A shocking judicial rebuke to Bragg's anti-Trump persecution machine
Right from the opening paragraph of her order and decision upholding the subpoena issued by the House Judiciary Committee to depose Mark F. Pomerantz, Judge Mary Kay Vyskocil let the hardcore left have it — hurling that battle cry "no one is above the law" back at them.
The request by Manhattan District Attorney Alvin L. Bragg Jr. for a temporary restraining order, enjoining enforcement of the subpoena issued to Mark F. Pomerantz by the Committee on the Judiciary of the United States House of Representatives, chaired by Congressman Jim Jordan, is DENIED. 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.
And that was just for openers.
After referring to the anti-Trump book Pomerantz wrote on leaving his volunteer position in the office of the Manhattan district attorney, Judge Vyskocil sharply criticized the Bragg complaint against the House Judiciary Committee as, mostly, "a public relations tirade against former President and current presidential candidate Donald Trump" that constituted "a motion to quash a subpoena dressed up as a lawsuit."
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. The same is true of the vast majority of the exhibits accompanying the Boutrous Declaration. Of note, the Complaint acknowledges that DANY used federal forfeiture funds in investigating President Trump and/or the Trump Organization. Compl. ¶ 78. Moreover, Bragg concedes that DANY was aware that Pomerantz was writing a book about the Trump investigation and asked to review the manuscript pre-publication. Compl. ¶ 90. Pomerantz declined. Compl. ¶ 90; Pl. Mem. 21–22. At heart, the Complaint simply includes two requests for declaratory and injunctive relief directed at the congressional inquiry. The reality is that, as framed, this action is merely a motion to quash a subpoena dressed up as a lawsuit.
That was not all from this perceptive jurist in the opening pages of her rebuff to Bragg and his apparent coterie. She called attention to Bragg's reply brief as "including a hodgepodge of social media postings, news articles, television interviews, pleadings from unrelated lawsuits." This observation leads to the fair inference that the Bragg filings were more addressed to the editorial board of The New York Times than to a judge in the Southern District of New York. Note, too, a fact not mentioned in media accounts: that Judge Vyskocil received "several unsolicited amicus briefs" from Bragg-supporters, including "former members of Congress, former prosecutors, and academics" who "echo[ed] Bragg's refrain that the subpoena [objected to] will 'interfere with an ongoing criminal prosecution ... brought by a state prosecutor.'"
The day before the scheduled hearing, Bragg filed an eleventh hour reply brief, not authorized by the Court's Scheduling Order given the compressed time frame in which Plaintiff's motion was brought on. The reply largely rehashes the same arguments made in the moving brief and, for the first time, addresses the Speech or Debate Clause. See Reply Brief [ECF No. 41-1] ("Reply"). The reply brief was accompanied by a supplemental declaration attaching sixteen largely irrelevant exhibits, consisting of a hodge-podge of social media postings, news articles, television interviews, pleadings from unrelated lawsuits, and a transcript from the arraignment in the Trump prosecution. See Exhibits 60–72 to the Second Boutrous Declaration [ECF Nos. 41-2 to 41-5]. The Court is in receipt of several unsolicited amicus briefs. An assemblage of former members of Congress, former prosecutors, former government attorneys, and academics filed an amicus brief with the consent of Bragg. See Letter Motion to File Amicus Brief [ECF No. 34]; Amicus Brief [ECF No. 37] ("First Amicus"). Amici argue that the Committee lacked authority to issue the subpoena and echo Bragg's refrain that the subpoena will "interfere with an ongoing criminal prosecution . . . brought by a state prosecutor."
As indicated in the first paragraph from the Vyskocil opinion cited above, the judge, in part, saw the subpoena at issue in broad terms as the exercise by the House Judiciary Committee pursuant to a "valid legislative purpose."
This is to suggest, however, that House Judiciary Committee chairman Jim Jordan might have narrowed this "valid legislative purpose" in terms of amending the Former Presidents Protection Act of 2012, which clearly reflected a federal need to protect former presidents from attack, including retaliatory prosecution of state or local officials hostile to a former president. The former Bragg volunteer aide Mark F. Pomerantz, a 71-year-old foe of former president Trump, prosecuted convicted racketeer John Gotti and in his book compared the former president to Gotti. People with the partisan zealotry of a Pomerantz likely would have no difficulty with the imprisonment of a former president they despise — but to the point of disregarding the federal policy of providing protection for former presidents?
What Pomerantz and his ilk propose is the interference of a state criminal prosecution with a federal statute — namely, the Former Presidents Protection Act of 2012. Clearly, Bragg's interference with that federal statute demands that it be amended to provide that state or local prosecution of a former president must be removed to a federal court. The need for such an amendment, to be drafted by the House Judiciary Committee, requires that the Court of Appeals for the Second Circuit, which has stayed Judge Vyskocil's order, rule quickly in support of her wise order and decision. To do otherwise would be calamitous.
Image via Flickr, public domain.