Recent years have seen a flurry of congressional investigations, and state prosecutors have also launched high-profile investigations and prosecutions targeting national figures.
Those trends collided this year after a New York state judge unsealed a 34-count indictment against former President Donald Trump, alleging Trump had falsified business records. Within a week, Republicans on the House Judiciary Committee subpoenaed the testimony of a former assistant district attorney, Mark Pomerantz, who had worked on the case. Manhattan District Attorney Alvin Bragg’s office promptly sued to quash the subpoena.
Though the parties settled the case, allowing the committee to question Pomerantz, the feud is far from over. At his deposition, Pomerantz reportedly refused to answer questions, invoking various privileges and his Fifth Amendment right against self-incrimination.
The next phase of the conflict between House Republicans, the district attorney, and Pomerantz is unclear, but it seems inevitable the smoldering feud will break back into flames at some point.
And when it does, the resolution will offer important guidance about what limits, if any, there are on Congress’s power to probe state criminal investigations. It may also set the template for how House Republicans might respond if Fulton County, Ga. District Attorney Fani Willis announces any charging decisions this summer in her investigation into the 2020 election.
N.Y. District Attorney’s Suit
In April, the New York District Attorney sued to enjoin enforcement of the Judiciary Committee subpoena and sought a temporary restraining order, arguing the subpoena exceeded the scope of Congress’s authority to investigate, invaded the sovereignty of New York in violation of federalism principles, and sought information subject to privilege and grand jury secrecy requirements. The proffered legislative bases for the subpoena, the district attorney’s lawsuit asserted, were pretextual.
Meanwhile, the Judiciary Committee argued the subpoena had a valid legislative purpose because the district attorney’s office had used federal money in connection with its investigation of Trump and Trump-related entities, and because the inquiry related to potential legislation. The committee also maintained the lawsuit was precluded by the Constitution’s Speech or Debate Clause.
Noting the breadth of Congress’s authority to investigate, the district court in New York refused to grant the restraining order, concluding that the subpoena served a valid legislative purpose. The district attorney immediately appealed.
While the appeal was pending, the parties settled, paving the way for the committee to question Pomerantz behind closed doors. Though the exact terms of the settlement were confidential, the committee presumably expected Pomerantz would answer many of its questions, which he didn’t.
Pomerantz reportedly justified that refusal by pointing to New York laws that prohibit disclosing grand jury materials or other information about ongoing criminal investigations, along with his Fifth Amendment right against self-incrimination.
With this latest impasse, the committee’s dispute with the district attorney and Pomerantz may spill back into the courts. The committee may seek a court order forcing Pomerantz to answer specific questions—particularly if it believes Pomerantz’s refusal to answer questions violates the committee’s settlement agreement with the district attorney. (Because Pomerantz was a nominal defendant in the DA’s lawsuit, he presumably participated in settlement discussions and is party to any settlement agreement.)
Or the committee might employ more traditional means for enforcing a congressional subpoena, such as holding Pomerantz in contempt or referring his conduct to the Department of Justice for potential prosecution. The committee might also issue new subpoenas seeking testimony from others in the district attorney’s office or subpoena Pomerantz for documents. Any of these paths seems likely to return the dispute to court, triggering many of the same issues raised in the April lawsuit.
How a court resolves that looming dispute could have far-reaching implications. A ruling that Congress has no valid legislative purpose in investigating state-level law enforcement and police activities, or that federalism principles prohibit such an inquiry, would arguably break new legal ground. Although the Constitution largely commits policing and law enforcement to states, Congress often legislates in ways that intersect with states’ law-enforcement power, and congressional investigations have occasionally examined state-level policing.
At the same time, a ruling categorically approving congressional probes into ongoing state criminal proceedings could have equally serious consequences. Prosecutors and witnesses in criminal cases operate on the assumption that, at least before trial, their communications will be confidential. Allowing Congress to access or publish those communications may discourage witnesses from cooperating with prosecutors out of fear that they may become political targets. It may also influence how prosecutors evaluate or charge cases that might be unpopular with the majority party in Congress.
Apart from any court ruling, how House Republicans respond to Pomerantz’s refusal to answer questions will have immediate practical consequences. Fulton County District Attorney Willis has promised to announce any charging decisions this summer. Her office will no doubt watch whether House Republicans move to force Pomerantz to answer questions, or issue additional subpoenas to state prosecutors. Georgia prosecutors may already be taking steps to insulate investigative materials from future congressional inquiries. And House Republicans are likely also using the dispute with the Manhattan District Attorney to fine-tune their strategy ahead of the prospective conflict with Georgia investigators.
The conflict between House Republicans and the Manhattan District Attorney is likely the first in a string of showdowns between Congress and state prosecutors. How that dispute is resolved will influence how both Congress and state prosecutors approach future conflicts, and may even establish important precedent on the limits of congressional investigations generally.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Eric R. Nitz is a partner and Kenneth E. Notter an associate at MoloLamken. They represent companies and individuals in connection with investigations of all types—criminal, congressional, and regulatory.
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