Manhattan Strikes Back

Photos: TASOS Katopodis / Getty Images

The war of words between GOP politicians in Washington and the District Attorney’s office in Manhattan escalated into the courtroom on Tuesday when DA Alvin Bragg filed a federal lawsuit in the Southern District of New York against the House Judiciary Committee and its chairman, Rep. Jim Jordan (R-OH). He also named, for formal purposes, Mark Pomerantz, a former prosecutor in his office, whom Bragg wishes to protect from having to testify. 

Bragg is seeking what’s called “declaratory relief” from the court to stop Jordan from interfering in his active criminal prosecution of ex-president Donald Trump, who is charged with 34 counts of falsifying business records in the first degree. Rep. Jordan recently upped the stakes by issuing a subpoena to Pomerantz seeking information related to grand jury investigations of Trump. Pomerantz responded by telling Jordan to pound sand, but Bragg wants to make it official, asking that this subpoena and any further subpoenas be quashed by the court while the criminal case is pending.

Earlier this week, I wrote about efforts by House Republicans to use their congressional “oversight” powers to interfere with an active state-level criminal matter. These actions are a prime example of how Republican extremism is undermining and threatening our democratic system. Seeing Bragg take off the gloves and go on the offensive against Jordan’s overreach is a heartening sign that key civic leaders will defend core principles of federalism and the separation of powers.

But who has the stronger legal argument here? From where I sit, it’s Bragg by a mile.

Subpoenas, shmapoenas. Who cares?

Congressional subpoenas these days are often met with a collective eye roll. In recent memory, many Republicans in Congress and members of the former administration simply ignored subpoenas to testify before the January 6 Commission. It is the height of irony that Rep. Jordan has now issued a congressional subpoena to a witness and demanded he appear, when he himself refused to do so when similarly summoned. 

It would be understandable if the public’s major takeaway was that congressional subpoenas simply have no teeth and cannot be enforced. But that’s not entirely true. When former senior strategist for Trump, Steve Bannon, willfully ignored his congressional subpoena, he was sentenced to four months in federal prison after being found guilty of contempt of Congress by a Washington, D.C. jury. (That sentence is now pending on appeal.) Similarly, former Trump aide Peter Navarro was indicted for contempt of Congress and faces a trial once his “executive privilege” claim is sorted out.

More germane to Jordan and Bragg, Donald Trump ultimately lost his case before the Supreme Court after seeking for years to prevent the production of his private tax records, which congressional Democrats had subpoenaed. And in another twist, that case, Trump v. Mazars, winds up figuring importantly in Bragg’s lawsuit. That’s because the High Court actually addressed a very similar question of how to balance the interests of Congress in pursuing its legislative purpose with the need for the executive branch to be able to function without harassment. 

Jordan’s actions don’t pass the Supreme Court’s Mazars test

In his 50-page complaint, DA Bragg begins by walking through some of the low marks of Jordan and his Committee’s behavior, which Bragg labels a “campaign of intimidation, retaliation, and obstruction.” He then announces his primary argument with clarity and force:

Members of Congress are not free to invade New York’s sovereign authority for their or Mr. Trump’s political aims. Congress has no authority to “conduct oversight” into District Attorney Bragg’s exercise of his duties under New York law in a single case involving a single defendant. Nor can Congress force a former prosecutor to make extrajudicial statements during a criminal prosecution about that prosecution or related criminal investigations….

Bragg then uses the Supreme Court’s recent Mazars test to bring this point home. As summarized nicely by the folks at Lawfare blog, Mazars sets forth a four-part “balancing test” for evaluating the validity of a congressional subpoena on a member of the Executive:

First, courts should consider whether “other sources could reasonably provide Congress the information it needs in light of its particular legislative objective.” 

Second, subpoenas may be “no broader than reasonably necessary to support Congress’s legislative objective.” 

Third, “Congress must adequately identif[y] its aims and explai[n] why the President’s information will advance its consideration of the possible legislation.” 

Finally, courts “should be careful to assess the burdens imposed” on the Executive.

