It’s déjà vu all over again. When Manhattan District Attorney Alvin Bragg earlier this year charged Donald Trump with falsifying New York business records to hide damaging information from voters in the 2016 presidential election, Rep. Jim Jordan, R-Ohio, Trump’s congressional ally, ran interference, attempting to investigate and intimidate prosecutors. Now that Fulton County District Attorney Fani Willis has charged the former president with 2020 presidential election interference, she faces similar harassment from Jordan, the chairman of the House Judiciary Committee. As before, Jordan’s move is an abuse of power.
As we explained the last time Jordan attempted to intrude, Congress can’t use its investigative power to engage in law enforcement. Yet once again that is precisely what Jordan is attempting to do by seeking to second-guess and superintend a pending case by a local prosecutor.
The Constitution gives no express power to our national legislature to engage in investigations. But it has been understood since the very first Congress that the legislative body has such implied powers within Article I. The limits of those powers have been emphasized ever since — including by Trump himself.
Willis has every reason to believe any of these sensitive matters could be leaked to Trump or the public.
During his presidency, Trump and his allies, including Jordan, loudly insisted on those limitations. For example, when Congress tried to obtain Trump’s tax and financial records, Jordan proclaimed it “an unprecedented abuse of the committee’s subpoena authority.”
An emboldened Trump fought a legal battle all the way to the Supreme Court in Trump v. Mazars USA — only for the court to rule against him in a 7-2 decision. In the majority opinion, Chief Justice John Roberts noted that the “congressional power to obtain information is ‘broad’ and ‘indispensable.’” But in an important qualification directly applicable to Jordan’s demand to Willis, the court’s majority noted that a congressional information request (in that case a subpoena) is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Interfering with a state prosecution is not such a task.
The court also noted that such requests — when they intrude on an area of unique constitutional significance — must meet three other standards: They must not be overly broad, unsubstantiated by evidence or unduly burdensome on the recipient to comply with.
How do Jordan’s specific demands to Willis stack up under the Mazars ruling? He asks for a broad array of confidential or internal documents and communications that would not normally see the light of day, including information that could reveal strategy, witness information, internal deliberations and contacts with special counsel Jack Smith, other prosecutors and government officials. As if that weren’t enough, Jordan also wants information about the office’s federal funding streams, much of which is likely completely unrelated to the Trump investigation. And given congressional Republicans’ handling of other sensitive documents, Willis has every reason to believe any of these sensitive matters could be leaked to Trump or the public.
If the House asked a federal prosecutor to provide detailed internal information about an open investigation or prosecution, the Justice Department would not comply, citing constitutional separation of powers. There are innumerable examples of such hard nos, most recently the refusal to provide information about the ongoing Hunter Biden investigation. It should not be any different for a local district attorney under principles of constitutional federalism — due regard for the states as co-equal sovereigns. The Supreme Court has repeatedly backed that up by declaring the “fundamental policy against federal interference with state criminal prosecutions.”
Jordan’s Georgia fishing expedition runs afoul of each of the four specific requirements set out by the court in Mazars. First, there is no legitimate congressional purpose here; as the timing makes clear, this letter is an effort by Jordan to support his favored presidential candidate by disrupting a good-faith prosecution on a legitimate legal basis. Although the defense is entitled to extensive discovery —as it should be — neither the defense, Congress, nor the public is entitled to information that might reveal the detailed thoughts and impressions of the lawyers investigating and prosecuting a case.
Second, the request is far broader than necessary for any legitimate legislative purpose. It requests a breathtaking swath of documents containing confidential and sensitive information that has little to do with the business of Congress — and everything to do with providing political cover for Trump, starting with counter programming his arrest.
If it comes to litigation, the courts will see through Jordan’s efforts for the distracting and partisan political theatrics they are.
Third, rather than being supported by “detailed and substantial” evidence, it relies primarily on unsubstantiated conclusions from dubious sources. For example, Jordan draws a nefarious inference from the fact that “the Fulton County Superior Court’s Clerk publicly released a list of criminal charges against President Trump reportedly hours before the vote of the grand jury.” But as one of us immediately recognized and wrote that day, and as the clerk has since confirmed, this was an innocent mistake. It came as a result of testing the electronic filing system to make sure it could withstand the onslaught that lay ahead in connection with this large case. These kinds of mistakes happen all the time. It just so happens that this one occurred in an exceptionally high-profile matter.
Fourth, it is entirely unclear what legislative action Congress could take in relation to the evidence Jordan seeks, other than to impede the Georgia prosecution. That would, among other things, run afoul of the 10th Amendment, which reserves such powers to the states. The Fulton County and Georgia legislative bodies have oversight over Willis, not Congress. Jordan’s demands right now exist only in a letter and not yet in a subpoena. But given these infirmities, Willis may legitimately hold firm and force the House to subpoena and sue to enforce it, just as Bragg did in New York. Courts will not enforce such subpoenas if they would interfere with a state-level criminal prosecution, as is the situation here. (Although a federal district judge initially ruled against Bragg in blocking a subpoena of a former special assistant district attorney, the 2nd Circuit stayed that decision pending appeal. The case was resolved when the parties came to an agreement.) If the Fani Willis request was the first of Jordan’s misfires, he might be entitled to more benefit of the doubt. But his shenanigans here come on top of a litany of previous dubious deeds and misuse of his office over the years that call into question his fitness for the office he holds. Perhaps most notably, Jordan himself refused to cooperate with the Jan. 6 House Select Committee’s investigations despite having critically important information, including his contacts with Trump about the events of that terrible day. Ironically, Jordan suggested that the request to question him was “far outside the bounds of any legitimate inquiry, violates core constitutional principles and would serve to further erode legislative norms.” Willis should call Jordan’s bluff and remind him of those words here— and that as the Supreme Court has put it, “the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” If it comes to litigation, the courts will see through Jordan’s efforts for the distracting and partisan political theatrics they are. The careful balance of power between the states and the federal government — although long debated ever since our nation’s founding and in the decades following — is now well-defined in all but the most extreme circumstances. This is not one.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Fred Wertheimer
Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen U.S. democracy and empower citizens in the political process.
Josh Stanton
Josh Stanton is Counsel at Perry Law. He previously served as co-director of the Criminal Practice Clinic at Vanderbilt Law and as a public defender in Memphis, Tennessee. 
