Alvin Bragg Bails Out Of Suit To Block Former Prosecutor Testifying To House Judiciary Committee

Manhattan District Attorney Alvin Bragg (Barry Williams/New York Daily News/Tribune News Service via Getty Images)

This weekend, Manhattan District Attorney Alvin Bragg and House Judiciary Chair Jim Jordan agreed on parameters for former prosecutor Mark Pomerantz to comply with a congressional subpoena. Having agreed that Bragg's deputy Leslie Dubeck could attend the closed door deposition along with Pomerantz's personal attorneys, the parties jointly dismissed their Second Circuit appeal of Judge Mary K. Vyskocil's order for Pomerantz to testify.

Jordan and his buddies James Comer and Bryan Steil, chairs of the Oversight and Administration Committees, spent the weeks leading up to Bragg's indictment of former president Donald Trump demanding that the DA come in and testify about his prosecutorial decisions. In a series of harassing letters, Jordan cited the measly $5,000 the DA's office used to investigate Trump as justifying legislative investigation of the ongoing case. Perhaps Congress would pass a prosecutorial removal statute for former presidents, he suggested coyly, while brushing aside any federalism or Tenth Amendment objections to Congress acting like a roving inspector general.

Pomerantz, an experienced white collar lawyer who joined the DA's office on a special assignment to investigate Trump, resigned loudly in 2022 after Bragg failed to indict on the tax and business records charges that form the basis of Attorney General Letitia James's civil case against Trump and his company. He then went on to write a book in which he trashed Bragg, praised his own instincts, and rubbished the hush money payments which form the basis of the current indictment. Bragg's office never waived privilege, and Pomerantz refused to clear the manuscript with the DA's office. This did not endear Pomerantz to Bragg, but worse, it put him in the difficult position of having to assert privilege to block disclosure of information already in the public domain when House Republicans came knocking.

Bragg sued to block the subpoena, drawing Judge Mary K. Vyskocil, a Trump appointee, in the Southern District of New York. In an April 18 order, Vyskocil seemed tremendously hostile to Bragg's federalism arguments, while taking Jordan's claims of legitimate legislative purpose at face value. She quoted liberally from Pomerantz's book and suggested that Bragg had implicitly waived privilege as to the contents by failing to seek a prior restraint on publication or to have it pulped afterwards. She ordered Pomerantz to testify and make his assertions of privilege if and when the legislators asked a question which touched upon matters he hadn't already placed in the public domain.

Bragg appealed to the Second Circuit, but Judge Vyskocil refused to stay her order pending appeal. And she went so far as to reserve jurisdiction for herself as to any future disputes between Bragg and Jordan.

This Court will retain jurisdiction over this dispute and any ancillary claims arising out of the inquiry by the Committee relating to the use of federal funds in a manner that may influence the 2024 presidential election. In other words, Bragg may not file successive proceedings under a different index number if and when the Committee in fact issues another subpoena that he finds objectionable or if there are issues with respect to the Pomerantz deposition.

The Second Circuit stayed the order administratively, ordering briefings over the weekend. But instead Jordan and Bragg worked out a deal for Pomerantz to testify on May 12 and mutually agreed to dismiss the appeal. And this morning Bragg filed a notice of dismissal in the trial court, which would appear to divest Judge Vyskocil of jurisdiction.

So ... if and when Jordan comes back and tries to subpoena someone else from the District Attorney's Office, will they wind up back in front of a judge who expressed marked hostility to Bragg's federalism claims? Or will they all agree to hold their fire in court and concentrate on trashing each other on social media?

Bragg caved. @Jim_Jordan won.

-- House Judiciary GOP (@JudiciaryGOP) April 22, 2023

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.