In Bragg v. Jordan, a familiar legal strategy emerges

NEW YORK – Manhattan District Attorney Alvin Bragg’s new lawsuit against Rep. Jim Jordan is an aggressive counterpunch for a first-term elected prosecutor who is typically averse to politics. But it’s not the first time that Bragg, a Democrat, has fought House Republicans.

He’s dusting off a legal strategy devised seven years ago by one of his top lieutenants when they both worked in the New York attorney general’s office. That strategy — defying federal subpoenas by invoking state sovereignty — shows a prosecutor intent on defending the independence of local investigations from congressional oversight. And by suing Jordan and his House Judiciary Committee directly, Bragg has escalated his public confrontation with the House GOP over the investigation and indictment of former President Donald Trump.

Bragg’s lawsuit, filed Tuesday in federal court in New York, asks a judge to block a subpoena seeking testimony from Mark Pomerantz, a former assistant DA who briefly worked under Bragg and has criticized aspects of his Trump investigation.

The lawsuit echoes legal arguments advanced in 2016 and 2017 in another subpoena fight on a hot-button issue. At the time, New York’s attorney general, Democrat Eric Schneiderman, was investigating whether Exxon Mobil misled investors about the risks of climate change. A GOP-controlled House panel accused Schneiderman of having a political agenda and served subpoenas seeking documents from the probe. Bragg was a senior official in Schneiderman’s office, as was Leslie Dubeck, who was then counsel to the attorney general and is now Bragg’s general counsel.

Congressional interference with state and local prosecutors is unusual and raises delicate questions about the balance of power between Congress and the states. So Schneiderman’s office resisted.

Dubeck was the architect of Schneiderman’s approach. She led the attorney general’s refusal to comply, and she prepared to either sue the House committee or defend the attorney general’s office if the committee took the matter to court. The panel’s investigation, shewrote at the time, “oversteps the boundaries imposed by federalism” and violates New York’s sovereignty.

The conflict ultimately fizzled when the subpoenas lapsed, but Bragg and Dubeck have now revived the strategy.

“They know the cards that the House Republicans have to play in this situation,” Eric Soufer, who was a spokesman for Schneiderman during the Exxon case, said of Bragg and Dubeck.

Bragg’s lawsuit replicates many of the arguments that Dubeck made in the Exxon matter. The lawsuit says the Pomerantz subpoena violates “basic principles of federalism and common sense” and accuses the House GOP of infringing on Bragg’s authority and New York’s sovereign interests.

Judge Mary Kay Vyskocil, a Trump appointee, declined on Tuesday to issue an immediate order blocking the subpoena, and she scheduled an initial hearing for next Wednesday.

The House GOP’s probe of Bragg’s investigation is led by Jordan (R-Ohio), Oversight Chair James Comer (R-Ky.) and Administration Chair Bryan Steil (R-Wis.). The Pomerantz subpoena is the first one they have issued.

Though Bragg’s colleagues have said the first-term Democrat doesn’t have much of a taste for political warfare, his effort to combat the House inquiry received a warm reception from those interested in seeing the district attorney defend the institution.

“The office should not capitulate to people with special interests,” said Joan Vollero, who handled communications and intergovernmental affairs for Bragg’s predecessor, Cyrus Vance Jr. “I think, ironically, the House Republicans on the Judiciary Committee are playing the same game of politics that they’ve accused the office of playing.”

Congressional Republicans have criticized Bragg’s investigation of the former president as evidence of his political bias, arguing that the district attorney’s pursuit of Trump stands in contrast to his liberal-leaning criminal justice policies for minor offenses. In advance of Trump’s indictment, House Speaker Kevin McCarthy warned that charges against the former president would be “an outrageous abuse of power by a radical DA who lets violent criminals walk as he pursues political vengeance against President Trump.”

Another irony in the case is that Bragg is borrowing some of the same arguments that Trump himself often used to resist congressional subpoenas when he was president. Trump frequently argued that Democrats’ probes into his finances were meant to harass him for political gain rather than promote a legitimate legislative purpose.

Bragg is now taking a similar position about the House GOP inquiry. His lawsuit repeatedly cites a Supreme Court decision in a Trump subpoena fight, Trump v. Mazars, which suggested that congressional subpoenas against another branch of government can violate the separation of powers if they have an improper purpose.

From an optics perspective, Soufer said, it is wise of Bragg to counterpunch. “If you let them politicize it the way they want to,” he said, “you’re going to lose in the court of public opinion.”

Both sides are launching increasingly aggressive public appeals. On Monday, Jordan’s committee is planning to hold a “field hearing” in Manhattan on Bragg’s “pro-crime, anti-victim policies.” A spokeswoman for Bragg has called the event “a political stunt” and has highlighted crime statistics showing a decline in murders, shootings, burglaries and robberies.