A trio of powerful GOP committee chairmen has taken things a step further, using their positions to demand that Manhattan District Attorney Alvin Bragg give them documents and communications related to his investigation, which on Tuesday was revealed to center on a 34-count felony indictment of the former president.
These chairmen ― Reps. Jim Jordan (R-Ohio) on the Judiciary Committee, James Comer (R-Ky.) on the Oversight Committee and Bryan Steil (R-Wis.) on the House Administration Committee ― have made thinly veiled threats to subpoena Bragg, and they’re scrutinizing his office’s use of federal dollars, at least indirectly suggesting they’re prepared to cut them off.
Members of Congress certainly have the right to gripe. They’re entitled to peacefully protest, and justified in carrying out congressional oversight when it’s relevant. But there is a constitutional line in here somewhere that prohibits these Republican lawmakers from interfering in or impeding an ongoing state criminal investigation.
With their threats of subpoenas and demands for details on how the district attorney’s office uses federal funds, have these GOP committee chairmen crossed that line? HuffPost reached out to some legal and ethics experts for their takes. The consensus: They’re pretty damn close to crossing that line, if they haven’t already.
“Those House GOP figures who have made [it] their intent to interfere with Bragg’s investigation, and their alliance with the former president — reportedly taking calls from him [Thursday] night — it tiptoes up to the edge of obstruction,” said Norm Eisen, chair of the States United Democracy Center and a senior fellow in governance studies at The Brookings Institution, a nonprofit public policy organization.
Eisen, who served as special counsel to the House Judiciary Committee from 2019 to 2020, including for Trump’s impeachment and trial, predicted that “no court” would enforce a subpoena to force Bragg to talk about his office’s probe.
Eisen related the situation to his time on the Judiciary Committee, when the panel wanted to bring former Attorney General Bill Barr in to talk about then-special counsel Robert Mueller’s investigation into Trump. He refused.
“The notion of having a federal prosecutor come in and talk about an open case is anathema. It’s constitutionally prohibited under principles of separation of powers,” said Eisen, who became increasingly animated as he spoke. “Those concerns are even more strongly implicated when it’s a state prosecutor who is not within the jurisdiction. The House Judiciary Committee has oversight responsibility for Bill Barr. They have none for Alvin Bragg!”
Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at New York University School of Law, said the GOP committee chairs’ actions so far are, at a minimum, inappropriate. She referenced letters that Jordan, Comer and Steil sent to Bragg, in which they demanded documents related to his probe.
“I think there is a strong argument here that these letters have already crossed the line,” said Weiser. “The line you’re looking at, it’s a line between legitimate political discourse and inappropriate political interference. ... They can complain as much as they’d like. But actually trying to obtain the records, confidential information, about a pending criminal case would be inappropriate for any criminal actor and certainly a congressional committee.”
“Even if they haven’t taken the step of using those powers,” she added, “the threat to use those powers inappropriately itself is inappropriate interference.”
Bragg’s office has ripped Republicans trying to meddle in its work. In two separate letters to the GOP committee chairs, Leslie Dubeck, the district attorney’s general counsel, chided them for parroting Trump’s inflammatory rhetoric aimed at delegitimizing the justice system.
“As Committee Chairmen, 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 in a Friday letter. “Instead, you and many of your colleagues have chosen to collaborate with Mr. Trump’s efforts to vilify and denigrate the integrity of elected state prosecutors and trial judges and made unfounded allegations that the Office’s investigation, conducted via an independent grand jury of average citizens serving New York State, is politically motivated.”
“Even if they haven’t taken the step of using those powers, the threat to use those powers inappropriately itself is inappropriate interference.”
The whole situation is unprecedented. A former U.S. president has never been indicted on criminal charges. Congress has never exercised its role in how to respond to something like this. The courts are on the verge of yielding potentially precedential rulings as they navigate laws that haven’t been tested in this manner before.
But even with that concession, the conduct of these House Republican chairmen so far “involves a breathtaking disregard of structural constitutional norms,” said John Greabe, director of the Warren B. Rudman Center for Justice, Leadership & Public Service at the University of New Hampshire Franklin Pierce School of Law.
“The demands for information raise serious separation-of-powers and federalism concerns,” said Greabe. “Moreover, to the extent that the GOP chairs are seeking to engage in law-enforcement conduct against what they characterize as a rogue state prosecutor, they are arguably seeking to exercise executive and not legislative power.”
For all the GOP accusations that the Manhattan district attorney’s investigation is a sham and a political witch hunt, nobody even knew what Trump was being charged with until his Tuesday arraignment in a New York City courtroom.
It turns out the former president is facing 34 felony charges of falsification of business records to hide hundreds of thousands of dollars in hush money payments to an adult film star in the final weeks of the 2016 presidential campaign ― payoffs that could have swayed the outcome of the election.
House Republicans’ rabid defense of Trump, despite not even knowing what he had done or what he was being accused of doing, is just the latest sign of how strong the former president’s hold is on the GOP. Trump may be a twice-impeached former president who incited his followers to storm the U.S. Capitol in an attempt to overturn the results of an election, but he’s still the guy leading in the polls to be their presidential pick in 2024.
If Jordan and the other GOP committee chairmen do decide to subpoena Bragg, he could file suit to have it quashed. He could also simply refuse to comply, which would put it back on the congressional committees to file suit to have Bragg declared in contempt.
“It tiptoes up to the edge of obstruction.”
Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, said he expects any subpoena fight to wind up in the U.S. District Court for the District of Columbia. Legal battles over congressional subpoenas are a fairly recent development, he said, so Bragg could try a number of arguments for why he shouldn’t have to comply.
He could argue that he is immune from a congressional subpoena because he is a state officer, “which probably would not be successful,” said Whittington. He could also argue that he should be afforded the same executive privilege granted to the federal Justice Department when it is conducting an open criminal investigation and resists providing related materials to Congress.
“It is possible that the D.A. might argue that Congress has no legitimate legislative purpose in issuing such a subpoena,” he added. “The Supreme Court in the 1950s said that Congress can only conduct investigations and issue subpoenas when they have a legitimate justification under Article I for doing so. That limitation has not had much teeth, but it was one of the things the Trump administration leaned on when refusing to comply with subpoenas when the Democrats took over the House after the 2018 elections.”
“Possible that the courts might buy into some such argument here, especially when connected with the federalism sensitivities,” Whittington said.
House Republicans wouldn’t be committing a crime by subpoenaing Bragg, even if it had the effect of obstructing justice, said Stephen Schulhofer, the Robert B. McKay professor of law emeritus at New York University School of Law and a scholar of criminal justice.
“A crime requires criminal intent: meaning in this instance, that the actions be done with the PURPOSE of obstructing justice, that this is the goal, rather than some other, potentially legitimate purpose,” Schulhofer said in an email, the emphasis his on certain words. “In this case, the R’s could plausibly argue that their purpose is just to find out whether the prosecution was politically motivated.”
Still, he added: “If they serve a subpoena, it’s almost certainly invalid.”
Jordan, a close ally of Trump, doesn’t seem particularly concerned about what actions he takes to defend the former president as long as he looks like he’s doing it. On Sunday, he randomly vowed to defund the Justice Department and the FBI over their role in investigating Trump and ordering his indictment.
“We control the power of the purse,” the Judiciary chair said on Fox News, “and we’re going to have to look at the appropriation process and limit funds going to some of these agencies.”