You're listening to Bloomberg Law with June Grusso from Bloomberg Radio. Donald Trump was arraigned on a New York Supreme Court indictment for turn by a Manhattan grand jury on thirty four felony counts of falsifying business records in the first degree.
With a typical indictment, the next moves would be by the district attorney and the defendant. But this was anything but typical, and so Republican Representative Jim Jordan and the House Judiciary Committee started their own investigation into the investigation and subpoenaed Mark Pomerantz, a former prosecutor in the Manhattan
DA's office. In a bold move, DA Alvin Bragg sued Jordan and his committee for interfering in his criminal case against former President Donald Trump, calling it a brazen and unconstitutional attack on a local prosecution. But Jordan told Fox News that it was Bragg who interfering.
And now we have Alvin Bragg interfering and obstructing our investigation into election interference. Election interference, and the most important election we have, which is the election of who's going to be President of the United States.
Joining me is Victoria Norris a professor at Georgetown Law School and an expert on Congress and separation of powers. Bragg says that Jordan lacks the authority under the Constitution to oversee state criminal matters.
During the conduct of a criminal investigation, no one really has the power to intervene in that unless you appeal through that system. So Trump can appeal the validity of the indictment. He has to take it up to the New York courts, right, he can't go to Congress, which is a political branch, because Congress can't try cases. They can investigate for the purpose of legislating, and they have very broad power. But Trump's own case, there's just been
a case on this, Mazars versus Trump. The Supreme Court said that Congress cannot investigate for the purposes of proscution, shooting or embarrassing someone or something like that, because they don't have that power. And this came up during McCarthy. The first case is on this when Senator McCarthy was using the congressional process to essentially be saying people as being members of the Communist Party, and the court set
some limits at that point. But basically there are a couple of reasons if you read the fifty page complaint, by the way, it's full of threats against South and Bragg on social media and elsewhere, and it's really kind of disturbing. And you know that's not how our justice system is supposed to work, right. We don't use violent we use the rules well. And the lawsuit is just to try to stop the subpoena of mister Pomerant. Mister
Pomarants have worked for him, Mister palmerinence is known. This is just an aside as a tremendously skilled prosecutor in New York. He was known that even when I, you know, twenty five years ago, was a clerk in the Southern District of New York. And so the food is really just to stop the subpoena. Now Trump did the same thing. So he didn't want to be subpoenaed by Congress, and
so he sued. And what happened was that was litigated in decent run up to the DC Circuit, run up to the Supreme Court, and they decided it in Mazar and they said that the court had not applied the proper standard because when it's a president, he gets more leeway, all right. They've never held that before because no one had ever done that before. Now Bragg is using that same case to say, look, Congress, you're viling those rules. You don't have a proper legislative purpose. And Jordan is
saying he does have a proper legislative purpose. But this suit will now be about whether the subpoena goes forward and is enforced. All that Bragg is asking is for the subpoena to be stayed during the pendency of his criminal prosecution of Trump. So have you ever.
Heard of an instance before where a congressman tried to interfere in a local criminal case.
I don't know of any. I think they'd raised their argument. So let's let me give a recent example of this. So they're all lawyers, right, I mean, these members are lawyers. And one of the things you first know is that a defendant gets the most right but any person in court because they're about to be sent to jail. And the first thing you can't have it be politicized. If you politicize the criminal trial, you end up having a
banana republic. So this is one of these things that is just drummed into you when you learn the criminal law. In criminal procedure, which is the constitutional part of criminal law. Recently, there was talk of the Senator from South Carolina having made a phone call regarding the election to an election
official in Georgia. And there is a case proceeding about claims supposedly asking officials in Georgia to change the vote counts for the presidential election, and the Senator didn't, you know, there was no investigation. Even when he was chair of the Senate Judiciary Committee, Senator Graham didn't hold an investigation. He knows he can't do that. He did try to stop his own testimony by arguing it was privileged. He made the arguments in the case. You see that this
is like collateral to the case. It's from a whole other body that's not supposed to intervene.
