UPDATE (March 23, 2023 12:40 p.m. E.T.): On Thursday, the Manhattan District Attorney’s Office sent a scathing response to House GOP lawmakers, arguing their request was “an unprecedent inquiry into a pending local prosecution.”
With the unprecedented indictment of a former president likely imminent, we must prepare for another first in our nation’s history — attempted congressional interference with a state prosecution of a former president. Although no charges have yet been filed against Donald Trump, congressional interference has already begun, with GOP Reps. Jim Jordan, Bryan Steil and James Comer sending a letter to the Manhattan district attorney requesting documents and testimony before the so-called weaponization of the federal government subcommittee panel.
Congress cannot lawfully use its investigative power to engage in law enforcement.
Congress cannot lawfully use its investigative power to engage in law enforcement. But we argue that is precisely what these congressmen are attempting by seeking to second-guess and superintend a single specific pending case by a prosecutor. Any move to issue a subpoena demanding Manhattan District Attorney Alvin Bragg appear in Washington should be viewed as meddling that is both brazenly partisan and probably unlawful.
The Constitution itself is silent on the power of Congress 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 bounds of those powers have been challenged ever since — notably by Trump himself.
While Trump was president, House lawmakers fought to access his tax returns, eventually issuing his accounting firm, Mazars, with a subpoena. Trump intervened and the ensuring legal battle culminated in Trump v. Mazars USA, LLP. The Supreme Court noted that the “congressional power to obtain information is ‘broad’ and ‘indispensable.’” But it also noted that the power has limitations, noting, for example, that “a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.’” The court also noted subpoenas should not be overly broad, unsubstantiated by evidence, or unduly burdensome to enforce.
If those requirements and limitations exist for congressional subpoenas that threaten the balance between the branches of government, then surely they apply with equal measure to subpoenas that threaten the balance of power between the federal government and the states. Indeed, the Supreme Court has explained that the federalism enshrined in the Constitution anticipates that “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.” According to the court, this translates to “fundamental policy against federal interference with state criminal prosecutions.”
Assuming that Bragg refuses to comply with the House subcommittee letter, and that the congressmen convert the letter into a subpoena, any such subpoena should be unenforceable. The letter itself lists three asserted legislative purposes: “congressional scrutiny about how public safety funds appropriated by Congress are implemented by local law-enforcement agencies”; “oversight to inform potential legislative reforms about the delineation of prosecutorial authority between federal and local officials”; and consideration of “legislative reforms to the authorities of special counsels and their relationships with other prosecuting entities.” Ostensibly in furtherance of those asserted goals, the letter seeks a broad array of confidential internal documents and communications, including those with the Department of Justice.
A subpoena violating that norm would disrupt the basic elements of our adversarial system of justice.
As lawyers whose experience includes decades prosecuting or defending criminal cases, we can say that compliance with such a subpoena would kneecap the Manhattan district attorney. Although the defense is entitled to extensive discovery — as they should be — neither the defense nor the public is entitled to the detailed thoughts and impressions of the lawyers investigating and prosecuting a case. A subpoena violating that norm would disrupt the basic elements of our adversarial system of justice.
Moreover, such a subpoena would run afoul of each of the requirements set out by the Mazars Supreme Court case. The asserted legislative purposes are plainly insufficient given the “fundamental policy against federal interference with state criminal prosecutions.” The request is far broader than necessary for any legitimate legislative purpose, as it requests a breathtaking swath of documents containing confidential and sensitive information. Rather than being supported by “detailed and substantial” evidence, it relies primarily on questionable conclusions from dubious sources. And compliance with the request would put a substantial burden on DA Bragg’s ability to pursue a good-faith prosecution with a legitimate legal basis. If the House instead was to seek a federal prosecutor to appear before it and provide detailed testimony about a possible future indictment or pending case, the Department of Justice would never comply. It should not be different for a local district attorney. To be clear, the House subcommittee request right now is not a subpoena. But the DA should hold firm and dare the House to subpoena and sue to enforce it. Courts cannot enforce such subpoenas if they would interfere with a state-level criminal prosecution, as is the situation here. And we have hope that the courts will see through these congressmen’s efforts for the distracting theatrics they are. The careful balance of power between the states and the federal government — although long-debated at our nation’s founding and in the decades following — is now well-defined in all but the most extreme circumstances. This is not one. No matter what happens in the House, however, Bragg needs to prepare for an onslaught of attempted interference. The Jordan letter was just an opening salvo, as were Trump’s recent calls for “protests” that are reminiscent of his tweets preceding the violence of Jan. 6. Fortunately, the results have so far been anemic — just like the House’s baseless demands to Bragg. And he should hold firm and proceed with his charges, come what may.
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. 
