Alvin Bragg
Sued Jim Jordan and
Pomerantz in SDNY Now
Judge Asks of Book To Rule
ASAP
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
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.
The
case is Bragg
v. Jordan, et
al.,
23-cv-3032
(Vykocil)
More
including
analysis on
Substack here
***
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