Federal judge denies Manhattan DA’s request to block House GOP subpoena of ex-prosecutor

By Lauren del Valle and Kara Scannell, CNN

A federal judge on Wednesday denied a request by Manhattan District Attorney Alvin Bragg’s office for a temporary restraining order to stop a House Judiciary Committee subpoena of former prosecutor Mark Pomerantz.

District Judge Mary Kay Vyskocil said Pomerantz must appear for a deposition as the House panel investigates Bragg’s recent indictment of former President Donald Trump. Pomerantz was initially set to testify before the committee on Thursday, but a federal appeals court delayed his testimony to allow for a three-judge panel to hear arguments on a stay pending trial.

Pomerantz did not respond to a request for comment.

“The subpoena was issued with a ‘valid legislative purpose’ in connection with the ‘broad’ and ‘indispensable’ congressional power to ‘conduct investigations.’ It is not the role of the federal judiciary to dictate what legislation Congress may consider or how it should conduct its deliberations in that connection. Mr. Pomerantz must appear for the congressional deposition. No one is above the law,” Vyskocil wrote after hearing arguments in court on the matter earlier in the day.

Bragg’s office says it will appeal, though Vyskocil on Wednesday night denied Bragg’s request to pause her ruling while the appeals process plays out.

In her ruling, Vyskocil said that she “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 complains of political interference in the local DANY (District attorney of New York) case, but Bragg does not operate outside of the political arena. Bragg is presumptively acting in good faith. That said, he is an elected prosecutor in New York County with constituents, some of whom wish to see Bragg wield the force of law against the former President and a current candidate for the Republican presidential nomination,” Vyskocil wrote.

“Jordan, in turn, has initiated a political response to what he and some of his constituents view as a manifest abuse of power and nakedly political prosecution, funded (in part) with federal money, that has the potential to interfere with the exercise of presidential duties and with an upcoming federal election,” the judge added.

Vyskocil reinforced her point in court that it is not her place to consider potential motivations of either side.

“The Court is further unmoved by Bragg’s purported concern at the prospect of ‘inject[ing] partisan passions’ into a forum where they do not belong,” Vyskocil said. “By bringing this action, Bragg is engaging in precisely the type of political theater he claims to fear.”

Pomerantz’s book was a factor

In her ruling, Vyskocil ruled that the district attorney waived the right to privilege over any information in Pomerantz’s book because Bragg’s office didn’t take any legal action before or after the publication of “Inside Account.”

“While Bragg maintains that Pomerantz’s inappropriate disclosures cannot 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. If that information ever was protected from disclosure as attorney work product, the protection has been waived by DANY. Bragg concedes that he was aware of 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 the sticky situation that’s made national headlines.

“The Court notes that Pomerantz is in this situation because he decided to inject himself into the public debate by authoring a book that he has described as ‘appropriate and in the public interest,'” she added.

During the hearing, an attorney for Bragg’s office argued — unsuccessfully — that Pomerantz ignored cautions from the DA before publishing the book, so the district attorney’s office should not be penalized.

“No, I think there are things contained in there that should not have been published and that exposed Mr. Pomerantz to criminal liability under the city charter,” attorney Leslie Dubeck said. “He has not waived our privileges and confidences because they were unauthorized disclosures.”

Dispute over “valid legislative purpose”

Vyskocil acknowledged the stakes of the case during the hearing with lawyers 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,” she said.

But the judge, who was appointed to the bench by Trump and confirmed by the Senate in 2019, said she views her task narrowly as determining whether there is valid legislative purpose for the Judiciary Committee’s subpoena of Pomerantz.

“I’m talking about the subpoena. That’s what’s in front of me, not all the political rhetoric that’s been flying back and forth that’s all color, it’s all theater but it’s not what’s in front of me,” the judge said.

In her ruling, Vyskocil said the committee and Jordan had in fact identified several valid legislative purposes underlying the subpoena.

“There can be no doubt that Congress may permissibly investigate the use of federal funds,” Vyskocil wrote, noting that counsel for Bragg’s office conceded that it used federal forfeiture funds in its investigation of Trump.

The judge also said the committee’s potential to draft legislation from their inquiry is a valid legislative purpose.

“The Court will not, and indeed cannot, block congressional investigation into hypothetical future legislation based on Bragg’s speculation that such legislation would not pass constitutional muster,” the judge wrote.

During the hearing, lawyers for Bragg’s office had conceded that the use of federal funding is a valid legislative purpose but argued $5,000 in federal funds were used in the Trump Organization tax fraud case that ended in a conviction in December, not the indictment of the former president himself.

The Judiciary Committee attorney during the hearing also described what the deposition in Washington, DC, might look like for the former prosecutor.

“Mr. Pomerantz is free to assert privilege if he shows up tomorrow with respect to particular questions, then the committee can ask questions to elicit the basis of privilege and they can adjudicate them on a question-by-question basis,” the committee attorney said.

Committee Chairman Jordan would ultimately be the decider of whether to allow Pomerantz to assert his privilege, the attorney acknowledged.

Bragg’s suit against Jordan

Bragg, a Democrat, sued Jordan, last week to block the subpoena to a former prosecutor, alleging the lawmakers are engaged in a “transparent campaign to intimidate and attack” the DA’s office.

Bragg is seeking 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 followed weeks of heated exchanges between Jordan and Bragg leading up to and following the indictment of Trump on 34 felony counts of falsifying business records that was allegedly done to coverup a hush money payment to adult film actress Stormy Daniels to stop her from going public about an alleged affair a decade earlier. Trump has denied the affair and pleaded not guilty to the charges.

The clash between federal and state powers 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 indict Trump. Jordan called it an “unprecedented abuse of prosecutorial authority.” Bragg’s office has alleged that a Trump attorney worked behind the scenes to enlist help from allies in Congress and called Jordan’s inquiry into the ongoing criminal investigation an unconstitutional and “unprecedented inquiry into 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 said they are immune from the civil lawsuit under the Speech and Debate clause of the US Constitution that protects lawmakers from being sued for actions stemming from their legislative actions. They have also argued the subpoena is valid because they are seeking the information to potentially craft legislation that would protect a president from politically motivated state and local prosecutions and allow them to move criminal actions to federal courts.

In a proposed response filed with the court, Bragg argues that constitutional immunity assumes the actions are part of legitimate legislative activity, which he argues the subpoena isn’t.

“Speech or Debate immunity is not license for Congress to disregard the very separation of powers the clause aims to secure,” he wrote.

Pomerantz has joined Bragg in asking the judge to block the subpoena for his testimony, saying he was not involved in the decision to seek an indictment of Trump since he resigned more than a year before the indictment was returned.

Vyskocil’s prior Trump-related case

Before Vyskocil was confirmed as a US district court judge, she 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 who worked primarily on insurance cases over a 33-year career at New York law firm Simpson Thacher & Bartlett. She attended Dominican College of Blauvelt and received her law degree from St. John’s University.

The judge had a notable ruling in September 2020 when she dismissed a defamation lawsuit that former Playboy model Karen McDougal brought against Fox News alleging she was defamed by host Tucker Carlson when he suggested she extorted Trump when she obtained 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 offending statements were made here make it abundantly clear that Mr. Carlson was not accusing Ms. McDougal of actually committing a crime. As a result, his statements are not actionable.”

“But there can be no doubt that Mr. Carlson did so 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 deal to buy and bury 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.

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