Does it make any difference that Pomerant is no longer in Bragg's office and had nothing to do as far as we know with this with the current indictment.
No, for a couple reasons. He's written a book about his participation. I have not read the book. We know he participated in the thought processes for things that were presented to the grand jury and grand juries. Your secret they cannot ask him anything about that on the record, one,
because that's just the rule. Two, this comes down to actually Donald Trump's due process right Oddly, this is why you don't want to open up the criminal prosecution to some third party asking about what's going on inside it.
That you can appeal within that case. But you don't want like the Attorney General of Kansas or the legislature of Alabama to intervene in any pending case during the pendency of the case, because it will interfere with the defendant's due process rights, because it will try the case in another court, or in the press, or in a political body like the Congress. And so it's one of these things that's so basic to a lawyer. It's like,
you've got to be kidding me. You know, this is because of political party wants to use the indictment for its own political advantage, including raising money, and they've already done that. But it's also because I think Bragg wants people to know it's a fifty page You know, you could write a paragraph complaint saying I want to enjoin the subpoena because Congress doesn't have a proper purpose end
of case. But he added incredible detail in the complaint, and there are pictures on social media that appear to threaten mister Bragg with a baseball bat by the former president. There are things like slurs, racial slurs that have been used, and a lot of violent threats against the DA's office in New York. So I think he was wise to do this for a number of reasons, which is, this is a threat to the justice system and the orderly
progress of justice. Ultimately, because it's the defendant's due process right, I think that no court's going to say you can have this testimony now during the pendency of the case. Because there's an easy remedy for Jim Jordan. He can get this Promeranci's testimony after the case is done.
Jordan tweeted, first they indict a president for no crime, then they sue a block congressional oversight. When we ask questions about the federal funds, they say they use to do it, and apparently the District Attorney's office did respond to them about where they used the five thousand dollars in federal funds in the court battle with Trump over access to his tax returns. So is that as far as Jordan can go to talk about federal funds being used.
Yeah, I mean, as far as I know, I don't know any more facts than what you just repeeded. Every state gets money from the federal government for police and prosecutors to aid in that effort, because of course criminals cross state line, all right, So there are backstop The state spends most of the money, you know, the vast majority of the money is the taxes you pay for your state. That's the first place they get criminal justice.
But there is backstop money from the federal government, and that is the claimed the legislative purpose of the investigation. You have to have a valid legislative purpose after this Trump versus Massar's case. And if the purpose is simply to humiliate or to intimidate, it can't go forward. If the purpose is to prosecute, it can't go forward. No one thinks Congress can prosecute people. No one. The way the Constitution says this is it says you can't have
a bill of a changer. No one knows what that means ancient language, but in Mary Old England, the parliament used to send people to the tower because King Henry the fifth would say, go to the tower and We learned when we had our revolutions that we didn't really want parliaments or legislatures to criminalize people because there you would always democracy couldn't survive. This is a much bigger principle because if the legislature can put people in jail,
then they put their political enemies in jail. This is what happens in Banana Republic. Okay. Now the Trump people are saying, well, that's what happening in this case, but there's no evidence that that's true. I mean, we don't know. Maybe they'll they'll find evidence, but let's see what happens when he appeals inside the New York court. That's his
proper avenue of Redress. Congress shouldn't be involved in this, in my view, and I don't think judges will think that they should be involved either.
So they went before a judge who's a Trump appoint d, and she denied Bragg's request for a temporary restraining order prohibiting enforcement of a subpoena to palmerants instead of hearing for April nineteen. Do you think her refusal of the temporary restraining order forecast what she's going to do?
