judiciary Committee hearing in New York City to “examine how Manhattan District Attorney Alvin Bragg’s pro-crime, anti-victim policies have led to an increase in violent crime and a dangerous community for New York City residents.”

But in the eyes of the law, this typically does not matter much. The Supreme Court doesn’t look at the actual motive of Congress in articulating a request. And for good reason—Congress always acts with multiple motives. Trying to disentangle the many motives of a committee chair who issues a subpoena would be a time-consuming fool’s errand. The Supreme Court has squarely rejected attempts to invalidate congressional investigations on the basis that Congress’s goal was merely “exposure” rather than legislation. “So long as Congress acts in pursuance of its constitutional power,” the Court wrote, “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

When I represented House committees (then controlled by Democrats) as a special litigation counsel at the House Office of General Counsel, subpoena recipients—most prominently Trump and his ilk—constantly argued that the committees’ “real” goal was to get Trump for political reasons, or to put him on trial for wrongdoing, and that the investigation thus lacked a legitimate legislative purpose. They lost that argument every single time.

Nor does it matter legally that Jordan—defending a subpoena in the service of protecting Trump—defied a subpoena issued to him by the Jan. 6 committee. The committee wanted to talk to Jordan about reports that he had spoken to Trump several times on the day of the attack on the Capitol. Jordan, however, had no interest in putting himself in a position where only perjury could save him from revealing damaging facts about Trump. Karma would dictate that Jordan get a taste of his own medicine. The law, alas, does not work that way. (I cannot say, of course, whether Jordan’s hypocrisy will lead a judge to subconsciously view his filings with a more jaundiced eye.)

So that’s it? Case closed? 

Bragg says this lawsuit is different. He argues that a higher standard should apply because Jordan is targeting a state criminal prosecution. He points to the Supreme Court’s 2020 decision in Trump v. Mazars USA, LLP, in which the Court held that a subpoena directed to a sitting president must meet a higher standard, even where the subpoena does not seek documents relating to his or her presidency. In that case, Trump sued to block a subpoena from the House Oversight Committee to his longtime accounting firm seeking various records. The lower courts ruled in favor of the House, but the Supreme Court crafted a new test and remanded the case back to the lower courts to apply. (I worked on the case after remand; the House prevailed before the district court and court of appeals, and the parties eventually reached a settlement.) 

The four-part Mazars test requires courts to (a) “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers,” (b) “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective,” (c) “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose,” and (d) “assess the burdens imposed on the President by a subpoena.” Bragg wants a version of this test to apply to Jordan’s subpoena. “If the courts must rigorously scrutinize a congressional subpoena that threatens the balance of power between Congress and the executive,” he writes in his brief, “then so too must they rigorously analyze a subpoena that poses a triple threat—to a state executive officer, a state judicial proceeding, and our federal system itself.” Indeed, Bragg claims that this is “the first time in our nation’s history that Congress has used its compulsory process to interfere with an ongoing state criminal case.”

It’s anyone’s guess whether the district court judge—Mary Kay Vyskocil, a Trump nominee—will apply heightened scrutiny to this subpoena, whether via a modified Mazars test or some other way. If she does, the thin evidence of Jordan’s actual intent to use this subpoena to advance legislation would weigh against him.

On the other hand, the judge may skeptically view Bragg’s assertion that the subpoena will “interfere” with the prosecution of Trump. Pomerantz left the district attorney’s office in February 2022, less than two months after Bragg took over and before a grand jury was convened in this case. Pomerantz notes in his book that he participated in discussions—under Vance—about bringing the hush money case, and that he concluded that such a prosecution would incur a “substantial risk” of dismissal. Nevertheless, by the final chapter—written as the case was heating up again, but before the indictment—Pomerantz says he hopes Bragg pursues it despite the risk. Regardless of what Pomerantz thinks of the case—or of Bragg himself—the judge could well conclude that dragging in Pomerantz to testify would not, by itself, constitute interference. A subpoena issued to Bragg himself or to a current member of his staff, however, would be quite different. 

Does Bragg have any other arrows in his quiver?

Bragg further argues that the subpoena impermissibly seeks privileged material that is protected by the attorney-client privilege and by work product protection. Jordan insists that Pomerantz waived these protections by discussing the matter in his book. But Bragg notes that “the privilege belongs to the District Attorney and was not Mr. Pomerantz’s to waive.” Jordan further argues that the attorney-client privilege does not apply to prosecutors, and that if it does, Bragg didn’t do enough to try to protect it from waiver when Pomerantz published his book and did a publicity tour. Finally, Jordan argues that, at the very least, a good chunk of Pomerantz’s testimony would not be privileged, and thus “Pomerantz must appear and invoke any claimed privilege on a question-by-question basis.”

