Former GOP Members Of Congress And Former Prosecutors, Government Attorneys, And Legal Experts File Amicus Brief Supporting Manhattan DA Bragg’s Motion For Injunctive Relief To Quash Subpoena In Case Brought Against Rep. Jim Jordan

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Jordan’s incursion into the functioning of the Manhattan DA’s office is “egregious and unconstitutional overreach.”
Twenty-one individuals, including four Republican former Members of Congress; Cyrus Vance Jr., the former Manhattan District Attorney; and former prosecutors, government attorneys, and other legal experts today filed an amicus brief supporting Manhattan DA Alvin Bragg Jr.’s motion for injunctive relief to quash a subpoena in the case he filed against House Judiciary Chair Rep. Jim Jordan (R-OH) in the U.S. District Court in the Southern District of New York last week.“Our federal system of government can, from time to time, create truly difficult questions about the balance of power between the states and the federal government. This case is not one,” according to the brief. “Congress has no authority to interfere with an ongoing criminal prosecution, particularly one brought by a state prosecutor. That calculus does not change just because the defendant whom a grand jury indicted happens to be a former President of the United States. Nor does it change when Members of Congress attempt to characterize their unlawful interference as ‘oversight.’”

Bragg’s lawsuit alleges that efforts by Jordan are “an unconstitutional attempt to undermine” Bragg’s prosecution of former President Donald Trump in the hush money case.

“[L]ongstanding norms rooted in the Constitution have prevented Congress from intruding upon criminal investigations, and even more certainly from interference with active prosecutions,” according to the brief. “That has most commonly been seen in the case of federal prosecutions, based upon separation of powers principles. As to state prosecutions, that limitation on congressional action is equally strong — or stronger — given our system of federalism, the distribution of power between the federal government and the states.”

The brief continues:  “Amici are not passing judgment on the merits of the underlying case. But they are united in expressing that this congressional incursion into the functioning of the Manhattan District Attorney’s office is an egregious and unconstitutional overreach that should not be countenanced by this Court.”

The Supreme Court and other precedent make clear, according to the brief, that Congress lacks the power to issue the subpoena at issue in this case.

The amici detail their arguments that the subpoena issued by House Judiciary Committee Chair Jordan:

  • Threatens attorney work product privilege;
  • Threatens the law enforcement privilege;
  • Threatens grand jury secrecy; and
  • Threatens the public interest and deliberative process privileges.

“Even as an isolated incident,” the brief concludes, “the attempted congressional interference in this case is an outrageous and unprecedented overreach that should be swiftly rejected. But it appears to be just the beginning of congressional intrusions into active criminal investigations and cases. House Oversight Committee Chairman James R. Comer indicated that additional members of the Manhattan District Attorney’s office are soon to be subpoenaed, pledging that he ‘fully expect[s] to see Alvin Bragg answering questions in front of Congress as soon as we can make it happen.’ […] Those subpoenas are not (yet) before the court. But they highlight the stakes here: a headlong plunge down a slippery slope where Congress may not lawfully set foot.

“Amici strongly urge this Court to find in favor of Plaintiff’s requested interim injunctive relief. To do otherwise would be to allow the unlawful and unprecedented to become the routine, disrupting the balance of power between the states and the federal government.”

The amicus brief was prepared by E. Danya Perry and Joshua Stanton of Perry Guha LLP and Democracy 21 Education Fund President Fred Wertheimer.

Read the full amicus brief online here. A summary of the 21 amici is here.