New York (CNN) A federal judge on Wednesday denied a request by Manhattan District Attorney Alvin Bragg’s office for a temporary restraining order to stop the House Judiciary Committee’s subpoena by former prosecutor Mark Pomerantz.
District Judge Mary Kay Vyskocil said Pomerantz must appear for a deposition as the House panel investigates Bragg’s recent accusations against former President Donald Trump.
“The subpoena was issued with a ‘valid legislative purpose’ related to the ‘broad’ and ‘necessary’ power of congress to ‘conduct investigations.’ It is not the role of the federal judiciary to dictate what legislation Congress may consider or how it should conduct deliberations in that connection. Mr. Pomerantz should appear in congressional deposition. in the sun.
Bragg’s office has said it will appeal, though Vyskocil on Wednesday night denied Bragg’s request to stay his ruling while the appeals process continues.
Pomerantz is scheduled to testify before the committee at 10 am on Thursday. He could not immediately be reached for comment.
In his ruling, Vyskocil said he “does not endorse” the agenda of Bragg or the House Judiciary Committee and its chairman, Republican Rep. Jim Jordan.
“In our federalist system, elected state and federal actors sometimes engage in political dogfights. Bragg complained of political interference in the local DANY (District attorney of New York) case, but Bragg did not act outside in the political arena. Bragg is believed to be acting in good faith. As such, he is an elected New York County prosecutor with constituents, some of whom want to see Bragg use the force of the law against the former President and is a current candidate for the Republican presidential nomination,” Vyskocil wrote.
“Jordan, instead, began a political response to what he and some of his constituents see as a blatant abuse of power and bare political prosecution, financed (in part) of federal money, which has the potential to interfere with the exercise of presidential duties and the upcoming federal elections,” the judge added.
Vyskocil reinforced his point in court that it was not his place to consider the potential motivations of either side.
“The Court was largely unmoved by Bragg’s alleged concern with the possibility of ‘injecting[ing] partisan passions’ into a forum where they do not belong,” said Vyskocil. “By taking this action, Bragg is engaging in precisely the kind of political theater he claims to fear.”
Pomerantz’s book is one reason
In his ruling, Vyskocil ruled that the district attorney waived the privilege of any information in Pomerantz’s book because Bragg’s office did not take any legal action before or after the publication of the “Inside Account. “
“While Bragg maintains that Pomerantz’s improper disclosure did not waive DANY’s privilege, such a claim is belied by DANY’s inaction in response to Pomerantz’s known plan to publish a book about DANY’s investigation into President Trump. , protection waived by DANY. Bragg admitted he knew Pomerantz’s intention to publish the book before it was published,” the judge wrote.
Vyskocil also said Pomerantz, who is a named defendant in the suit, ultimately got himself into a tight situation that made national headlines.
“The Court said that Pomerantz was in this situation because he decided to inject himself into the public debate by writing a book that he described as ‘appropriate and in the public interest,’ ” he added.
During the hearing, a lawyer from Bragg’s office argued — unsuccessfully — that Pomerantz ignored warnings from the DA before publishing the book, so the district attorney’s office shouldn’t be punished.
“No, I think there are things out there that should not have been published and that expose Mr. Pomerantz to criminal liability under the city charter,” said attorney Leslie Dubeck. “He did not waive our privileges and trusts because it was an unauthorized disclosure.”
Arguing about “valid legislative intent”
Vyskocil acknowledged the stakes of the case during a hearing with attorneys from Bragg’s office and the House Judiciary Committee on Wednesday.
“There’s politics going on on both sides, let’s be honest about that,” he said.
But the judge, who was appointed to the bench by Trump and confirmed by the Senate in 2019, said he viewed his role narrowly in determining whether there was a valid legislative purpose for the Judiciary Committee’s subpoena on Pomerantz.
“I’m talking about the subpoena. That’s what’s in front of me, it’s not all the political rhetoric flying around that’s all color, it’s all theater but it’s not what’s in front of me,” the judge said.
In his decision, Vyskocil said the committee and Jordan did indeed recognize some valid legislative purposes underlying the subpoena.
“There is no doubt that Congress can authorize investigations into the use of federal funds,” Vyskocil wrote, noting that Bragg’s attorney’s office agreed that federal forfeiture funds were used in the investigation. of Trump.
The judge also said that the committee’s potential to legislate from their inquiry is a valid legislative purpose.
