WASHINGTON — As Alvin Bragg, the Manhattan district attorney, prepared to bring criminal charges against former President Donald Trump, House Republicans rallied to Trump’s side, vowing to use their power in Congress to haul in Bragg and force him to turn over documents and answer questions.
The reality, they have privately acknowledged, is much more complicated.
For weeks, top House Republicans and their lawyers have been grappling with how to move forward in their investigation of Bragg amid legal and institutional concerns about overreach and how to enforce a subpoena in court. The situation is a reminder for the new majority, which has promised aggressive inquiries into the Biden administration, that its gavels do not guarantee easy investigative breakthroughs.
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Led by Rep. Jim Jordan of Ohio, the Judiciary Committee chair, GOP lawmakers have yet to issue a subpoena for Bragg’s testimony, opting instead for exchanging a series of strongly worded letters.
The Republicans are more likely to first consider issuing subpoenas to two former Manhattan prosecutors, Carey Dunne and Mark Pomerantz, according to people familiar with the internal discussions who described them on the condition of anonymity. Dunne and Pomerantz left the district attorney’s office in February 2022 and were critical of Bragg’s initial reluctance to move forward with charges against Trump.
Dunne and Pomerantz have declined to participate in the Judiciary Committee’s investigation, citing instructions from Bragg’s office. In a letter obtained by The New York Times, the district’s attorney’s office told the men “to not provide any information or materials relating to your work” to the panel.
Bragg has taken a slightly different stance. While chastising the Republicans for attempting to interfere in a local prosecution, his office has tacitly acknowledged that Congress has a legitimate oversight role to play in the matter.
Bragg’s general counsel has offered to enter into discussions and provided documents detailing the federal funding the office has received. His office, for instance, informed the congressmen that it used about $5,000 in federal forfeiture money on expenses incurred relating to the investigation of Trump and the Trump Organization.
Speaker Kevin McCarthy, Jordan and Rep. James Comer, R-Ky., the chair of the Oversight Committee, are planning a call this week to discuss what steps to take next in their investigation of Bragg’s prosecution, according to Comer.
“Everything is on the table,” Jordan, who is also leading a panel to scrutinize what Republicans describe as the “weaponization of government,” said Tuesday night on Fox News. “We do want Mr. Bragg to answer questions, and we’re looking at how we are going to pursue that.”
Comer pledged, “I fully expect to see Alvin Bragg answering questions in front of Congress as soon as we can make it happen,” adding, “We’re not going to back down.”
The congressmen have demanded that Bragg provide them with communications, documents and testimony about his inquiry into Trump, but committee lawyers know that actually getting Bragg to testify is not as simple as firing off a subpoena. Any such effort is likely to get bogged down in legal fights for longer than a two-year congressional term, said Christopher J. Armstrong, who was the chief oversight counsel for Republicans on the Senate Finance Committee.
“A subpoena is not a magic wand,” Armstrong said. “It’s the start of a process, and more often than not, the most powerful subpoena is the one that is threatened but never issued. More often than not, the legal process to enforce a subpoena takes longer than the political relevance of the issue that makes it worthwhile in the first place.”
Most legal experts agree that Congress has wide-ranging investigatory powers and that Republicans are well within their rights to ask questions about the use of federal dollars. The 14th Amendment also gives Congress authority to investigate whether states are abusing the rights of their citizens.
But experts also say the lawmakers are limited by the need to prove a legitimate legislative function for any inquiry. The Republicans have attempted to do that by arguing that they are considering legislation to “insulate current and former presidents from such improper state and local prosecutions.”
The Republicans are also researching precedent to strengthen the case for a subpoena of state-level officials, including how the House committee investigating the Jan. 6, 2021, attack on the Capitol scrutinized state officials and how the House Science Committee did so under Rep. Lamar Smith, R-Texas.
Some top House aides have spent months attempting to educate members on how to use their investigative prerogatives. Machalagh Carr, McCarthy’s general counsel; Steve Castor, the general counsel on the Judiciary Committee; and Mark Marin, the staff director on the Oversight Committee, have briefed lawmakers on the need to take multiple steps and attempt negotiations with a witness before resorting to a subpoena. Courts sometimes look less favorably on a subpoena issued without an attempt at negotiation, legal experts say.
Leading Republicans are also trying to avoid accusations of personal hypocrisy in their treatment of Bragg. When the House Jan. 6 committee sought their testimony, McCarthy and Jordan refused but offered to enter into discussions, much as Bragg has done.
While providing some documents to Congress, Bragg’s office has also attempted to shame the Republicans for their efforts to interfere with the investigation into the former president.
The office’s general counsel, Leslie Dubeck, has noted that, before being indicted, Trump had used his social media platform to denigrate Bragg and had threatened “death and destruction” if he was charged.
“You could use the stature of your office to denounce these attacks and urge respect for the fairness of our justice system and for the work of the impartial grand jury,” Dubeck wrote to Jordan, Comer and Rep. Bryan Steil, R-Wis., the chair of the Administration Committee.
Dubeck also noted that many of the documents the men seek are protected by attorney-client privilege or the work product doctrine, or because they are part of an active criminal case.
“As you know, the office has determined your request to be constitutionally infirm on federalism and other grounds, and improperly intrusive into an ongoing criminal investigation,” Dunne wrote to Jordan, referring to Dubeck’s advice.
Stanley M. Brand, who served as House general counsel under Speaker Thomas P. O’Neill Jr., said there was almost no chance the Republicans would ever receive internal communications about the prosecution of Trump or force Bragg to testify about details of an active criminal case.
“My advice to them would be: Avoid the popgun effect of a subpoena that can’t be enforced,” Brand said. “There are no real options for quick enforcement.”
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