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Federal appeals court hands Manhattan DA’s former deputy last-minute reprieve from deposition about Trump probe

Rep. Jim Jordan and DA Alvin Bragg

House Judiciary Committee Chair Jim Jordan, R-Ohio, and Manhattan District Attorney Alvin Bragg (D) (Photos via AP — Jordan: John Minchillo; Bragg: Eduardo Munoz Alvarez)

The Second Circuit temporarily blocked the deposition of Manhattan District Attorney Alvin Bragg’s former deputy Mark Pomerantz, mere hours before he was slated to testify before the House Judiciary Committee on Thursday morning.

The administrative stay preserves the status quo as the appellate court decides whether House Judiciary Chairman Jim Jordan’s questioning of Pomerantz is constitutionally permissible.

Earlier this month, Bragg sued the Ohio Republican after his committee issued a subpoena to Pomerantz, who resigned from the DA’s office a little more than a year ago. Pomerantz believed at the time that Bragg had been too timid about prosecuting former President Donald Trump — and wrote about it in a memoir titled “People v. Trump,” describing the case that he would have brought. Jordan argues that Pomerantz whittled away any privilege by writing the book and embarking on a media tour about it.

Pomerantz argues that the subpoena puts him in a bind. If he answers lawmakers’ questions, he could face civil or criminal liability for violating New York grand jury secrecy. He could also faces serious repercussions if he thumbs his nose at Congress.

In a 25-page opinion and order on Wednesday, U.S. District Judge Mary Kay Vyskocil — a Trump appointee — noted that Pomerantz already disclosed plenty about the Trump investigation in his self-styled “insider” account.

The judge sided with Jordan in a scathing ruling sending up a slogan of many of the former president’s critics: “No one is above the law.”

“The subpoena was issued with a ‘valid legislative purpose’ in connection with the ‘broad’ and ‘indispensable’ congressional power to ‘conduct investigations,’” Vyskocil wrote. “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.”

Upholding the district court’s ruling, Bragg’s attorneys argue, would turn the U.S. constitutional order on its head.

“State prosecutors have for centuries carried out their law enforcement function on the understanding that charging decisions would be subject to judicial review in the course of any prosecution—not subject to freewheeling congressional inquiry without the procedural and evidentiary protections afforded under state law,” the DA’s appellate attorney Steven Wu wrote. “The district court’s view of Congress’s subpoena authority would upend that status quo and open the floodgates: any former or current prosecutors involved in any investigation or prosecution of any criminal matter would be at risk of being summoned to explain themselves before a congressional committee if they prosecute violations of state law in cases disfavored by Members of Congress.”

Ever since reports emerged that a Manhattan grand jury appeared primed to indict Trump, the former president’s staunchest loyalists in the House of Representatives sought to undermine Bragg. Jordan sent multiple letters seeking information about the grand jury probe even before Bragg brought charges. The Judiciary Committee’s campaign only has escalated since that time. The GOP-controlled body held an unusual “field hearing” earlier this week in lower Manhattan’s Javits Federal Building, a short walk from the DA’s office. The topic of the hearing purportedly had nothing to do with the Trump prosecution but New York City’s crime record since Bragg took office.

The Democratic lawmakers in the committee’s minority called that a “circus” and “political stunt” to embarrass Bragg and noted that major felonies have been decreasing steadily in New York for decades, including during Bragg’s tenure.

The Second Circuit’s ruling, which was not docketed by press time, was first reported by Fox News.

“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,” the ruling reads. “This order reflects no judgment regarding the merits of the parties’ respective positions.”

Jordan must respond to Bragg’s emergency motion by Friday, and the DA can file a response by Saturday. A hearing date has not yet been set.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."