Note that the House defendants appear to concede that these privileges can apply against Congress. As set forth in a footnote in a brief (on which I worked) in support of the Jan. 6 committee’s efforts to obtain Trump ally John Eastman’s emails, Congress has long maintained that such privileges do not apply when a congressional subpoena comes calling:

Congress has consistently taken the view that its investigative committees are not bound by judicial common law privileges such as the attorney-client privilege or the work product doctrine. See generally, Congressional Research Service, Congressional Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative authority is rooted in the separation of powers inherent in the Constitution’s structure. Id. Congress and its committees make decisions regarding such common law privileges by balancing the important institutional, constitutional, and individual interests at stake on a case-by-case basis.

Oddly, however, Chief Justice John Roberts’s majority opinion in Mazars suggested—in a breezy aside—that this was not the case:

[Congressional subpoena] recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.

With respect to common law privileges such as the attorney-client privilege, that sentence is simply not correct. As discussed at length in an article by a former House Oversight staff director, Congress has not taken the position that, as a matter of law, subpoena recipients are entitled to the protections of the attorney-client privilege (although committees may choose for policy or tactical reasons not to seek privileged materials). While strictly dicta in Mazars, as privilege issues weren’t at play in the case, the chief justice’s statement may indicate how the Supreme Court would rule should the issue ever directly present itself. In the Eastman case, the House parties “determined, consistent with their prerogatives, not to submit an argument on this point”—while noting that “[t]his is not, however, intended to indicate, in any way, that Congress or its investigative committees will decline to assert this institutional authority in other proceedings.” Instead, we made only case-specific arguments about whether and to what extent these privileges applied to Eastman’s emails. The decision not to include a similar disclaimer here may indicate the House’s lack of interest in protecting this argument for the future.

Why is Bragg suing Pomerantz in addition to Jordan and the House Judiciary Committee?

Because the Supreme Court has held that the Constitution’s Speech or Debate Clause prevents courts from ordering Congress not to enforce a valid subpoena. The House defendants’ brief argues that adding Pomerantz as a defendant is an impermissible end run around the Speech or Debate Clause in that it runs afoul of Rule 19 of the Federal Rules of Civil Procedure, which provides that “[i]f a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Jordan argues the House defendants must be dismissed from the suit, and that it’s therefore not fair to the House to allow the suit to proceed without it. 

(I will not bore you with further details of that arcane—but not entirely implausible—argument, which appears to have originated last year with a request for briefing on the issue from Judge Timothy Kelly, who was overseeing the Republican National Committee (RNC) v. Pelosi lawsuit, which I worked on). That suit involved a somewhat similar set of facts: The Jan. 6 committee subpoenaed the RNC’s email vendor, and the RNC sued to block compliance. (For extra credit reading, please see the briefs and orders in the RNC case from April 5, 2022, through May 1, 2022, here and search for “Rule 19.”)

The bigger question is why Bragg is suing at all. In a somewhat similar situation, the House Judiciary Committee subpoenaed former Trump White House Counsel Donald McGahn as part of its investigation into Trump’s efforts to obstruct the Mueller investigation. McGahn was instructed by Trump not to cooperate, just as Pomerantz has been instructed by Bragg. But Trump—unlike Bragg—didn’t rush to sue. Rather, he let the House Judiciary Committee sue to try to enforce its subpoena—which for various reasons is an arduous, time-consuming, and legally uncertain task. The House Judiciary lawsuit spent nearly two years bouncing between various courts before the parties reached a settlement pursuant to which McGahn testified on a limited set of topics. (In its final report, the Jan. 6 committee recommended that Congress legislate to make it easier to enforce House subpoenas.)  

Why isn’t Bragg just sitting back and waiting for Jordan to enforce his subpoena? One possibility is that Bragg can’t be sure whether Pomerantz—despite his statement to Jordan that he would follow Bragg’s instructions—will eventually get cold feet about holding out without the blessing of a court. As Pomerantz noted in a declaration filed with the court, he could in theory be prosecuted at some point for defying a subpoena—although such prosecutions are few and far between. The current Department of Justice isn’t likely to act, but if the famously vengeful Trump returns to the White House in 2025, he could direct his attorney general to prosecute Pomerantz. Ordering the Department of Justice to prosecute a specific individual is a gross violation of constitutional norms, and Trump would likely be just the man to do it. McGahn, by contrast, was confident that no Department of Justice, even under Democratic control, would prosecute him in light of President Trump’s invocation of executive privilege in instructing him not to testify.  

What else might happen?

Judges tend not to enjoy ruling on challenges to congressional subpoenas—if there’s a way to find an off-ramp, they will gladly take it. The judge could issue an order limiting the scope of the subpoena to address some of Bragg’s concerns. Alternatively, the judge might temporarily enjoin the subpoena and instruct the parties to negotiate and come back to her in a few weeks. This dispute could wind up being a very big thing, jurisprudentially speaking, or it could end with a whimper. The beauty—if that’s the word—of litigation involving separation of powers and federalism issues is that you never quite know which it will be until it’s over.