Manhattan District Attorney Alvin Bragg’s legal team lost their bid to block the deposition of his former deputy on Wednesday, as a federal judge appointed by former President Trump quickly rejected the prosecutor’s request for a restraining order after a fiery hearing.
In a 25-page opinion and order issued within two hours of the hearing, U.S. District Judge Mary Kay Vyskocil deployed a phrase often used against Trump and repackaged it for Bragg’s ex-deputy Mark Pomerantz.
“The subpoena was issued with a ‘valid legislative purpose’ in connection with the ‘broad’ and ‘indispensable’ congressional power to ‘conduct investigations,'” she 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. Mr. Pomerantz must appear for the congressional deposition. No one is above the law.”
Earlier on Wednesday, Judge Vyskocil interrupted Bragg’s attorney Theodore Boutrous repeatedly throughout the hourlong hearing, accusing him of playing politics.
“There’s politics going on here on both sides here,” Vyskocil said. “Let’s be honest about that.”
When reports emerged that a grand jury was gearing up to indict Trump, House Judiciary Chairman Jim Jordan started scrutinizing Bragg in a series of letters that capped off in a letter to his former deputy Mark Pomerantz. Bragg accused Jordan of an unprecedented campaign of interference into a local prosecutor’s investigation. The DA eventually sued Jordan and his committee in federal court.
Vyskocil rattled off at length about her view of the political backdrop of the spat toward the end of the opinion, which includes 17 footnotes.
“In our federalist system, elected state and federal actors sometimes engage in political dogfights,” she wrote in her conclusion. “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. 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 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.”
Throughout the proceedings, Vyskocil peppered multiple attorneys for Bragg with questions on various topics. One of those topics was Pomerantz’s book “People v. Trump,” criticizing the DA for declining to prosecute the former president in a separate tax matter.
In a particularly cutting series of questions, the judge asked Boutrous directly: “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?”
The DA’s office insists that the DA’s privilege wasn’t Pomerantz’s to waive.
Bragg’s general counsel Leslie Dubeck addressed the waiver question in separate questioning, which was equally incisive.
“Have you read this book?” Vyskocil, who had a copy of the tome, asked.
“Yes,” Dubeck acknowledged.
“Does it preserve your confidences?” the judge needled.
Dubeck acknowledged that Pomerantz did not and said he opened himself to criminal and civil liability. The judge then pointedly asked whether the DA’s office took any actions to block the distribution of the book. Her ruling hammers that point further.
“Bragg cannot seriously claim that any information already published in Pomerantz’s book and discussed on prime-time television in front of millions of people is protected
from disclosure as attorney work product (or otherwise),” she wrote. “On the record at the hearing on the motion for emergency relief, Bragg’s counsel admitted that Pomerantz’s book did not preserve the confidences of the District Attorney’s Office. While Bragg maintains that Pomerantz’s inappropriate disclosures cannot waive DANY’s privilege, such a claim is belied by DANY’s inaction in response to Pomerantz’s known plan to publish a book about DANY’s investigation into President Trump. If that information ever was protected from disclosure as attorney work product, the protection has been waived by DANY.”
The Judiciary Committee claims the subpoena of Pomerantz is also justified as part of an effort to examine how federal funds are spent by the local prosecutor’s office.
‘Color’ and ‘theater’
In a letter preceding its lawsuit, the DA’s office denied spending any federal money to prosecute Trump, and it’s given the U.S. government more than it gets, adding more than $1 billion into its coffers over the past 15 years. By contrast, Bragg’s predecessor Cyrus Vance spent roughly $5,000 on expenses incurred relating to the investigation of Trump or his namesake business between October 2019 and August 2021, according to the letter.
Bragg says he didn’t spend any federal funds on his investigation and indictment of Trump.
On Wednesday, the DA’s lawyer conceded that looking into the expenditure of federal money would be a valid legislative purpose, but she said that this wasn’t the case for exploring that.
Jordan, R-Ohio, held a “field hearing” earlier this week attacking Bragg’s crime record, and Boutrous cited it at one point as evidence that the investigation is an attempt to “intimidate” the DA.
“That’s your interpretation of it,” Vyskocil snapped.
At another point of the proceedings, she said that she isn’t interested in the “color” and “theater” of what takes place outside the courtroom.
The committee’s attorney Matthew Berry didn’t have an easy reception, either, though his questioning was comparably less stinging. The judge noted a seeming disconnect between the committee’s argument that the investigation is needed for legislative purposes and the fact that they’ve already introduced a bill.
“If you already introduced the bill, why do you need testimony?” Vyskocil noted.
She also quizzed Berry on how the committee would handle any claims of privilege by Pomerantz.
“Do you intend to respect the invocation of privilege if this deposition were to go forward?” she asked.
Berry proposed that the chair, Jordan, would decide on a case-by-case basis whether to sustain privilege objections, and Pomerantz complained about having a “partisan decisionmaker” call these shots. If Pomerantz doesn’t like Jordan’s decisions, the judge says, the ex-deputy has “avenues for judicial review.”
Pomerantz indicated in a declaration that he now finds himself between a proverbial rock and a hard place.
“If I refuse to provide information to the Committee, I risk being held in contempt of Congress and referred to the Department of Justice for possible criminal prosecution,” his declaration states. “If, on the other hand, I defy the District Attorney’s instructions and answer questions, I face possible legal or ethical consequences, including criminal prosecution.”
Vyskocil took notice of that Catch-22 during the hearing, but she ultimately wouldn’t relieve Pomerantz of the weight of it. Bragg quickly filed a notice of appeal to the Second Circuit, which they hope will prevent Pomerantz’s imminent testimony.
Have a tip we should know? [email protected]