Bragg argues that Jordan’s subpoena utterly fails this test for the following reasons:

• There is no legitimate legislative purpose behind Jordan’s interference because Congress has no power under the Constitution to oversee, let alone disrupt, ongoing state law criminal matters;

• The subpoena is vastly broader than necessary to support any alleged legislative purpose;

• Jordan has evoked a “shifting array” of supposed legislative purposes that do not warrant the “significant step” of seeking information from the District Attorney; and

• The subpoena is highly burdensome because the criminal case is active and ongoing.

Jordan is going to have to come back and answer, in federal court, how his subpoena to Pomerantz, as well as other subpoenas he and others have threatened to issue, pass this test. And I’m already very skeptical.

Of particular difficulty will be the fundamental question of federalism. Normally, Washington, D.C. has no say over the sovereign interests of New York State in prosecuting a crime committed within its borders. Indeed, as Bragg notes, quoting Charles Tiefer, former Acting General Counsel to the U.S. House of Representatives, 

[T]here hasn’t been a subpoena enforcement against a state attorney general in 200 years . . . and there’s an excellent reason. State Attorneys General have their own state sovereign authority. They are frequently elected. They have their own base, their own electoral base, their own mission, and their mission is to pursue things that Congress can’t.

We will need to wait to see how Jordan responds to this fundamental problem with his Committee’s actions. But if his prior behavior as head of the Judiciary Committee is any guide, Jordan is all bluster and can’t follow through with the goods.

Bragg calls the GOP and Trump out their threats

Nor is Bragg making it easy for Jordan. After arguing that Jordan and his committee have no valid legislative purpose behind their interference with his prosecution, Bragg then walks meticulously through the real reason Jordan and his GOP allies seek to interfere: to protect ex-president Trump. 

He cites Trump’s multiple threatening messages on Truth Social, including physical threats; an image of Trump holding a baseball bat while positioned next to Bragg; the harassment and threats MAGA extremists have made upon him and his office, now numbering in the thousands; and the dangerous rhetoric of Trump’s allies. Bragg condemns Don Trump, Jr. and Rep. Marjorie Taylor Greene for posting pictures and articles about the judge’s daughter to create an atmosphere of threats and terror around the case along with the various dehumanizing invective Trump has hurled at Bragg personally. It’s now all part of the record in a federal court case.

Bragg has led the way on how to respond 

The aggressive counterpunch delivered by Bragg has set a standard for how to deal with GOP congressional interlopers. This will be especially important when further indictments drop. As I observed in an earlier piece, the Manhattan indictments are only the first of many more likely to come—rather like a warm-up band for the main acts. In typical form, Rep. Jordan and others have responded to the Manhattan indictment viciously but without strong legal basis, and this could set them up poorly going forward. 

Their antics might, for example, produce negative precedent in federal court which could limit their ability to run interference plays when far more serious indictments issue. These include likely charges in Fulton County, Georgia, for election interference and in Washington, D.C. for obstruction; mishandling of sensitive and classified information; conspiracy to obstruct the electoral count; and conspiracy to defraud the United States. Were an appellate court or even the Supreme Court to side with Bragg here, which seems likely given the facts and the Mazars precedent, this could seriously limit Jordan and his gang’s legal options to try and hamstring Fani Willis in Georgia or Jack Smith in D.C.

By then, too, the public may also have grown weary of the GOP’s constant threats and obvious political posturing, all in the quest to save their leader from facing any accountability. It’s one thing to claim that a single prosecutor in Manhattan doesn’t have the right to take down a former president on false business records charges. It’s quite another to argue that Trump is also somehow immune from suit in Georgia, even while his cronies face charges and prison terms there. And it is still an even higher bar to claim Trump is somehow beyond the reach of federal laws enforced by a Special Counsel and two separate federal grand juries.

By filing his suit, Bragg has drawn first blood. If Jordan and his allies can’t successfully make legal hay in the spring on this smaller matter, they don’t stand much of a chance when the political grasses grow far higher later this year.