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Trump-indicting D.A. Alvin Bragg has a terrible, horrible, no good, very bad day in federal court; Updated

Aaron Walker
Aaron Walker  |  8:54 PM on April 19, 2023

— UPDATE —

A stay has been granted …

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—

Previously, dear reader, we told you about how New York District Attorney Alvin Bragg faceplanted in federal court when seeking an immediate injunction against Jim Jordan without even giving the other side a chance to respond. The whole thing arose from the subpoena of Mark Pomerantz, who used to work for in the district attorney’s office. Judge Mary Kay Vyskocil scheduled a hearing for today where both sides could be heard and …

Get out some popcorn, folks, because it did not go well for Bragg, at all.

First up, we have a report from the hearing itself:

Some highlights:

… Judge Vyskocil interrupted Bragg’s attorney Theodore Boutrous repeatedly throughout the hourlong hearing, accusing him of playing politics.

‘There’s politics going on here on both sides here,’ Vyskocil said. ‘Let’s be honest about that.’

That’s fair.

One of the arguments that the Bragg team made was that Jordan’s subpoena threatened to improperly expose the District Attorney’s office’s inner workings and deliberations—which might arguably be privileged from questioning by the House Judiciary Committee. Except it turns out that Mark Pomerantz kind of wrote a whole tell-all book and did some interviews discussing why he thought Trump should be indicted, which led to this exchange:

In a particularly cutting series of questions, the judge asked Boutrous directly: ‘How does this book, which is chock full of what Mr. Pomerantz calls an ‘insider account,’ how does it not disclose mental impressions, deliberations of the office, the internal workings of the District Attorney’s office, how is there not a waiver [of any potential privilege]?’…

Bragg’s general counsel Leslie Dubeck addressed the waiver question in separate questioning, which was equally incisive.

‘Have you read this book?’ Vyskocil, who had a copy of the tome, asked.

‘Yes,’ Dubeck acknowledged.

‘Does it preserve your confidences?’ the judge needled.

Dubeck acknowledged that Pomerantz did not and said he opened himself to criminal and civil liability. The judge then pointedly asked whether the DA’s office took any actions to block the distribution of the book.

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We’ll be coming back to that issue in a minute but the answer was ‘no.’ And then after the hearing, the judge issued a ruling, denying Bragg’s motion for a preliminary injunction:

And the opinion is a thing to behold. For starters, she discusses Pomerantz’s book in detail, including several observations about the very case Trump was indicted under:

‘Within DANY, the case against Trump arising out of payment of so-called ‘hush money’ to Stephanie Clifford was referred to as the ‘zombie’ case.’

DANY is the acronym used for the NY District Attorney’s Office.

‘The facts surrounding the payments ‘did not amount to much in legal terms. Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.’’

‘[T]here appeared to be no [felony] state crime in play.’

‘The invoices and requests for payment from Michael Cohen in connection with the Clifford payments, in a supposed effort to ‘camouflage’ reimbursements, were made ‘throughout 2017 (after Trump’s inauguration as president).’’

‘The DANY prosecution team discussed ‘Michael Cohen’s credibility’ as being one of ‘the difficulties in the case.’’

‘At one point, Bragg ‘commented that he ‘could not see a world’ in which [DANY] would indict Trump and call Michael Cohen as a prosecution witness.’’

‘[T]o charge Trump with something other than a misdemeanor, DANY would have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.’

‘The statutory language (under which Trump was charged) is ‘ambiguous.’’

‘‘[F]ederal prosecutors would not have to torture or massage [statutory] language to charge Trump with a violation,’ as DANY would have to do.’

Those last three points are significant because the Constitution requires that criminal law be reasonably clear so that people are given reasonable notice about what is and is not a crime ahead of time. This might be grounds for dismissal in a fair hearing.

And this last bit from the book is just painful:

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‘While Pomerantz acknowledged Bragg’s right to make prosecutorial decisions, Pomerantz viewed himself as more experienced and qualified than Bragg. … Pomerantz makes a point that he was ‘finishing law school when Alvin was a toddler.’’

Ouch. In our previous post, we wrote this about the lawsuit: ‘We are surprised [Bragg] didn’t write [the Complaint] in ALL CAPS with lots of exclamation points.’ The judge seemed to agree:

The first 35 pages of the Complaint have little to do with the subpoena at issue and are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump. The same is true of the vast majority of the exhibits accompanying the Boutrous Declaration.