No, no judge would want to rule on something like that very quickly. Just involves a former occupant of the White House. No judge, whether they're federal court or a state court or whatever, wants to be hurried and determining the precise rules here because they also know that the Congress will push back, there'll be appeals, et cetera. Judges don't like to be embarrassed they get the law wrong. Remember that with a woman in Florida who got everything
all wrong with aspective documents in tomor A Lago. Judges really don't like them because they get embarrassed and pressed from then they're embarrassed and from their colleagues and its elite opinion that they care about. So I don't think it says much of anything. You wouldn't decide this case instantaneously because it's unusual people don't do this. As I said, the Alabama legislature is not going to intervene in Alabama
prosecutions and not going to intervene in another jurisdiction. You know, miss is the beast prosecutions. I mean, this is a core power of a state, and most of criminal law resides in the state. The number of people prosecuted by it says it's very minor compared to the number of people prosecuted by the States, and so this is one of the core principles. And this court, which is a
conservative court, believes this. They don't think you should be able to interfere in state criminal law at a general level. And most judges would say, of course, you can't interfere in this particular prosecution if you are not the defendant. If Trump has arguments to make, you can make them all in the case. Right, He doesn't need Jim Jordan, a politician, to do it for him. Due process requires Trump to make those arguments in his case, and it
might be thrown off for all we know. We don't know quite what the argument is on behalf of Bragg because there's a missing piece. So that will be litigated in the New York courts as to whether this indictment is good on the law. So if you get a political person to start making these judgments, it will bias that decision one way or another.
The Republicans on the House Judiciary Committee are holding a field hearing in Manhattan to examine how Bragg's quote pro crime anti victim policies have led to an increase in violent crime and a dangerous community for New York City residents. Is that within their purview.
The House Judiciary Committee can have a field hearing anywhere, so can the Senate Judiciary Committee. They want to have a field hearing, and they can ask about local crime that they want. Now, it so happens that their data is wrong. According to Alvin Bragg, I know I has gone down. Bragg put that in his document as well, is that they should probably go to Miami if they're looking for high crime rates.
For Columbus. A Brag spokesman said that murder rates in New York City are three times lower than the murder rate in Columbus, Ohio. Jordan of course, being from Ohio.
Yeah, so you know, they can have a hearing, and hearings are often about legislation, and sometimes the legislation is controversial, and crime is always an issue that he gets people very worked up. Now. I have worked on various crime issues, and I am here to tell you that people manipulate the data. And you know, people have to judge whether that hearing's really about New York or is it about Alvin Bragg. And they have the power to go to any city. Say, you know, San Francisco apportantly has a
homeless problem. Okay, San Francisco, let's invest in it. They can do that because legitimately they could legislate on homelessness. They legislate on crime all the time, in the sense of new federal crimes or filling in gaps or the way we count crimes is very difficult to complex. You know that is actually a proper hearing. I would defend them from that, even though I would think, you know, in my mind, I bet the pretext here is to say something bad about Alvin Brigg.
I don't think they're making too much of a pretext of it. They say it in their announcement of the hearing, and Jordan did go to law school. They know.
See. That's what makes it worse for me, because they do know. Because this is not rocket science.
Thanks so much, Victoria. That's Professor Victoria Nors of Georgetown Law School. Clarence Thomas's Supreme Court nomination hearings were among the most controversial, as he denied accusations of sexually harassing Anita Hill.
I have been racking my brains and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way.
More than thirty years later, his ethics came to question again when he declined to recuse himself from a case involving the release of White House records concerning January sixth, even after it was learned that his wife, right wing activist Ginny Thomas, lobbied former President Donald Trump's chief of staff to work to overturn the results of the twenty
twenty election. And now Thomas is again in the spotlight after a pro public A report which detailed the Thomas's lavish trips around the world, including private yachts and jets and luxury accommodations for more than two decades, trips funded by billionaire Republican donor Harlan Crowe, including a twenty nineteen island hopping vacation with costs that could have exceeded half a million dollars, along with travel to California's Bohemian Grove
Retreat for Men and Crow's East Texas ranch. Thomas never reported the gifts. Thomas defended himself against allegations that he may have violated the law by noth reporting those vacations, saying he'd been told he didn't have to. In a one paragraph statement, Thomas said he'd sought guidance from colleagues and others in the judiciary early in his tenure as a Supreme Court justice and was quote advised that this sort of personal hospitality from close personal friends who did
not have business before the court was not reportable. Joining me is Stephen Lubett, a judicial ethics expert at Northwestern
University's Pritzker School of Law. So the justices file annual financial disclosures, and Thomas did disclose a twenty fifteen gift from Crow, a bronze bust of abolitionist Frederick Douglass, valued at six four hundred and eighty four dollars, And in twenty nineteen he disclosed five trips that were paid for by someone else, a series of teaching and speaking engagements at US law schools and colleges, but not that nine
day vacation to Indonesia. Does this failure to report the travel violate federal law?
