House points to Jan. 6 committee in defending GOP's right to subpoena ex-Bragg aide

The House Judiciary Committee cited an unlikely inspiration — the Democratic-run Jan. 6 panel — in its Monday response to Manhattan District Attorney Alvin Bragg as the two sides battle over the GOP’s attempt to investigate the New York prosecution of Donald Trump.

The GOP-led panel noted that the select committee, which investigated the attack on the Capitol, had repeatedly won in court battles over subpoena enforcement, even against witnesses who argued their testimony was protected by various legal privileges. And the same conclusion should apply to the GOP subpoena of former Bragg aide Mark Pomerantz, the Judiciary Committee noted in a brief filed by House lawyers.

“Even if a privilege could potentially apply to certain questions at Pomerantz’s deposition, that is no basis to quash the subpoena,” House General Counsel Matthew Berry wrote in a 35-page response to a lawsuit that Bragg filed last week against the the Judiciary panel. “Instead, Pomerantz must appear and invoke any claimed privilege on a question-by-question basis.”

Bragg's lawsuit, filed in federal district court in Manhattan, seeks a court order preventing the House from enforcing the subpoena. An initial hearing is scheduled for Wednesday.

As precedent for courts rejecting recent challenges to congressional subpoenas in recent months, the House’s brief cites the Jan. 6 committee’s litigation against four people: John Eastman, a top architect of the former president’s bid to overturn the 2020 election; Katherine Friess, a lawyer working with Trump ally Rudy Giuliani; Kelli Ward, the chair of the Arizona GOP; and Mark Meadows, former Trump chief of staff.

Pomerantz, a former assistant DA, resigned from Bragg’s office in February 2022 amid frustration at the DA’s apparent reluctance to bring a case against Trump. Pomerantz has since written a book — The People vs. Donald Trump — that describes his work on that case and offers his unvarnished views about Trump himself.

Though the court fight is laden with the Judiciary Committee’s charged political rhetoric related to Trump’s indictment in New York, it’s also a reminder that courts are generally reluctant to stand in the way of congressional subpoenas, especially in politically sensitive matters.

While Congress has some narrow limits on its investigative powers, courts generally defer to lawmakers’ broad authority to investigate anything with a conceivable “legislative purpose.” Bragg has contended that no such purpose exists behind the Judiciary panel's bid to subpoena Pomerantz and delve into the decision-making behind Bragg’s indictment of Trump earlier this month.

The Judiciary panel, chaired by Rep. Jim Jordan (R-Ohio), also specifically argues that Bragg’s lawsuit to block the Pomerantz subpoena is barred by the Constitution’s “speech or debate” clause. That provision gives lawmakers formidable protection against attempted lawsuits by outside actors over their official work.

The Judiciary panel has contended that it wants to study the ramifications of a local criminal indictment on a former president, for both its security implications and its potential chilling effect on officeholders. Bragg’s office countered by describing that purpose as a pretense to undermine a state-level criminal probe, arguing that Congress has no jurisdiction in the area.

The Judiciary Committee repeatedly emphasized that Pomerantz’s willingness to share internal details of the Bragg office’s Trump probe in his book undercut any potential privilege claims he might make against a subpoena. Bragg, the committee noted, didn’t take legal action to block Pomerantz’s book or his subsequent media interviews about it.

The House committee also rejected Bragg’s efforts to bolster his opposition to the subpoena by citing another Trump-related matter — the Democratic push to obtain the former president’s financial records from an accounting firm.

That 2017 Democratic effort led to a Supreme Court case that described some limits on congressional efforts to obtain the personal information of a sitting president. But the House argues that the ruling has no relevance to the DA’s bid to stop a former subordinate from testifying.

For his part, Pomerantz indicated Monday that he backs Bragg’s effort to block the subpoena. He argued in a declaration filed with the court that he has no relevant knowledge to share with the committee, since he left the office long before Bragg decided to indict Trump.

He added that he’s in an “impossible position” thanks to the competing demands of Bragg’s office — which has instructed Pomerantz not to testify — and Jordan’s threat to enforce the subpoena.

“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,” Pomerantz said in a. “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.”