Manhattan District Attorney Alvin Bragg has kept his cool as Republicans have ramped up their pressure campaign against him. For weeks now, his office has been engaged in a back-and-forth with the House Judiciary Committee over the committee’s demand for documents and testimony related to his prosecution of former President Donald Trump. But now it’s clear that Bragg is done playing nice, and he is asking the courts to end this farce.
Even before a grand jury voted to indict Trump, Republicans warned Bragg that he’d regret what they deemed a “politically motivated prosecutorial decision.” Rep. Jim Jordan, R-Ohio, is leading that charge from his perch atop the Judiciary Committee. It’s clear that Jordan, one of Trump’s top allies in Congress, and other members of the House GOP are trying to influence the outcome of the trial — or at the very least ensure Bragg will pay a political cost for it.
The very public nature of the “investigation” into the Manhattan DA’s investigation, though, provided ample fodder for a federal lawsuit Bragg filed in the Southern District of New York on Tuesday. In it, his attorneys called out the shifting excuses Jordan has offered when he has demanded secret details about an ongoing criminal investigation, as well as the way Trump’s lawyers have urged the House GOP to intercede. Bragg’s attorneys asked for the courts to quash a pair of subpoenas that have been sent to current and former members of his office.
First, a quick irony: The main bit of case law Bragg’s lawsuit cites throughout the filing is Trump v. Mazars USA, the Supreme Court decision affirming that while Congress has the right to issue subpoenas in its investigations, it doesn’t have an unlimited right. The decision accordingly included a four-point test for whether a subpoena actually fit within Congress’s role under the Constitution — and Jordan’s request fails all four points, Bragg’s suit asserts. In effect, it’s using a ruling related to Congress’ investigation of Trump’s finances to argue against Congress’ investigation into his investigation of Trump’s finances.
The principal part of the test that Jordan’s fishing expedition fails, according to Bragg’s legal team, is the need for a legislative purpose to justify the investigation. Over the course of several letters from Jordan and two other House committee chairs to the DA’s office, the exact reasoning has jumped from needing to assess how federal funding is being spent to potentially blocking former presidents from being prosecuted under state or local law. Jordan is still clinging to the “federal funding” canard, even after Bragg’s office explained repeatedly that none of the “expenses incurred relating to this matter [including the investigation and prosecution of Mr. Trump] have been paid from funds that the Office received through federal grant programs.”
The filing also said the committee’s subpoenas delve into a state criminal case in a way that doesn’t appear anywhere in Article I of the Constitution, clearly overstepping its bounds to negate the grand jury’s decision. “Chairman Jordan and the Committee have, in essence, appointed Congress as a super grand jury that can flex its subpoena power to second guess the judgment of New York citizens and interfere with the state criminal justice process,” Bragg’s counsel wrote.
Jordan and his cohort have done a great job of offering plenty of evidence to bolster Bragg’s claims. The two subpoenas have been delivered to Mark Pomerantz, a former prosecutor in the DA’s office, and Matthew Colangelo, who is senior counsel under Bragg. Neither seems like someone smart Republicans would want to have testify under oath, especially since Pomerantz has been very clear that he thinks Trump committed “numerous” serious crimes that should have been prosecuted. Best as I can tell, Jordan seems to hope that he can spin any documents and testimony about the Trump investigation into evidence of a conspiracy to cook up an indictment without evidence of a crime.
But in talking (loudly) about their plans on Fox News, Jordan and other GOP members indicated that those subpoenas were the opening salvo in an investigation that would eventually involve a subpoena for Bragg himself. In doing so, they “made clear that the subpoena is designed to punish District Attorney Bragg for his prosecutorial decisions,” the suit reads, referring to House Speaker Kevin McCarthy’s promise to “hold Alvin Bragg and his unprecedented abuse of power to account.”
Bragg has shown that he won’t allow the Republican attempt to frame the charges against Trump as an abuse of power to go unchallenged.
Bragg is asking the court to find that Pomerantz’s subpoena is “invalid, unenforceable, unconstitutional” and beyond Congress’ scope since it lacks a legislative purpose. And even if Jordan and his committee “were able to demonstrate a valid legislative purpose and withstand the Mazars test (they cannot), the subpoena still would not be enforceable because it could allow the Committee to seek secret grand jury material,” the filing continued. Bragg’s lawyers then ask the court to issue a “permanent injunction, preliminary injunction, and temporary restraining order” against enforcing the subpoena against Pomerantz and to do the same for any future subpoena against Bragg or members of his office.
The suit was filed just a day after the Judiciary Committee announced it would be holding a “field hearing” in Manhattan on Monday to highlight Bragg’s supposed “pro-crime, anti-victim policies that have led to an increase in violent crime and a dangerous community for New York City residents.” I spent most of Tuesday ready to go all in on how crime is actually down in Manhattan year over year and how much higher the murder rate per capita is in cities like, say, Columbus, Ohio, whose northwest suburbs Jordan represents. Holding the field hearing was a political stunt that was sure to backfire, I was prepared to argue.
But Bragg illustrated that last point perfectly in his filing, when he noted why the Southern District of New York was the proper place to file his suit: “The Chairman and the Judiciary Committee have also availed themselves of this forum by planning to hold a field hearing in New York City on April 17, 2023 regarding the District Attorney’s prosecutorial policies.”
In filing this suit, Bragg has shown that he won’t allow the Republican attempt to frame the charges against Trump as an abuse of power to go unchallenged. He’s following what has become a tradition in cases related to Trump, where the best place to counter political preening and misinformation is in court filings, where telling the truth matters. If Jordan really thinks his arguments are going to hold up before a federal judge, well, he’s going to have an opportunity to make his case very soon.