Jim Jordan takes a page out of Democrats’ harassment playbook, and a partisan progressive prosecutor cries ‘POLITICS!’ Yawn . . .
As our Caroline Downey reported yesterday, Alvin Bragg, the elected progressive Democrat who campaigned for Manhattan district attorney vowing to use the power of that office against a political opponent, Donald Trump, filed the predictable lawsuit against Jim Jordan, the Trump-allied Republican congressman who is using his power as House Judiciary Committee chairman to harass Bragg for harassing Trump.
A pox on both their houses.
Bragg filed his suit in federal district court in Manhattan – the Southern District of New York, where he used to be a federal prosecutor and where the District Attorney’s office is located. It appears he didn’t get the home game he was hoping for. The SDNY case has been assigned to Judge Mary Kay Vyskocil, a Trump appointee.
I doubt this will matter. A longtime New York City commercial litigator, Vyskocil became a federal bankruptcy judge in 2016, then was easily confirmed as a district court judge in 2019. She enjoyed significant Democratic support in the Senate. In part, this was because she would not have made it through the process unless Majority Leader Chuck Schumer and his fellow New York Democrat Kirsten Gillibrand allowed it, and in part because Vyskocil was already in her sixties (she’s 65 now). Senators are more inclined to confirm older nominees from the opposition party because older judges tend to take senior status in just a few years, which – depending on how presidential and Senate elections break – could open the seat for a younger nominee of the senators’ party.
While I don’t think much of Bragg’s lawsuit, he would have been better off filing it in Washington, D.C., district court. It’s always something of a crapshoot, but that bench has a majority of Democratic appointees and has been hospitable to investigators and prosecutors of Trump and his followers – though, to be fair, the law has generally been on the side of those investigators and prosecutors.
Judge Vyskocil has given Jordan until Monday (April 17) to respond to Bragg’s claims. She has scheduled a hearing on Wednesday (April 19) – the same day that Mark Pomerantz, a former special assistant in Bragg’s office who ran the Trump investigation, is supposed to appear for House testimony pursuant to a subpoena issued by Jordan. Nominally, Pomerantz is a defendant in Bragg’s suit; that’s just to shore up his legal basis for refusing to testify, which he has done at Bragg’s direction on separation-of-powers grounds. Pomerantz is no longer in the DA’s office, but to subpoena him regarding his work there is no less objectionable, as a matter of law, than would be subpoenaing Bragg himself – which, so far, Jordan has stopped short of doing.
I don’t think much of Bragg’s lawsuit even though, as a matter of constitutional principle, I believe he is right that Congress has no general supervisory power over state law-enforcement officials. As I’ve explained, Jordan and his fellow Republican committee chairmen are running roughshod over federalism principles that used to be important to conservatives, and they are committing political malpractice by turning their committees into Trump’s defense counsel. But Bragg’s strongest legal arguments have been eviscerated by congressional Democrats, who shamelessly politicized their legislative power in pursuit of then-President Trump’s personal financial records, particularly his tax records.
It was patently obvious that Democrats used their subpoena power, which is supposed to be reserved for proper federal legislative purposes, to pursue partisan ends – mainly, to force the surrender of Trump tax information, which progressives and the media were ballistic that he refused to reveal after first committing to disclose early in the 2016 campaign. House Democrats feigned all manner of high-minded legislative purposes in subpoenaing Trump’s financial records, but everyone knew full well that their purpose was partisan.
The Supreme Court foolishly waded into this political morass, which the Court had succeeded in avoiding for some 233 years. Ultimately, the justices resolved nothing in their 2020 Trump v. Mazars decision. They wrung their hands between acknowledging (a) that the president has a very important job, which judges should be mindful of when Congress’s subpoena demands appear vexatious, and (b) that Congress’s authority to subpoena information is nigh limitless and that if it claims an ostensibly proper legislative purpose, it is not the Court’s place to examine the good faith of that claim.
What this means, of course, is that when there is a collision between political components of government – components that the Constitution arms with their own arsenals to do battle with one another – the apolitical judicial branch should butt out and let them resolve it by the traditional means of combat and compromise. Alas, since the Court has now undertaken to involve itself, these battles will be long, drawn-out litigation, presided over by judges who have not gotten clear guidance on resolving them. The litigation will make compromise more elusive.
There is no doubt that Congress has a legitimate legislative purpose in examining how federal taxpayer dollars transferred to state and municipal agencies, including district attorneys’ offices, are spent. Of course, down here on Planet Earth, that is not the reason Jordan seeks information and testimony from Bragg and Pomerantz. But then again, the House Democrats’ pursuit of Trump’s tax records (and records of stays by foreign diplomats at Trump hotels, and grand jury information from the Mueller probe, and so on) were not legislative- or oversight-related; they were the placing of congressional power in the service of a partisan crusade against Trump. Jordan is just taking a page out of the Democrats’ playbook.
Don’t get me wrong, because I don’t think I could have been clearer about this. It is a progressive strategy to undermine the constitutional framework of dual sovereignty: Washington entices state bureaucracies with federal dollars, but the price tag is that Washington dictates policies that the states must follow and exercises oversight authority it should not have over state officials. Conservatives used to think they were sending Republicans to Washington to fight against this anti-federalism scheme. Led by Jim Jordan, today’s Republicans are instead practitioners of the scheme. And the kicker: They are doing it on behalf of Donald Trump, which will make Republicans even more unappealing to the voters they need to win elections.
Is Alvin Bragg’s prosecution of Trump an unabashedly political abuse of power? Of course it is. And Trump will be able to fight it on those terms in the New York courts – where his very able lawyers have enjoyed successful careers. Nationally, however, the context for Bragg’s partisan theater is Trump’s extramarital affair with a porn star, which he tried to cover up by paying hush money and then doctoring his company books to make the payments look like legal fees. If House Republicans decide that’s the political hill they want to die on, they’ll deserve the blowback they’re in for.
Meantime, Jordan’s purportedly proper legislative purpose may be a thin veneer for his partisan objectives, but that doesn’t mean Bragg and Judge Vyskocil have a legal basis for ignoring it. Bragg will be left to argue – as Trump did when House Democrats subpoenaed him – that Congress is not giving due deference to his weighty, independent responsibilities and that Jordan should narrow his demands. Judge Vyskocil will be left to encourage Jordan and Bragg to be adults and compromise . . . which is exactly what they’d have to do anyway.
Yawn …