Trump-indicting D.A. Bragg throws in the towel in subpoena fight

Well, dear reader, this looks like the end of the Bragg Subpoena Saga, at least for now.

Previously, we discussed how New York District Attorney Bragg faceplanted in federal court when his team moved for a temporary restraining order, forgetting to attach a copy of the subpoena he was challenging. The whole thing began when the House Judiciary Committee subpoenaed former prosecutor Mark Pomerantz to get an insight into why Bragg changed his mind about prosecuting Trump.

Next, we covered the absolute judicial drubbing Judge Vyskocil gave the Bragg team when they held a hearing to determine if she would stop that subpoena. The one bright spot for Team Bragg was when the Second Circuit granted an ‘administrative stay’—literally a stay for no other purpose than to give the court a chance to decide if any stay is justified. It is not a judgement on the merits and the order explicitly said so.

So, there were some rapid filings before the Second Circuit and an oral argument scheduled on the quick. However, now Bragg has moved to dismiss the appeal.

Bragg caves to Jim Jordanhttps://t.co/fM1FN4Fjup pic.twitter.com/zigbr7GtIv

— Jazz Shaw (@JazzShaw) April 22, 2023

Winning. https://t.co/L5pI2F98KT

— House Judiciary GOP (@JudiciaryGOP) April 22, 2023

Bragg claims that he got the ‘concession’ of Pomerantz being allowed to have an attorney present when he testified. However, in her original opinion Judge Vyskocil noted that ‘the Committee’s procedural rules permit two additional lawyers to accompany Pomerantz to the deposition.’ So, its really hard to see Bragg’s position as anything but face-saving spin.

Indeed, according to Andrew McCarthy in this story at National Review…

.@ManhattanDA has dropped his lawsuit against @Jim_Jordan. | @AndrewCMcCarthy https://t.co/bJs42pZbDG

— National Review (@NRO) April 23, 2023

…even the Second Circuit didn’t seem to buy what Bragg was selling: ‘To the extent one can read anything into terse scheduling orders, the appeals court did not seem to think much of Bragg’s claims, allotting just five minutes of argument per side in Tuesday’s scheduled hearing.’

Mockery aside, this is probably the best Bragg could do. While our previous posts focused on the comedic aspects of the case, Judge Vyskocil’s reasoning was solid. Like it or not, Congress has a great deal of leeway in its power to conduct investigations—and rational people can be disturbed at how much Congress can disrupt a private citizen’s life or invade one’s privacy. And while there might be an argument that Bragg has a right to keep his deliberations related to an ongoing criminal case secret, Pomerantz wrote a tell-all book about the same investigation, so Bragg seemed to waive that privilege.

Now, the National Review tweet says that they are settling the entire case. That’s not entirely clear looking at the dockets. There is presently a joint motion from Bragg and Jordan to dismiss the appeal, but that only means that it goes back to the trial court under Judge Vyskocil when the motion is almost certainly granted. Maybe McCarthy knows something we don’t, but there’s no indication that they are seeking to dismiss the trial court case and it might be difficult to do so, given this passage from Vyskocil’s opinion:

This Court will retain jurisdiction over this dispute and any ancillary claims arising out of the inquiry by the Committee relating to the use of federal funds in a manner that may influence the 2024 presidential election. In other words, Bragg may not file successive proceedings under a different index number if and when the Committee in fact issues another subpoena that he finds objectionable or if there are issues with respect to the Pomerantz deposition

In other words, the court was keeping the case open so that if there were any other disputes, she would preside over them. She might not be eager to reverse that decision.

In any case, now Pomerantz is scheduled to testify on May 12. We shall keep any eye on things and report to you, dear reader, if anything interesting happens at that hearing.

With that, we will leave you with a musical interlude: