Bragg v. Jordan

• Decision Date: 19 April 2023
• Docket Number: 1:23-cv-3032 (MKV)
• Parties: ALVIN L. BRAGG, JR., in his official capacity as District Attorney for New York County, Plaintiff, v. JIM JORDAN, in his official capacity as Chairman of the Committee on the Judiciary, COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, and MARK F. POMERANTZ, Defendants.
• Court: U.S. District Court — Southern District of New York

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ALVIN L. BRAGG, JR., in his official capacity as District Attorney for New York County, Plaintiff, v. JIM JORDAN, in his official capacity as Chairman of the Committee on the Judiciary, COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, and MARK F. POMERANTZ, Defendants.

No. 1:23-cv-3032 (MKV)

United States District Court, S.D. New York

April 19, 2023

OPINION AND ORDER DENYING TEMPORARY RESTRAINING ORDER

MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE

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.

BACKGROUND

On April 6, 2023, the Committee on the Judiciary of the United States House of Representatives (the “Committee”) issued a subpoena, directing Mark F. Pomerantz (“Pomerantz”), a former pro bono employee of the Office of the District Attorney for New York County (“DANY”), to appear on April 20, 2023 “to testify at a deposition touching matters of inquiry committed to [the Committee].” Exhibit 1 (“Ex. 1”) to the Declaration of Theodore J Boutrous, Jr. (“Boutrous Dec.”) [ECF No. 12-1]. The subpoena does not request that Pomerantz produce any documents. See Ex. 1.

The subpoena was accompanied by a letter from the Chairman of the Committee, Jim Jordan (“Jordan”). See Ex. 1. The letter requests Pomerantz's appearance due to his “unique role as a special assistant district attorney leading the investigation into President Trump's finances.” Ex. 1 at 2. It further explains that Pomerantz has “already discussed many of the topics relevant to [the Committee's] oversight in a book [that Pomerantz] wrote and published in February 2023, as well as in several public interviews to promote [his] book.”^[1] Ex. 1 at 2 (citations omitted). Jordan notes that DANY has “acknowledged that it used federal forfeiture funds in its investigations of President Trump,”^[2] and that the Committee was considering “potential legislative reforms,” such as “broadening the existing statutory right of removal of certain criminal cases from state court to federal court.” Ex. 1 at 2.

The book referenced in Jordan's letter is People vs Donald Trump: An Inside Account, written by Pomerantz and published in early 2023. See M. Pomerantz People vs. Donald Trump: An Inside Account (2023) (“Inside Account”). As its subtitle indicates, the book recounts Pomerantz's insider insights, mental impressions, and his front row seat to the investigation and deliberative process leading up to the DANY case against former President and current presidential candidate Donald Trump. Among Pomerantz's observations:

• Within DANY, the case against Trump arising out of payment of so-called “hush money” to Stephanie Clifford was referred to as the “zombie” case. Id. at 200.

• The facts surrounding the payments “did not amount to much in legal terms. Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.” Id. at 40.

• “[C]reating false business records is only a misdemeanor under New York law.” Id. at 40.

• “[T]here appeared to be no [felony] state crime in play.” Id. at 40-41.

• “[T]o charge Trump with something other than a misdemeanor, DANY would have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.” Id. at 41.

• The statutory language (under which Trump was charged) is “ambiguous.” Id. at 40.

• “[T]here was a big risk that felony charges would be dismissed before a jury could even consider them.” Id. at 41.

• “[T]he Trump investigation should have been handled by the U.S. Department of Justice, rather than by the Manhattan district attorney's office.” Id. at 240.

• “[F]ederal prosecutors would not have to torture or massage [statutory] language to charge Trump with a violation,” as DANY would have to do. Id. at 240.

• Federal prosecutors previously looked into the Clifford “hush money payment” and did not move forward with the prosecution. Id. at 242 (emphasis added); see also id. at 39.

• There is a statute of limitations issue with the DANY case against Trump. Id. at 240-41.

