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Judge sides with House GOP in court fight with Manhattan DA Bragg over Trump probe

A Trump-nominated judge denied Alvin Bragg's effort to block the House Judiciary Committee's subpoena of one of his former investigators.
Alvin Bragg speaks during a news conference at police headquarters  in New York
Manhattan District Attorney Alvin Bragg at a news conference Tuesday at New York police headquarters.Mary Altaffer / AP

A former prosecutor for the Manhattan district attorney's office must appear for a deposition before the House Judiciary Committee, despite the DA's contention that House Republicans are trying to interfere with his investigation of former President Donald Trump.

In a ruling Wednesday afternoon, U.S. District Judge Mary Kay Vyskocil sided with the arguments presented by the committee, led by Rep. Jim Jordan, R-Ohio, that its subpoena of former prosecutor Mark Pomerantz was lawful and proper.

"The subpoena was issued with a 'valid legislative purpose' in connection with the 'broad' and 'indispensable' congressional power to 'conduct investigations," wrote Vyskocil, a Trump nominee. "Mr. Pomerantz must appear for the congressional deposition. No one is above the law."

Bragg sued last week in federal court in Manhattan alleging that the committee and Jordan are improperly trying to interfere with his prosecution of Trump for political reasons.

Jordan maintained it’s Bragg’s investigation that is politically motivated. His committee subpoenaed Pomerantz, who’d been involved with the DA’s investigation of Trump, to testify Thursday.

Vyskocil mocked Bragg's 50-page suit in her ruling, saying, "The first 35 pages of the Complaint have little to do with the subpoena at issue and are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump."

She also took aim at Bragg's contention that the committee was trying to undermine the Trump investigation.

"There is no question that New York, a sovereign state in our federal system, has authority to enforce its criminal laws through its local prosecutors," she wrote. "However, the Court rejects the premise that the Committee’s investigation will interfere with DANY’s ongoing prosecution. The subpoena of Pomerantz, who was a private citizen and public commentator at the time Bragg indicted Trump, will not prevent or impede the criminal prosecution that is proceeding in New York state court."

Vyskocil added she didn’t care about the political finger-pointing from both sides.

"The Court does not endorse either side’s agenda. 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," she wrote in her 25-page ruling.

There was no immediate comment from the DA's office. At a hearing in the case earlier Wednesday, Bragg’s attorneys indicated that they would ask the 2nd U.S. Circuit Court of Appeals for a stay if Vyskocil didn’t rule in their favor.

The appeal was filed early Wednesday evening. Pomerantz appealed, as well.

Vyskocil on Wednesday night denied Bragg's request to pause her order while he appeals, saying he is "not likely to succeed on the merits of any appeal.” That means the deposition is likely to take place Thursday morning as scheduled, unless the appeals court steps in before then.

A spokesman for Jordan, Russell Dye, said Vyskocil's earlier “decision shows that Congress has the ability to conduct oversight and issue subpoenas to people like Mark Pomerantz, and we look forward to his deposition before the Judiciary Committee.”

Jordan had argued that Pomerantz’s previous role in the DA’s office leading a probe into Trump’s finances makes him “uniquely situated to provide information that is relevant and necessary” to his committee’s investigation. He has also noted that Pomerantz has already divulged information about the investigation in a book that was published in February, as well as in media interviews.

Bragg's suit sought a court order blocking the subpoena for Pomerantz, calling it an “unprecedentedly brazen and unconstitutional attack” on an ongoing investigation.

“Congress has no power to supervise state criminal prosecutions,” Bragg’s lawyer, Theodore Boutrous, wrote in the lawsuit.

Jordan, who snubbed a subpoena from the Democratically led House Jan. 6 committee last year, argued he's not trying to interfere with the investigation. He contended that his committee needs the information from Pomerantz, in part, for a "legislative purpose" — a bill that would allow state criminal cases against former presidents to be moved to federal court.

Bragg pointed to the proposed legislation as proof that the committee is trying to interfere, because it "would apply to any cases pending at the time of enactment."

"The record confirms the purpose of the subpoena is to advance a plan to intimidate, harass, retaliate, and hold 'accountable' District Attorney Bragg for enforcing New York’s criminal law against a then-New Yorker, Mr. Trump," he argued.

"The Congressional Defendants want the District Attorney — an official endowed with the sovereign authority of the State of New York by its laws and its people — to bend the knee and to 'explain to us exactly what he is doing.'”

Bragg, who had instructed Pomerantz not to respond to the subpoena, also sued Pomerantz to block his testimony, arguing that the interests and privileges of the DA's office must be protected.

Pomerantz filed a declaration in court Monday asking the judge to block the subpoena because he's in an "impossible position."

“[I]f I refuse to provide information to the Committee, I risk being held in contempt of Congress and referred to the Department of Justice for possible criminal prosecution. If, on the other hand, I defy the District Attorney’s instructions and answer questions, I face possible legal or ethical consequences, including criminal prosecution,” his filing said.

Pomerantz, who resigned from Bragg's office in February 2022, also stressed that he was “not involved in the decision to seek Donald Trump’s indictment on the charges filed against him.”

“I have had no conversations about prosecuting Mr. Trump with the District Attorney or any member of the prosecution team following my resignation,” Pomerantz said.

Jordan held a committee field hearing in Manhattan on Monday to attack Bragg. It featured victims of violent crime to highlight Republicans' argument that Bragg has dropped the ball on keeping the public safe to focus on prosecuting Trump. Bragg’s office has pointed to new data showing crime has significantly fallen in Manhattan during his tenure.

The DA's office had been investigating Trump for years, since before Bragg took office.

Bragg charged Trump this month with 34 felony counts of falsifying business records related to his role in hush money payments toward the end of his 2016 presidential campaign. Trump, who has pleaded not guilty, has called the investigation a partisan "witch hunt."

Vyskocil was nominated by Trump in 2019 and easily confirmed in the Senate by a 91-3 vote.