“The Court cannot, and indeed will not, obstruct congressional investigation into hypothetical future legislation based on Bragg’s assumption that such legislation would not pass constitutional muster,” the judge wrote.
During the hearing, attorneys in Bragg’s office agreed that the use of federal funds was a valid legislative purpose but argued that $5,000 in federal funds were used in the Trump Organization tax fraud case that ended in a conviction in December, not the accusation in the first place. president himself.
The lawyer also described to the Judiciary Committee during the hearing what the deposition in Washington, DC, for the former prosecutor will look like.
“Mr. Pomerantz is free to assert privilege if he appears tomorrow about particular questions, then the committee can ask questions to get the basis of the privilege and they can judge them on a question of question,” the committee’s lawyer. said.
Committee Chairman Jordan will ultimately decide whether to allow Pomerantz to assert his privilege, the lawyer acknowledged.
The case of Bragg v. Jordan
Bragg, a Democrat, sued Jordan last week to block a subpoena from a former prosecutor, saying lawmakers are engaged in a “transparent campaign to intimidate and attack” the DA’s office.
Bragg is asking a judge for a temporary restraining order or preliminary injunction to block this subpoena and any future subpoenas to him or other current or former prosecutors.
The lawsuit follows weeks of heated exchanges between Jordan and Bragg that preceded and followed Trump’s indictment on 34 felony counts of falsifying business records allegedly made to cover up a hush-hush paying money to adult film actress Stormy Daniels to prevent her from going public. about an alleged affair a decade ago. Trump has denied the affair and pleaded not guilty to the charges.
The battle between federal and state power began in March when Jordan asked Bragg’s office for documents and communications after news organizations reported that Bragg’s office was moving closer to seeking to impeach Trump. Jordan called it an “unprecedented abuse of prosecutorial authority.” Bragg’s office accused a Trump lawyer of working behind the scenes to solicit help from allies in Congress and called Jordan’s questioning of the ongoing criminal investigation unconstitutional and “unprecedented.” previous investigation by a local prosecution.”
Bragg’s lawsuit describes Jordan’s efforts as “a direct threat to federalism and the sovereign interests of the State of New York.”
Lawyers for Jordan and the committee say they are immune from civil suit under the Speech and Debate clause of the US Constitution that protects lawmakers from being sued for actions stemming from their legislative actions. They also argued that the subpoena was valid because they were seeking information to potentially enact laws that would protect a president from politically motivated state and local prosecutions and allow them to move criminal actions to the courts. in federal.
In a proposed response filed with the court, Bragg argued that constitutional immunity presumes that the actions are part of legitimate legislative activity, which he said the subpoena is not.
“Speech or Debate immunity is not a license for Congress to ignore the separation of powers that the clause seeks to ensure,” he wrote.
Pomerantz joined Bragg in asking the judge to block the subpoena for his testimony, saying he had nothing to do with the decision to seek impeachment against Trump since he resigned more than a year before being reinstated. charge.
Vyskocil in the first case related to Trump
Before Vyskocil was confirmed as a US district court judge, he was appointed as a federal bankruptcy judge in 2016 by the Judicial Council of the United States Court of Appeals for the Second Circuit. Prior to that, Vyskocil was a litigator working primarily on insurance cases in a 33-year career at the New York law firm Simpson Thacher & Bartlett. He attended the Dominican College of Blauvelt and received his law degree from St. John’s University.
The judge made a landmark decision in September 2020 when he dismissed a defamation lawsuit filed by former Playboy model Karen McDougal against Fox News who claimed she was insulted by host Tucker Carlson when she suggested she blackmailed Trump when she got a $150,000 payment from American Media, the publisher of the National Enquirer, for her life story, which included allegations of a long affair with Trump . AMI never published an article and said McDougal was paid to write health and fitness columns.
The judge ruled, “The context in which the incriminating statements were made here makes it abundantly clear that Mr. Carlson did not accuse Ms. McDougal of actually committing a crime. As a result, his statements are not actionable.”
“But there is no doubt that Mr. Carlson acted as hyperbole to promote debate on a matter of public concern,” the judge wrote.
Prosecutors did not charge Trump with crimes related to the AMI buyout deal and buried McDougal’s story, but they included it in a statement of facts accompanying the indictment as part of a “catch and kill scheme” to suppress negative stories before the 2016 presidential election.
This story has been updated with additional details.