• Numerous DANY prosecutors were skeptical about the prosecution of Trump and were referred to internally at DANY as “conscientious objectors.” Id. at 194.

• The invoices and requests for payment from Michael Cohen in connection with the Clifford payments, in a supposed effort to “camouflage” reimbursements, were made “throughout 2017 (after Trump's inauguration as president).” Id. at 39 (emphasis added) (parenthetical in original).

• The DANY prosecution team discussed “Michael Cohen's credibility” as being one of “the difficulties in the case.” Id. at 203.

• At one point, Bragg “commented that he ‘could not see a world' in which [DANY] would indict Trump and call Michael Cohen as a prosecution witness.” Id. at 227 (emphasis added).

• While Pomerantz acknowledged Bragg's right to make prosecutorial decisions, Pomerantz viewed himself as more experienced and qualified than Bragg. Id. at 218-19. Pomerantz makes a point that he was “finishing law school when Alvin was a toddler.” Id. at 208.

• Pomerantz resigned from his pro bono position at DANY when it became clear to him that President Trump would not be indicted. Id. at 248-51; see also Exhibit C (“Ex. C”) to the Declaration of Todd B. Tatelman (“Tatelman Dec.”) [ECF No. 323]. Pomerantz “told the DA that he was responsible for a ‘grave failure of justice' because he would not authorize Trump's indictment.” Inside Account at 1.

• Ultimately in March 2023, Bragg did, of course, indict President Trump, “bring[ing] the ‘zombie' theory back from the dead once again.” Id. at 209.

Jordan and the Committee first tried to acquire information from Pomerantz and DANY voluntarily. See, e.g., Exhibit 2 (“Ex. 2”) to the Boutrous Dec. [ECF No. 12-2]; Exhibit 11 (“Ex. 11”) to the Boutrous Dec. [ECF No. 12-12]; Exhibit 58 (“Ex. 58”) to the Boutrous Dec. [ECF No. 12-61]. While the DANY General Counsel offered to “meet and confer” with the Committee “to understand whether [it] ha[d] any legitimate legislative purpose in the requested materials,” DANY declined to provide information and instructed Pomerantz not to comply with the Committee's requests. Exhibit 10 (“Ex. 10”) to the Boutrous Dec. at 5 [ECF No. 12-11]; Exhibit 12 (“Ex. 12”) to the Boutrous Dec. [ECF No. 12-13]; see also Exhibit 19 (“Ex. 19”) to the Boutrous Dec. [ECF No. 12-20].

On April 11, 2023, Manhattan District Attorney Alvin L. Bragg, Jr. (“Plaintiff” or “Bragg”)-one of five local district attorneys for the five boroughs in the City of New York- filed a 50-page Complaint in this Court, naming Jordan, the Committee, and Pomerantz as defendants. See Complaint [ECF No. 1] (“Compl.”). Bragg simultaneously filed a motion, brought on by an ex parte proposed order to show cause, seeking a temporary restraining order and a preliminary injunction (1) enjoining Jordan and the Committee from enforcing the subpoena served on Pomerantz and (2) enjoining Pomerantz from complying with the subpoena, see Proposed Order to Show Cause With Emergency Relief [ECF No. 7]; see also Memorandum of Law in Support [ECF No. 8] (“Pl. Mem.”). Plaintiff later filed the Declaration of Theodore J. Boutrous, Jr., accompanied by over 60 exhibits. See Boutrous Dec.

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.

The motion for a temporary restraining order was filed without notice to Defendants and before Defendants even were served with the Complaint. See Certificate of Service [ECF No. 17]; Waiver of Service [ECF No. 18]. In this Court, Local Civil Rule 6.1(d) dictates that any party seeking an ex parte order must submit an “affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made.” No such affidavit was submitted here. Accordingly, the Court issued an Order, declining to enter the proposed order to show cause, directing service on Defendants not only of the motion (with all supporting papers), but also of the Complaint by which this case was initiated, setting a briefing schedule to allow Defendants to be heard, and scheduling a hearing for today to address...