Bragg v. Jordan

Background

The House Judiciary Committee issued a subpoena directing Mark F. Pomerantz, a former pro bono employee of the Office of the District Attorney for New York County, to appear for a deposition. The subpoena sought testimony, not documents. Committee Chairman Jim Jordan’s accompanying letter identified Pomerantz’s role in the investigation of Donald Trump and his public discussion of that investigation in a book and interviews. The letter also referred to the use of federal forfeiture funds in the investigation and possible legislative reforms, including changes involving prosecutions of current or former presidents.

Alvin L. Bragg, Jr., in his official capacity as District Attorney for New York County, sued Jordan, the Committee, and Pomerantz. Bragg sought a temporary restraining order and a preliminary injunction blocking enforcement of the subpoena and preventing Pomerantz from complying with it. Pomerantz did not oppose the requested injunction and urged the court to grant it. Jordan and the Committee argued that the subpoena served valid legislative purposes and that they were protected from suit by the Constitution’s Speech or Debate Clause.

Standing

The court concluded that Bragg had sufficiently alleged standing even though the subpoena was directed to Pomerantz rather than Bragg or his office. Bragg claimed that the deposition could affect the confidentiality of deliberations within the District Attorney’s Office. Because Jordan’s letter referred to the New York County District Attorney’s conduct and Pomerantz’s former role, the court found that those allegations were enough at this early stage of the case.

Temporary restraining order

A temporary restraining order requires a showing that the applicant is likely to succeed on the merits, likely to suffer irreparable harm, that the balance of hardships favors relief, and that an injunction would serve the public interest. The court held that Bragg had not shown a likelihood of success and therefore did not need to address the other requirements.

The court ruled that the subpoena had a valid legislative purpose. It identified the Committee’s investigation into DANY’s use of federal forfeiture funds as sufficient by itself to support the subpoena, particularly because Congress may investigate the use of federal money and consider legislation concerning that use. The court also found that Congress could investigate possible reforms concerning state prosecutions of current or former presidents and prosecutions that might affect federal elections. The court declined to block an investigation based on Bragg’s speculation that possible future legislation might be unconstitutional.

The court rejected Bragg’s claim that the subpoena’s real purpose was to undermine or retaliate against the New York prosecution. It stated that courts must generally presume that a committee’s stated legislative purpose is its real purpose and may not invalidate an investigation that serves a legislative purpose based on the motives behind it. The court also concluded that the heightened analysis from Trump v. Mazars USA, LLP did not apply because that case involved a subpoena for a sitting President’s personal information, while this subpoena sought testimony from Pomerantz, whom the court described as a private citizen.

The court found no sufficient basis to conclude that the deposition would interfere with the New York criminal prosecution. Pomerantz was no longer employed by DANY, was not involved in the prosecution, and was not employed there when Trump was indicted. The court also noted that Pomerantz could object to questions and decline to answer when a privilege or other protection applied. It declined to decide in advance whether particular future questions would be permissible.

The court further stated that any privilege covering information already disclosed in Pomerantz’s book may have been waived because DANY knew about the planned book, did not obtain prepublication review, and did not take other described action to prevent or challenge its publication. The court did not resolve the defendants’ Speech or Debate Clause and Federal Rule of Civil Procedure 19 arguments, although it stated that the possible immunity of Jordan and the Committee weighed against finding that Bragg was likely to succeed.

Disposition

The court denied the motion for a temporary restraining order enjoining the subpoena and preventing Pomerantz from appearing. Pomerantz was required to appear for the deposition, while retaining the ability to assert applicable objections or privileges. The court retained jurisdiction over the dispute and related claims concerning the Committee’s inquiry into federal funds and ordered the parties to file a joint status report within 30 days.