Yeah. The failure to report certain gifts is contrary to the Ethics and Government Act, and its contrary to the regulations adopted by the Judicial Conference following the Ethics and Government Act. It's not a crime, there's no particular penalty for it, but it is contrary to the law.
I know.
The Supreme Court justices aren't subject to the same ethics codes that federal judges are. Are Supreme Court justices subject to that law?
Well? Gift reporting is covered by the Ethics and Government Act, which is a statute passed by Congress, signed by the President, and specifically applicable to the US Supreme Court. Two Chief Justices, Justice John Roberts and before him, Chief Justice Renquists both said that they would not concede that Congress had the right to impose these vironments on the Supreme Court, but they would follow them anyhow.
Justice Thomas said he'd sought guidance from colleagues and others in the judiciary early in his tenure, and he was advised that this sort of personal hospitality from close personal friends who did not have business before the Court was not reportable. Is that in fact true? Is it not reportable? What's the exception here?
Well, Justice Thomas is putting an awful lot of weight on the words this sort of hospitality. When he joined the Court in nineteen ninety one. I don't think anybody imagined that a Justice of the Supreme Court would be shuttled all around the country on a private jet by a wealthy political donor. So I have to question whether, whatever it is, anybody told him it's actlutely applicable to the gifts that he has ultimately accepted.
All the Democrats on the Senate Judiciary Committee have called on Chief Justice John Roberts to investigate these trips. Do you think that the Chief Justice would actually do that?
I will say that the Court has been, I think unfortunately protective of the prerogatives of the individual members. For example, they follow a procedure for disqualification for recusal in which each justice decides it individually for themselves, with no review by the whole Court. I think that's unfortunate. I think the Court should act as a court on ethics issues and not leave things up to individuals. The Constitution establishes one Supreme Court, not nine Supreme Justices.
Can you tell us about some of the legislation that has been pending in Congress to impose an ethics code on the Supreme Court.
The legislation pending in Congress would not impose any particular ethics code on the Supreme Court. It would require the Supreme Court to adoptor code of their own devising. I think that's a very minimal request and quite an appropriate one. If the Justices think there are special provisions that need to be included or omitted from the code, they could just go ahead and do that.
Chief Justice Roberts said in his twenty eleven year end report. The Court has never addressed whether Congress may impose those requirements on the Supreme Court ethics requirements. That is, is there a chance that the Justices might say, no, we're not doing that. I mean, can they say.
That, Well, well, they're the Supreme Court. They can say whatever they want to say. The question is whether they will have sufficient respect for the public to adopt the code when there is overwhelming a public opinion in favor of so.
Explain the reason why it's a good idea for these gifts and trips to be disclosed.
Host it's an issue of transparency. Congress, in a bipartisan statute, determined that it is important for public respect and understanding to know what sort of gifts are being given, not only to the justices of the Supreme Court, but also to senior officials in the executive branch. Everybody complies with it, but the Supreme Court, for reasons of its own has withheld acceptance of it as a requirement. They do, they do, I should say, the Justices of the Supreme Court do
file report in accordance with the ethics and government. Chief Justice Roberts just said that it is discretionary. They don't have to do it, but they all do it.
Thanks for being on the show. That's Stephen Lubett, a professor at Northwestern University's Printzker School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg