On Thursday, Republican chair of the House Judiciary Committee Jim Jordan released a letter written on March 22 in which he subpoenaed testimony and documents connected to the indictment of Donald Trump. The letter shows that, in addition to trying to force the testimony of Manhattan District Attorney Alvin Bragg, Jordan bypassed Bragg to subpoena testimony from a former special assistant district attorney who left the case in February.
Even more critically, Jordan demands that attorney Mark Pomerantz turn over documents related to the case, including:
All communications within the Manhattan DA’s office.
All communications between that office and the DOJ.
Everything related to how Pomerantz was appointed as special assistant district attorney.
This information would give Jordan and other Republican members of the committee an advance look at the evidence against Trump. It would also provide them with communications that could be used to disparage the process through which the case was developed. All of which makes this a genuinely unprecedented attempt to interfere with a case currently under litigation.
In almost every instance, the House Judiciary Committee, Senate Judiciary Committee, and Justice Department go to extraordinary efforts to avoid even the appearance of interfering with a case before state and local courts. Even in cases where local courts are operating with clear racial prejudice or other misconduct, the usual process is to stand back until the court renders a verdict before making comments or seeking some form of redress.
Jordan just crushed that idea like a crate of eggs being trampled by an elephant.
Not only is he seeking to force Pomerantz to provide the Republican-led committee with all the inside dirt on the investigation into Trump—where it would surely find its way to both Mar-a-Lago and Fox News—he’s also seeking to drag Pomerantz into the committee to talk about his role in that investigation.
The reason for that is clear enough. Pomerantz resigned from his position with the Manhattan DA’s office in February, making it very clear he was doing so out of disgust at the reluctance of former District Attorney Cyrus Vance to bring an indictment against Trump. Since that time, Pomerantz has authored a book giving his account of building the case against Trump and his letter of resignation was published by The New York Times. Jordan makes it plain that he intends to use Pomeratz’s appointment and presence as evidence that the entire investigation was prejudicial to Trump from the outset.
Getting a behind the scenes peek at the evidence against Trump would be a huge level of interference. Using selective quotes from communications in the Manhattan DA’s office, or between the DA’s office and the Department of Justice in order to prove some kind of “conspiracy,” would be a huge level of interference. Disparaging an assistant DA involved in the investigation is already a huge level of interference.
But Jordan doesn’t stop there.
The publicly released letter includes a whole raft of language intended to paint the investigation as unfair. That includes accusing Bragg of engaging “in an unprecedented abuse of prosecutorial authority,” “looking for some legal theory on which to bring charges,” and making an indictment “motivated by political calculations.” It also describes Trump as “unfairly disparaged” and “innocent.”
It’s very much worth noting where the case is at this moment. Donald Trump has been indicted, but the first hearing on motions related to that indictment is still months away. Based on the opening discussion during Trump’s arraignment, it’s likely that—assuming the case goes to trial rather than ending with either a plea or a dismissal—that trial would not happen until spring of 2024, a full year from today.
Every potential juror is being blasted with the idea that the case against Trump is unfair, that Trump is innocent, and that the Manhattan DA’s office set out to manufacture a case with no evidence. It’s already going to be impossible to seat a jury pool that can in any sense claim ignorance of the allegations behind this case, but Jordan wants to make sure that all of those jurors walk into the courtroom with the idea that this case is “an abuse.” He’s not doing that from Fox News, on Twitter, or some right-wing radio broadcast. He’s doing that on the stationary of the House Judiciary Committee.
This is what Jordan writes in regard to Pomerantz complaints against the failure to indict Trump back in February.
It now appears that your efforts to shame Bragg have worked as he is reportedly resurrecting a so-called “zombie” case against President Trump using a tenuous and untested legal theory. Even the Washington Post quoted “legal experts” as calling Bragg’s actions “unusual” because “prosecutors have repeatedly examined the long-established details but decided not to pursue charges.” In addition, Bragg’s star witness—Michael Cohen—has a serious credibility problem as a convicted perjurer and serial fabricator with demonstrable prejudice against President Trump. Under these circumstances, there is no scenario in which Cohen could fairly be considered an unbiased and credible witness.
This isn’t a subpoena intended to call in a witness for questioning. It’s a document written for public consumption that in itself is meant to sway opinions and taint the jury pool for a case that is still in its earliest stages. It’s also clearly an effort by the House Judiciary Committee to act as an extension of Donald Trump’s legal team.
In essence, Jordan is seeking to try the DA’s office on a case that hasn’t yet gone to trial. That’s a genuinely extraordinary action … though, fortunately, it's also not one that’s likely to stand up to judicial scrutiny. The Supreme Court has ruled explicitly on Congress’ ability to interfere in legal cases, saying that “The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers” but that the system in the United States included a “structural safeguard” that creates a “high wall” between judiciary and legislative functions. That wall is intended to function all the time, not just as “a remedy to be applied only when specific harm, or risk of specific harm, can be identified.” That ruling came in 1995, and was authored by the ultra-conservative Antonin Scalia.
Jordan’s letter to Pomerantz is a wrecking ball through that high wall, one that almost any court would certainly move to repair. However, it’s unlikely that Jordan ever thought this would work.
Pomerantz will absolutely refuse to comply. He should. The next step will almost certainly be for Jordan to cite Pomerantz for contempt of congress and send a referral over to the DOJ. The DOJ will not act on that referral, because it knows the law. Then Jordan will get to complain that both the Manhattan DA’s office and the Justice Department are aligned against Trump.
Because someone really is making up a case here, only that person is not in New York.
Progressives scored a monumental victory in Wisconsin Tuesday night when Janet Protasiewicz flipped a pivotal seat on the state Supreme Court, and we've got plenty to say about it on this week's episode of The Downballot. Not only are the electoral implications deeply worrisome for Republicans, the court's new liberal majority has the chance to revive democracy in the Badger State by restoring abortion rights and striking down gerrymandered GOP maps. It truly is a new day—and one we've long awaited—in Wisconsin.
We're also delving into the fascinating politics of Alaska with our guest this week, former state Rep. Jonathan Kreiss-Tomkins. Jonathan recounts his unlikely journey to the state House after winning a huge upset while still in college before explaining how Democrats, independents, and even a few Republicans forged a remarkable cross-partisan governing coalition. We also get an on-the-ground view of what Mary Peltola's stunning special election victory last year looked like to Alaska Democrats.