NEW YORK – A federal appeals court has temporarily blocked House Republicans from questioning a former Manhattan prosecutor about the criminal case against ex-President Donald Trump, the latest twist in a legal battle between Manhattan District Attorney Alvin Bragg’s office and the House Judiciary Committee.
The 2nd U.S. Circuit Court of Appeals issued an administrative stay late Wednesday, hours after a lower court judge ruled there was no legal basis to block the Judiciary Committee's subpoena to former prosecutor Mark Pomerantz. Committee chair Rep. Jim Jordan, an Ohio Republican, had sought to question him Thursday.
In issuing the stay, Judge Beth Robinson noted that her order “reflects no judgment regarding the merits" of the case. A three-judge panel will ultimately weigh whether to uphold or overturn the lower-court’s decision. Robinson, a Biden appointee, set an aggressive briefing schedule, ordering Bragg's office to file court papers detailing its appeal by Friday and for the Judiciary Committee to submit its response by Saturday.
Bragg's office appealed to the 2nd Circuit hours after U.S. District Judge Mary Kay Vyskocil rejected his request for a temporary restraining order, ruling Wednesday that Jordan had a valid legislative purpose in issuing the subpoena.
“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,” Vyskocil wrote in a 25-page opinion. “Mr. Pomerantz must appear for the congressional deposition. No one is above the law.”
Vyskocil, a Trump appointee, ruled after peppering lawyers on both sides with questions, asking them to parse thorny issues of sovereignty, separation of powers and Congressional oversight arising from Trump's historic indictment.
Acknowledging the “political dogfights” surrounding the case, the judge said in her ruling that she “does not endorse either side’s agenda.” She encouraged both sides to speak and “reach a mutually agreeable compromise” on how Pomerantz's deposition would proceed.
Jordan’s spokesperson, Russell Dye, lauded Vyskocil’s ruling, saying it showed that “Congress has the ability to conduct oversight and issue subpoenas to people like Mark Pomerantz.”
Bragg's office appealed, first asking Vyskocil to issue a stay — which she rejected — before finding success with the appeals court.
Pomerantz once oversaw the yearslong Trump investigation but left the job after clashing with Bragg over the direction of the case. He recently wrote a book about his work pursuing Trump and discussed the investigation in interviews on “60 Minutes” and other shows.
Bragg, a Democrat, sued Jordan and the Judiciary Committee last week seeking to block the subpoena. His lawyer, Theodore Boutrous, argued that seeking Pomerantz’s testimony was part of a “transparent campaign to intimidate and attack” Bragg and that Congress was “invading a state” to investigate a local prosecutor when it had no authority to do so.
Boutrous said House Republicans’ interest in Bragg amounted to Congress “jumping in and haranguing the D.A. while the prosecution is ongoing.”
The Judiciary Committee started scrutinizing Bragg’s investigation of the former president in the weeks that preceded his indictment. Jordan sent letters seeking interviews with Bragg and documents before subpoenaing Pomerantz. In her ruling, Vyskocil said she would handle any legal fights that may arise from other subpoenas in the committee’s investigation of Bragg.
A committee lawyer, Matthew Berry, countered that Congress has legitimate legislative reasons for wanting to question Pomerantz and examine Bragg's prosecution of Trump, citing the office's use of $5,000 in federal funds to pay for Trump-related investigations.
Congress is also considering legislation, offered by Republicans in the wake of Trump's indictment, to change how criminal cases against former presidents unfold, Berry said. One bill would prohibit prosecutors from using federal funds to investigate presidents, and another would require any criminal cases involving a former president be resolved in federal court instead of at the state level.
House Republicans, Berry said, want to protect the sovereignty and autonomy of the presidency, envisioning a scenario where the commander in chief could feel obligated to make certain decisions to avoid having local prosecutors in politically unfavorable jurisdictions charge them with crimes after they leave office.
For those reasons, Berry argued, Congress is immune from judicial intervention, citing the speech and debate clause of the U.S. Constitution.
Vyskocil presided over the hearing in a Manhattan courtroom that offered sweeping, high-level views of the New York City skyline that Trump helped shape as a real estate developer, the courthouse where he was arraigned April 3, and the federal building where Jordan continued his war on Bragg by convening a hearing Monday on the prosecutor’s handing of violent crime.
Pomerantz declined comment as he walked out of the hearing holding a stack of papers with his book, “People vs. Donald Trump,” on top. Neither Pomerantz nor his lawyers spoke during the hearing. But in a court filing, he aligned himself with Bragg's position and maintained he should not be questioned by the committee.
Berry, the committee lawyer, argued that Pomerantz has already shared lots of information with the public about his work on the Trump investigation and the Judiciary Committee has the right to question him about it, too.
“I don’t think this is either rational or reasonable behavior that somehow the House Judiciary Committee ranks below ’60 Minutes,'" Berry argued.
Pomerantz could refuse to answer certain questions, citing legal privilege and ethical obligations, and Jordan would rule on those assertions on a case-by-case basis, Berry said, but he shouldn't be exempt from showing up. If Jordan were to overrule Pomerantz and he still refused to answer, he could then face a criminal referral to the Justice Department for contempt of Congress, but that wouldn't happen immediately, Berry said.
Trump was indicted last month on 34 felony counts of falsifying business records related to hush-money payments made during the 2016 campaign to bury allegations of extramarital sexual encounters. He has denied wrongdoing and pleaded not guilty.