That would be the declaration they forgot to attach last time. Besides failing to attach that declaration and a copy of the subpoena, Judge Vyskocil found another mistake in their previous filing:

In this Court, Local Civil Rule 6.1(d) dictates that any party seeking an ex parte order must submit an ‘affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made.’ No such affidavit was submitted here.

‘Ex parte’ is law Latin meaning roughly “without the other party present.” Normally in court, both sides are supposed to have a chance to be heard, but occasionally there is so much of an emergency that the court can’t wait for the other side to respond. A request for an injunction to stop a deposition about nine days later isn’t one of those kinds of emergencies.

The court also talks about how the defendants were allowed to file a response to the motion for preliminary injunction and how, contrary to the court’s order, Bragg’s team filed a reply to Jordan and the House Judiciary Committee’s opposition:

The day before the scheduled hearing, Bragg filed an eleventh hour reply brief, not authorized by the Court’s Scheduling Order given the compressed time frame in which Plaintiff’s motion was brought on. The reply largely rehashes the same arguments made in the moving brief and, for the first time, addresses the Speech or Debate Clause. … The reply brief was accompanied by a supplemental declaration attaching sixteen largely irrelevant exhibits, consisting of a hodge-podge of social media postings, news articles, television interviews, pleadings from unrelated lawsuits, and a transcript from the arraignment in the Trump prosecution.’

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Honestly, this is just bad practice. They were already filing an unauthorized filing (a questionable idea in the first place). They should have made sure that they didn’t make the judge think they were wasting her time, too. If the exhibits were relevant, they should have made that relevance clear.

The opinion goes on discussing all the legal reasons why the Bragg team was failing to convince her, with occasional biting commentary such as ‘Bragg’s throw-everything-at-the-wall approach to privilege is unpersuasive’ and ‘this Court will not quash a subpoena based solely on Bragg’s seemingly endless string of ‘what ifs.’’

And she came back to the devastating fact that Pomerantz wrote a book about it all, rubbing salt in both Bragg’s and Pomerantz’s wounds:

Pomerantz complains that he is in a ‘legally untenable position’ because he will be forced to make a choice between ‘legal or ethical consequences’ or ‘potential criminal and disciplinary exposure.’ … Pomerantz is in this situation because he decided to inject himself into the public debate by authoring a book that he has described as ‘appropriate and in the public interest.’

Finally, Bragg cannot seriously claim that any information already published in Pomerantz’s book and discussed on prime-time television in front of millions of people is protected from disclosure as attorney work product (or otherwise). … On the record at the hearing on the motion for emergency relief, Bragg’s counsel admitted that Pomerantz’s book did not preserve the confidences of the District Attorney’s Office. While Bragg maintains that Pomerantz’s inappropriate disclosures cannot waive DANY’s privilege, such a claim is belied by DANY’s inaction in response to Pomerantz’s known plan to publish a book about DANY’s investigation into President Trump. If that information ever was protected from disclosure as attorney work product, the protection has been waived by DANY.

Oops.

CB Cotton, a Fox News correspondent captures the text on the docket, which is frankly unusually long:

She also captures footage of Pomerantz leaving the courthouse:

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Of course, there was whining and screeching from the left:

Keep raging.

Literally, nothing pictured constitutes evidence of a conflict of interest.

Cope, Mark.

It even veered into weird anti-Czech bigotry:

And conspiracy theories were spun, because of course:

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And an alleged former coworker wrote a pretty critical thread discussing the decision that starts here, but we won’t be publishing it in full because this post is long enough:

One commenter even apparently has reached the bargaining stage:

But some cheered the ruling:

This tweeter also found an interesting passage in the opinion:

As did Mr. Klasfeld:

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Which also triggered at least one liberal:

And this person veered off topic, but her sentiment is interesting:

Still, the story isn’t over yet. While the hearing went badly for Team Bragg, they can still file for an emergency stay before the notoriously liberal Second Circuit, and they are already making moves to do so:

Technically, that is only a notice of an appeal and Bragg’s team has to file the actual appeal with the Second Circuit. But I’m sure that these consummate professionals will file that appeal quickly and properly …

Oh, right. So maybe not.

Tags: LAW TRUMP

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