A federal judge weighing whether House Republicans can question a former prosecutor about the Manhattan criminal case against former President Donald Trump peppered lawyers on both sides with questions Wednesday, asking them to parse thorny issues of sovereignty, separation of powers and Congressional oversight arising from the historic indictment.
U.S. District Judge Mary Kay Vyskocil promised to rule within hours of the hearing in a courtroom that, on one side, offered views of the New York City skyline that Trump helped shape as a real estate developer, and on the other, the federal building where House Judiciary Committee Chair Rep. Jim Jordan convened a hearing Monday on Manhattan District Attorney Alvin Bragg's handing of violent crime.
Vyskocil aggressively questioned lawyers for Bragg, who is prosecuting Trump, and the House Judiciary Committee, which started scrutinizing Bragg's investigation of the former president in the weeks before his indictment. Vyskocil, a Trump appointee, sought to focus on the legalities, not the politics surrounding the case.
“I’m talking about the subpoena, that’s what’s in front of me,” Vyskocil said. "Not all the political rhetoric that’s been flying back and forth. That’s all color. That’s all theater, but it’s not what’s in front of me.”
Jordan's committee is seeking to enforce a subpoena for testimony Thursday from Mark Pomerantz, a former prosecutor who once oversaw the yearslong Trump investigation but left the job after clashing with Bragg over the direction of the case. Pomerantz later wrote a book about his work pursuing Trump and discussed the investigation in recent interviews on “60 Minutes” and other shows.
Bragg, a Democrat, sued Jordan and the committee last week seeking to block the deposition. His lawyer, Theodore Boutrous, argued that subpoenaing Pomerantz 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.”
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 and the subpoena for Pomerantz's testimony should stand. He cited the speech and debate clause of the U.S. Constitution.
Pomerantz declined comment as he walked out of the hearing, holding a stack of papers with his book, "People vs. Donald Trump." His lawyer, Ted Wells, said he would accompany Pomerantz if he is required to give deposition testimony on Wednesday.
Neither Pomerantz nor his lawyers spoke during the hearing. But in a declaration submitted to the judge beforehand, he aligned himself with Bragg's position and maintained he should not be questioned by the committee.
Vyskocil said Wednesday that forcing Pomerantz to testify would put him “in a little bit of a difficult position here.”
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 committee ranks below ’60 Minutes,'" Berry argued.
Pomerantz can 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 overrules Pomerantz and he still refuses 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.
In his lawsuit, Bragg said he’s taking legal action “in response to an unprecedently brazen and unconstitutional attack by members of Congress on an ongoing New York State criminal prosecution and investigation of former President Donald J. Trump.”
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 at an arraignment last week.
