IN-DEPTH: Why a New York Judge Is Siding With Jim Jordan in Alvin Bragg Lawsuit
By publishing a book about the investigation of former President Donald Trump, an ex-prosecutor created a predicament for himself—and for the man pressing the historic criminal case against Trump, District Attorney (DA) Alvin Bragg.
A New York federal judge repeatedly cites the book written by Mark Pomerantz, who formerly worked on a probe into Trump’s finances in the Manhattan DA’s office, when she ruled that Pomerantz should be compelled to answer a congressional inquiry into Trump’s prosecution.
U.S. District Judge Mary Kay Vyskocil wrote that Bragg appears unlikely to succeed “on the merits” of his arguments against Pomerantz’s subpoena. At Bragg’s request, an appeals court has put the subpoena on hold temporarily.
In her April 19 decision, Vyskocil listed 18 points from Pomerantz’s book, examples of publicly disclosed information that most often would remain under wraps while a case is pending. Thus, Pomerantz has already revealed information of the type that Rep. Jim Jordan (R-Ohio) and his House Judiciary Committee want to explore, the judge said.
Pomerantz’s Predicament
Vyskocil concluded that the House Judiciary Committee has a “valid legislative purpose” for questioning Pomerantz, despite protestations from both Pomerantz and Bragg.
Pomerantz complained that the subpoena will put him in an “untenable position,” forcing him to choose between ethical and legal consequences.
But the judge said, “Pomerantz is in this situation because he decided to inject himself in the public debate” when he authored People vs. Donald Trump: An Inside Account.
The tell-all book was released in February, a year after Pomerantz left the Manhattan DA’s office in disgust over Bragg’s decision not to pursue a Trump indictment then.
From 2021 to 2022, Pomerantz had worked pro bono—without payment—as a special assistant DA investigating the Trump case. Most of that work was done under Bragg’s predecessor, Cyrus Vance Jr.; Pomerantz left in February 2022, a month after Bragg took office.
Since then, Bragg said his office developed more information that made the case against Trump ripe for prosecution.
‘Political Theater’
Critics have raised concerns the move is political, coming just months after Trump declared he was running to become the Republican Party’s nominee for the 2024 presidential election.
In his attempt to block Pomerantz’s subpoena, Bragg argued that subjecting Pomerantz to the congressional inquiry would reveal information that should be confidential.
“The court rejects the premise that the committee’s investigation will interfere” with Bragg’s case against Trump, Vyskocil wrote, noting Pomerantz’s status as “a private citizen and public commentator” and is no longer in his role as a special prosecutor.
The judge wrote, “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.”
In further objecting to the subpoena, Bragg argued that there was no other case in which Congress attempted to subpoena a state prosecutor to “extract information about an ongoing state prosecution.” However, the judge pointed out, “There also is no prior case in which a former President of the United States has been criminally charged in a state trial court.”
As a result, it appears that “both parties swim in untested waters,” Vyskocil wrote.
The judge said she was “unmoved” by Bragg’s expressed concern of “injecting partisan passions into a forum where they do not belong.”
By fighting the Pomerantz subpoena, “Bragg is engaging in precisely the type of political theater he claims to fear,” she said.
Judge Cites Book
She said Pomerantz’s observations about the Trump case included: The central facts of the case “did not amount to much in legal terms.”
Other sections of the book note that creating false business records is a misdemeanor and that no felony crime appeared to be “in play,” the judge said. Pomerantz’s book says no New York court had ever tested a case that elevated a misdemeanor to a felony by alleging that the misdemeanor was committed to cover up a federal crime.
Yet Trump was indeed charged with 34 felony counts of falsification of business records. The former president has pleaded not guilty.
He is accused of covering up an election-influencing “hush-money payment” to an adult film actress. Stormy Daniels, whose real name is Stephanie Clifford, had agreed to keep quiet about her allegations of a 2006 affair with Trump after his lawyer, Michael Cohen, paid her $130,000 just before the November 2016 election.
Vyskocil said Pomerantz’s book declares: “Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.”
But, under Bragg’s theory of the case, Trump committed crimes by concealing his alleged “reimbursements” of Cohen’s payment, which was an “illegal campaign contribution,” according to a statement of facts Bragg filed.
Payments Legal?
A former head of the Federal Election Commission (FEC) recently told The Epoch Times that he believes it would be illegal for Trump to have used campaign funds for the Clifford payment.
Candidates are barred from using campaign funds for any expense that benefits them personally and politically; the Clifford payment arguably falls into that category, Bradley Smith, former FEC chair, said.
In February 2017, the month after Trump became president, he wrote the first in a series of monthly checks to Cohen. Writing each of those checks, along with their corresponding invoices and ledger entries, is alleged to be a criminal act in Trump’s indictment.
Pomerantz raised concerns about Trump being accused of election-related offenses after his inauguration, Vyskocil said, and he revealed that prosecutors harbored “credibility” concerns about basing much of their case on Cohen, who had admitted to lying to Congress.
Further, she said Pomerantz opined that prosecutors would be running “a big risk” that such a case against Trump would be dismissed before it reached a jury.
In his book, Pomerantz conceded that the Trump case belonged under the purview of the U.S. Department of Justice, not the New York DA; Pomerantz also said federal prosecutors wouldn’t have had to “torture” or “massage” statutory language to score an indictment of Trump.
The DOJ declined to prosecute Trump, and the FEC took no action regarding the Cohen-Clifford matter.
‘Public Relations Tirade’
But on March 30, a grand jury indicted Trump; that same day, information leaked into media rep
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