Alvin Bragg Sued Jim Jordan and Pomerantz in SDNY Now Judge Asks of Book To Rule ASAP

Analysis of questioning and argument here

by Matthew Russell Lee, Patreon Book Substack

SDNY COURTHOUSE, April 18 – For weeks, a media spotlight has been on Manhattan District Attorney Alvin Bragg, including photographers waiting on Hogan Place and demonstrators on both sides in Collect Pond Park. 

 On April 11, Bragg reached south of Worth Street and filed suit in the U.S. District Court for the Southern District of New York, using an outside law firm, Gibson Dunn & Crutcher LLP. 

  Bragg sued not only Rep. Jim Jordan and his Committee but also his office's former prosecutor Mark Pomerantz, stating that "Mr. Pomerantz' book [People vs. Donald Trump: An Inside Account] did not and could not waive any privilege belonging to the DA's Office."   

 Among the relief requests is "enjoining Mr. Pomerantz's compliance with the subpoena."  

  The assigned District Judge later issued a scheduling order:  "The Court will hold a hearing on Plaintiff's motion on April 19, 2023 at 2:00 PM in Courtroom 18C of the Daniel Patrick Moynihan Courthouse. (Signed by Judge Mary Kay Vyskocil on 4/11/2023)."  

  On April 17 before the 9 am hearing on 26 Federal Plaza, Jordan et al. filed their opposition brief - Brief on Patreon here.

On April 18, on the eve of argument and after a press conference in One Police Plaza, Bragg filed a reply, brief and more on Patreon here.

On April 19, the argument took place. Inner City Press live tweeted it, thread here:

OK - now Bragg v. Jim Jordan argument  - Bragg wants to enjoin House subpoenas, incl of frmr ADA Pomerantz. 

All rise!

 Judge Vyskocil: Appearances, please.  Matthew Berry representing Jim Jordan... Todd Tatelman, for Congressional defendants... 

Bragg's lawyer: This court should enjoin this subpoena on Federalism grounds, would harm the State of NY and the DA

Bragg's lawyer Boutrous: We have Congress seeking to supersede both DA Bragg and Judge Marchan --

Judge Vyskovil: How? Boutrous: They are trying to conduct oversight. Judge Vyskocil: He's speaking generically. He lists 3 legislative purposes for the subpoena

Judge Vyskocil: They want to know if Federal funds are being used. Boutrous: We've already given that information. Judge Vyskocil: Then it will be a short deposition. Hasn't there been a waiver of privilege, in the book? Boutrous:  Ms. Dubeck will address that.

Boutrous: This is to intimidate DA Bragg. They said, We're going to hold him accountable. Judge Vyskocil: Shouldn't I try to not read minds on either side here? If there's a valid legislative purpose, that's the end of the inquiry, right? Boutrous: It's improper

Judge Vyskocil: Let's go back to the book. Boutrous: I knew you'd ask me about it... The Mazars decision really changed things. It didn't get enough play -- Judge Vyskocil: There's politics going on on both sides here, right? Boutrous: I don't concede that

 Boutros: The ALVIN Act, I think it's an insulting name- Judge Vyskocil: I can't and won't look at the possible Constitutionality of an act they would pass. Your opening brief didn't address the Speech and Debate Clause.

Judge Vyskocil: What's before me is the subpoena, not all the political invective that's been flying back and forth. That's just color. 

Ms. Dubeck, how has the privilege not been waived in the book? Dubeck: It's the privilege of my office, not Mr. Pomerantz Judge Vyskocil: Have you read the book? Dubeck: Yes. Judge Vyskocil: Do you think it violated privileges?

Dubeck: Yes. And he has exposed himself to criminal liability under the City Charter. 2606 c - a misdemeanor, a former employee may not disclose

 Dubeck: They haven't shown why the deposition has to happen tomorrow. They are trying to chill our office, over $5000 in Federal forfeiture funds.

Judge Vyskocil: You won't contest you spent it. Why isn't that a legislative purpose, to look into that? Dubeck: If the court were to limit the deposition to the use of Federal funds.... Judge Vyskocil: They have asserted other legislative purposes as well.

Jim Jordan's lawyer Berry: Their argument makes the reason for this legislative inquiry more pressing. Judge Vyskocil: But aren't you making it more political, too?

Berry:  The current president could be prosecuted too. There is a Federal legislative interest Jordan's lawyer Berry: I think this is precluded by the Speech and Debate Clause --

Judge Vyskocil: But I have to find a valid legislative purpose. Berry: They are asking you to block subpoenas in advance. Judge: Maybe I'll hear about that on rebuttal

Judge Vyskocil: ... Is this related to what I have to say is pejoratively referred to as the Alvin Bill?

Berry: We didn't mention that. Let me move to the Mazars case.  Consider Meadows v. Pelosi. The DC Circuit said Mazars had no bearing

Judge Vyskocil: The Mazars decision says subpoena recipients retain rights to privilege. Would you respect that if this goes forward? Berry: Yes, he can consult with the DA's office. He can assert privilege, on a question by question basis, if he shows up tomorrow

 Judge Vyskocil: Mr. Pomerantz has said he does wish to be heard today, so he is being heard through that the DA says. He's a nominal defendant.

Jordan's lawyer Berry: He's not a neutral 3rd party. He's already benefited, selling his book, going on 60 Minutes

Bragg's lawyer Boutrous: We are no longer seeking to block future subpoenas. It is unprecedent for them to come after a local prosecutor -- Judge Vyskocil: It is unprecedent for a local prosecutor to indict a former president, correct? Boutrous: They're punishing

Boutrous: The Chief Justice went through a lot of work in Mazars to set the standards on this- Judge Vyskocil: Why didn't you wait for Congress to seek to enforce the subpoena? Boutrous: They might go straight to contempt- Judge: Do you represent Pomerantz?

Boutrous: These are thorny issues. Judge Vyskocil: Thank you. Boutrous: We'd like time to seek a stay, if you rule against us. Judge Vyskocil: You started this ex parte, you filed an unauthorized reply brief. The timing is what it is. My intent is to rule asap

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Bragg's lawyer: We'll await your ruling. Jordan's lawyer Berry: Congress has the right to investigate expenditure of Federal funds. Congress has the power of the purse. That's all I have.

Judge Vyskocil: I will get a decision published asap.

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