Former Trump Investigator Mark Pomerantz Avoids Jim Jordan Circus for Now
A New York federal appeals judge derailed House Judiciary Committee chairman Jim Jordan’s planned Thursday deposition of Mark Pomerantz, the former Manhattan special prosecutor who helmed a criminal investigation of Donald Trump — issuing a temporary stay of the Republican firebrand’s subpoena.
The decision stemmed from Jordan’s demand that Pomerantz — who quit his gig in Manhattan District Attorney Alvin Bragg’s office over dissatisfaction with the prosecutor’s alleged handling of the Trump probe — sit for a deposition. Jordan claimed in his request that the committee wanted to investigate whether Bragg had pursued a “politically motivated” prosecution.
Bragg, under whom Pomerantz worked, filed a lawsuit to block the subpoena. During a testy court proceeding Wednesday, Trump-appointed judge Mary Kay Vyskocil grilled both sides but ultimately ruled against Bragg’s office, writing in a decision: “Mr. Pomerantz must appear for the congressional deposition,” she wrote. “No one is above the law.”
Bragg’s office filed emergency paperwork asking to pause the subpoena until they can make the case that there should be a stay in place while appealing Vyskocil’s decision. The second circuit judge agreed, writing: “IT IS HEREBY ORDERED, that an administrative stay of the return date of the subpoena is granted so that a three-judge panel may consider the motion seeking a stay pending appeal of the district court’s order. This order reflects no judgment regarding the merits of the parties’ respective positions.”
Jordan subpoenaed Pomerantz two days after Trump was arraigned on 34 felony counts of falsifying business records; Bragg filed a lawsuit on April 11 to block the subpoena, calling Jordan’s move a “transparent campaign to intimidate” his office. He had requested a temporary restraining order to prevent the deposition until this case played out in court.
Bragg has said that Jordan demanded that his office provide “confidential documents from the District Attorney himself as well as his current and former employees and officials.” Bragg’s lawsuit contends that Congress — a federal body — doesn’t have the right to intervene under the U.S. Constitution. The legislative body, Bragg’s suit charges, “has no power to supervise state criminal prosecutions.”
“Yet that is precisely what Chairman Jordan is trying to do. He and his allies have stated they want the District Attorney to come to Capitol Hill to ‘explain’ himself and to provide ‘a good argument’ to Congress in support of his decision to investigate and prosecute Mr. Trump,” the suit argues. “And they have threatened that the House of Representatives will ‘hold Alvin Bragg … to account’ for indicting Mr. Trump.”
“Now, Chairman Jordan has subpoenaed one of the District Attorney’s former Special Assistants to interrogate him about his official prosecutorial activities,” the suit alleges. “But subpoenaing a former line prosecutor to talk about an ongoing criminal prosecution and investigation is no less of an affront to state sovereignty than subpoenaing the District Attorney himself.” Moreover, Bragg’s office contends that peppering Pomerantz with questions undermines the legal privilege that bars him from discussing many of the office’s inner workings.
Lawyers for the committee have contended that Pomerantz waived this privilege when he published his book, People vs. Donald Trump: An Inside Account, in early 2023. They pointed to Pomerantz’s many TV appearances, where he discussed the investigation, as undermining a privilege claim. If Pomerantz is speaking out publicly, so their argument goes, how could he claim that professional ethics and rules bar him from a behind-closed-doors chat with Congress? They insist that the demand for Pomerantz’s testimony is part of congressional oversight powers. “Congress has a specific and manifestly important interest in preventing politically motivated prosecutions of current and former Presidents by elected state and local prosecutors, particularly in jurisdictions — like New York County — where the prosecutor is popularly elected and trial-level judges lack life tenure,” Jordan said in a letter sent with the subpoena.
“Among other things, if state or local prosecutors are able to engage in politically motivated prosecutions of Presidents of the United States (current or former) for personal acts, this could have a profound impact on how Presidents choose to exercise their powers while in office,” the letter said. “For example, a President could choose to avoid taking action he believes to be in the national interest because it would negatively impact New York City for fear that he would be subject to a retaliatory prosecution in New York City.”
Vyskocil seemed somewhat annoyed during the proceeding. She hit both sides with incisive questions ranging from political theory — ”aren’t we really talking about federalism, not separation of powers here?” — and whether those involved in this case were acting like “civilized” adults. “Did anyone try talking this out before winding up in court? Why can’t that happen here?”
At one point, she asked Bragg’s leading lawyer, Ted Boutrous: “Tell me, Mr. Boutrous: How does this book, which is chock full of what Mr. Pomerantz calls an ‘insider account,’ how does it not disclose mental impressions, deliberations of the office, the internal workings of the district attorney’s office? How is there not a waiver?” Vyskocil held up the book at this point. At several other junctures, Vyskocil leafed through the pages for reference.
She also appeared exasperated by partisanship.
“There’s politics going on on both sides here — let’s be honest about that,” she told Boutrous, who said he did not agree. Vyskocil noted the photos of Trump’s social media posts in Bragg’s complaint. “Mr. Boutrous, what did half of the pictures and allegations in your complaint have to do with the subpoenas?”
She similarly took issue with the committee’s language in demanding Pomerantz be questioned. “Do you need your adjectives of politically motivated if you’re telling me that a valid legislative purpose is all of these protections of a president or a former president, and the need to avoid interference with presidential [action]?”
“Does the prosecution have to be ‘politically motivated’ to implicate those concerns?” the judge said, adding shortly thereafter, “Doesn’t it politicize it on your side as well?”
In the end, though, she sided with the committee.
“In our federalist system, elected state and federal actors sometimes engage in political dogfights. Bragg complains of political interference in the local DANY case, but Bragg does not operate outside of the political arena. Bragg is presumptively acting in good faith,” she wrote. “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.”
“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 decision also said. “The Court does not endorse either side’s agenda. The sole question before the Court at this time is whether Bragg has a legal basis to quash a congressional subpoena that was issued with a valid legislative purpose. He does not.”
This afternoon’s court decision comes two days after Jordan lobbed another bizarro salvo at Bragg — a chaotic “field hearing” in downtown Manhattan, which involved waxing breathlessly about violent crime in New York City. Said “field hearing” was part of Jordan’s campaign to cast Bragg as a soft-on-crime prosecutor who’s hell-bent on pursuing Trump to the detriment of Manhattan.