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Manhattan DA Alvin Bragg Sues Jim Jordan For Being A Dick. A Lawsplainer!
Jim Jordan started shit, and now there will be shit.
House Republicans were never known for finesse, but their hamfisted handling of the recent Trump indictment by New York prosecutors is a new low. For weeks now, Judiciary Committee Chair Rep. Jim Jordan and heads of Oversight and Administration Reps. James Comer and Bryan Steil have harassed Manhattan DA Alvin Bragg's office with demands that it turn over all its internal documents and testify about the Trump prosecution. And they haven't been subtle about it, with Reps. Elise Stefanik and Marjorie Taylor Greene, among others, confirming that they are coordinating Congress's response to Bragg with Trump himself.
But yesterday, Manhattan DA Bragg punched back, filing a complaint in the Southern District of New York seeking judicial relief from House Republicans' efforts to intimidate his office.
It's axiomatic that the US Congress has zero oversight authority over local law enforcement officials. That's how federalism goes , and it's why conservatives are always howling about "local control," although Rolling Stone reports that if Trump gets reelected, he plans to launch a civil rights investigation of Bragg on the theory that he's racist against white people. Nevertheless, Republicans are in lockstep, vowing to punish Bragg for daring to hold Donald Trump accountable for ... allegedly ... committing crimes in the state of New York.
“Alvin Bragg is attempting to interfere in our democratic process by invoking federal law to bring politicized charges against President Trump, admittedly using federal funds, while at the same time arguing that the peoples’ representatives in Congress lack jurisdiction to…”
— Kevin McCarthy (@Kevin McCarthy) 1680642043
Jordan and the dipshits' rationale for their oversight authority has shifted. At the outset, Jordan mumbled vaguely about needing to legislate the Secret Service's interaction with local police and/or the possibility of proposing a (laughably unconstitutional) law to allow former presidents to transfer state prosecutions to federal court. But after the DA disclosed that his predecessor used approximately $5,000 of federal funds in 2021 to investigate the Trump Organization, Jordan pivoted to insisting that this gives Congress the right to examine the inner workings of the office. This is also ridiculous, since virtually every local police department receives some federal funding, and Jordan's logic would empower the federal government to conduct not just the civil rights investigation of Bragg that Trump's got that boner for, but to micromanage every local law enforcement agency.
Meanwhile Jordan stepped up the hackery by announcing that he'll be holding a "field hearing" on Monday in New York with the "victims" of Bragg's “pro-crime, anti-victim policies.” Which is merely stupid , unlike issuing a subpoena for former Manhattan prosecutor Mark Pomerantz to testify on April 20, which is a major escalation.
In February of 2021, Pomerantz was sworn in as a special assistant district attorney to investigate Trump. A year later, he resigned in rage after Bragg refused to take the property fraud case to the grand jury, although those charges later formed the basis of the New York Attorney General's civil indictment of the Trump Organization. Pomerantz then took the unorthodox (read: arguably unethical) step of writing a book entitled People v. Donald Trump, over the objections of the District Attorney's Office. Jordan has now cited this book as waiving privilege, as well as proving that the Trump investigation was tainted by bias. He seems untroubled by the fact that Bragg actually killed the part of the investigation Pomerantz worked on, writing in his subpoena letter that "Your book also contributed to the 'political pressure' on District Attorney Bragg to bring charges against former President Trump."
Yesterday, Bragg responded by suing Jordan and Pomerantz in federal court, accusing the congressman of mounting "an unprecedented brazen and unconstitutional attack." Don't read this as Bragg suing Pomerantz. The lawyer has already told Jordan to get bent — naming him as a defendant gives Pomerantz additional legal cover not to testify next week.
"Chairman Jordan’s demands, including his subpoena to Mr. Pomerantz, seek highly sensitive and confidential local prosecutorial information that belongs to the Office of the District Attorney and the People of New York," he writes. "Basic principles of federalism and common sense, as well as binding Supreme Court precedent, forbid Congress from demanding it."
In support of this argument, Bragg cites New York's grand jury secrecy laws, as well as attorney-client and work product privileges. On a federal level, he points to the the Tenth Amendment, which reserves to the states any power not specifically granted to the federal government in the Constitution, as well as multiple Supreme Court precedents affirming that the federal government cannot direct local law enforcement to do anything other than notviolate federal laws. He also cites Trump v. Mazars , the Supreme Court holding that resulted from Trump's longstanding challenge to the congressional subpoena for the then-president's financial information. In it, the Court set out a four-part test for evaluating legislative subpoenas which impact the president, but Republicans have widely treated this test as applying to all congressional subpoenas. And, indeed, it's rational to assume that the test applies to legislative demands of state prosecutors, who are, after all, representatives of a "separate sovereign."
Under the Mazars test, courts should determine: (1) if other sources can reasonably provide Congress the same information; (2) whether the subpoena is no broader than is reasonably necessary to support the legislative objective; (3) whether the subpoena would advance a valid legislative purpose; and (4) whether the subpoena burdens the executive entity and may be a result of partisan politics.
Clearly, this subpoena for details about just one case cannot possibly pass any prong of the test. Nevertheless, Judge Mary Vyskocil, a Trump appointee assigned to the case, refused to issue a temporary restraining order yesterday as requested, instead scheduling a hearing on the motion for preliminary injunction for April 19.
Now, there are Trump judges, and there are Trump judges . Vyskocil was originally placed on the bankruptcy court in 2016 by Barack Obama, and her 2019 nomination was unanimously approved by the Senate Judiciary Committee. She is not Judge Aileen Cannon. Moreover, a TRO granted before the defendant has even been served notice of the complaint is a drastic remedy reserved only for cases where the harm to be prevented is both imminent and irreparable. Here, Pomerantz has already said he's not showing up to testify on the 20th, and he's clearly not going to be prosecuted by the Justice Department for blowing off Congress, so waiting a week is unlikely to matter.
All of which is a long way of saying that we have no idea what's going to happen with this case. Courts are loath to intervene with congressional authority, due to separation of powers issues. But considering how long Trump was able to delay compliance through litigation, there's at least a decent chance Bragg can drag this out to where the subpoena disappears because Democrats have taken back the House and tossed it in the trash. In any event, the DA will have punched back and made it difficult for Jordan to issue any more subpoenas of future witnesses.
And that's a win. We take those .
[ Bragg v. Jordan , docket via Court Listener]
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