GOP demands limits on surveillance power from prosecutor in Trump case

WASHINGTON — House Republicans’ demand for information from a local prosecutor in New York on his criminal investigation into former President Donald J. Trump pushes an already growing fight over the scope and limits of Congress’ surveillance powers over a new territory.

Legal battles over congressional oversight authority have been a feature of Mr. Trump’s turbulent presidency. Where court battles over Congressional subpoenas were once rare, they became routine after Democrats won the House in 2019 and Mr Trump vowed to block “all” their requests for information.

Now House Republicans are locked in a standoff with Manhattan District Attorney Alvin L. Bragg. The prosecutor, a Democrat, balked at their request to testify and turn over records of his criminal investigation into a silent 2016 election season payout to a porn star who says she and Mr Trump had an affair extra marital.

A district attorney’s request for information about a potentially impending indictment has crossed a new line. It also portends broader struggles to come if House Republicans also pursue other local and federal prosecutors leading investigations into Mr. Trump, including investigations into his efforts to cling to power after the 2019 election. 2020 and his retention of classified documents after leaving office.

“History is watching the House attempt to intrude into law enforcement like it never has before,” said Charles Tiefer, a longtime former House lawyer who is now a law professor. at the University of Baltimore.

As with requests for information from House Democrats during the Trump years – including seeking testimony from Mr. Trump’s former White House lawyer, Donald F. McGahn II, and records on the finances of Mr. Trump and the administration’s deliberations over census changes – the fight appeared likely to lead to litigation that could set new precedents defining the scope and limits of Congress’ power to compel information.

Last month, a lawyer for Mr. Trump wrote to Rep. Jim Jordan, the Republican from Ohio who chairs the Judiciary Committee, asking for a congressional investigation into the “gross abuse of power” by what he called a “rogue local district attorney”, Mr. Bragg. Then, last weekend, Mr. Trump incorrectly predicted that Mr. Bragg would have him arrested on Tuesday and called on his supporters to protest.

On Monday, Mr. Jordan and two other House committee chairs — including Representative James Comer of Kentucky, chairman of the oversight committee — sent Mr. Bragg a letter asking him to immediately turn over the documents and testify before them. here Thursday. They accused him of “an unprecedented abuse of prosecutorial power”.

Mr. Bragg did not comply. Instead, on Thursday morning, a lawyer in his office returned a letter accusing House Republicans of pursuing “an unprecedented investigation into an ongoing local lawsuit” and laying out numerous arguments as to why they were overstepping the bounds of powers. legitimate congressional oversight.

The heated exchange raised the prospect that if neither side backs down, House Republicans are likely to proceed with Mr. Bragg’s subpoena. He could ignore it, but it’s not clear why he would seek absolute immunity from a request to appear. Alternatively, he could appear but refuse to answer questions he believes are beyond lawmakers’ legitimate jurisdiction.

That would create two options for House Republicans. They could find him in contempt of Congress, and separately they could decide to take legal action against him — essentially asking a court to declare their subpoena lawful and ordering him to comply more fully with it. Mr. Bragg, in turn, would urge the court to quash the subpoena.

Legally, litigation over such a subpoena to a prosecutor would begin with principles similar to those at issue in the Trump-era cases. Each of those fights centered on Supreme Court precedents arguing that Congress has broad power to seek information that might be relevant to writing laws, but that power is not unlimited.

This power, the Supreme Court wrote in a 1957 case, Watkins v. United States, “includes investigations into defects in our social, economic, or political system for the purpose of enabling Congress to remedy them”, but “there is no general authority to expose private matters individuals without justification in terms of the functions of Congress.

In this context, Trump-era cases involving House Democrat subpoenas have shed light on how courts can seek to draw the line of legitimate legislative interest in particularly sensitive issues.

For example, in a long-running case involving a subpoena seeking information about Mr. Trump’s finances held by his former accounting firm, the 2020 Supreme Court and Circuit Court of Appeals rulings District of Columbia in 2022 led to narrowing the scope of the original subpoena by limiting it to government-related financial matters — those that involved Mr. Trump’s tenure or his lease of a federal building as the site of his hotel in Washington.

But the judges allowed the core of that subpoena to be executed, leading to a court-supervised settlement. Mazars, the Trump Organization’s outside accounting firm, began handing files to the committee late last year in batches, including some showing how officials from six foreign governments had paid lavish rates at the hotel of Mr. Trump while seeking to influence his administration. (Mr. Comer halted the inquiry after Republicans took control of the House.)

Following House Republicans’ request to Mr. Bragg, legal experts have struggled to identify any court case centered on a congressional subpoena of a prosecutor for information about an open investigation.

The fact that Mr. Bragg is a district attorney applying state law raises additional questions about federalism and the limits of Congressional jurisdiction over sovereign state governments, the attorney general’s office explained. of the District of Manhattan, Leslie B. Dubeck, in the letter to Congress.

Douglas Letter, who was the House general counsel when Democrats controlled the chamber and oversaw lawsuits to enforce his subpoenas against the Trump administration, said he believed Republicans’ requests for information of the House to Mr. Bragg “seemed to go too far”.

But he also said Ms. Dubeck’s stark assertion that “Congress can have no legitimate legislative duties regarding the oversight of local prosecutors enforcing state law,” was going too far. Therefore, if the dispute escalates to litigation, it will not be easy to resolve.

“Although the facts here do not appear to fit the circumstances of a state or local attorney who abuses his office in a way that violates the U.S. Constitution,” Mr. Letter said, “you can easily imagine the circumstances where it happens, and the 14th Amendment, section 5, says it’s a very proper subject for Congress to legislate on.

Mr. Letter was referring to a post-Civil War constitutional amendment that prohibits any state from denying “any person within its jurisdiction the equal protection of the laws” and explicitly empowers Congress to pass legislation implementing the guarantee civil rights.

The letter from House Republicans, unlike Ms. Dubeck’s, did not cite any legal precedent. But it has raised several issues with Congressional oversight authority, particularly around how federal public safety funds that go to local law enforcement agencies are used, and the sharing of information by the Federal Ministry of Justice with local prosecutors.

Ms. Dubeck acknowledged that Congress had a legitimate basis for asking questions about federal funds and said Mr. Bragg’s office was preparing a letter explaining its use of those funds. But she said the Republicans’ letter did not suggest any way their “unconstitutional demands” for information about the Trump investigation would shed light on the matter.

Politically and procedurally, Mr. Jordan and Mr. Comer appear to be setting the House on a course that could put pressure on Speaker Kevin McCarthy’s slim majority in the chamber, where Republicans representing the moderate districts that Mr. Trump has lost in 2020 might be reluctant to vote on what steps to take to prosecute the prosecutor.

If Mr. McCarthy were to submit a citation for contempt of Congress from Mr. Bragg and it were to pass, such a reprimand would traditionally be associated with a criminal referral to the Justice Department.

However, it seems unlikely that the ministry will press charges for such resistance. The department has itself told Mr. Jordan that it will not provide information about open criminal investigations to Congress – such as its request for internal records on the special counsel’s investigation into Mr. Biden’s handling of documents classified – and argued that the protection of such information is rooted in the constitutional role of the executive.

“The department’s long-standing policy prevents us from confirming or denying the existence of ongoing investigations in response to congressional requests or from providing nonpublic information about our investigations,” said Carlos Uriarte, assistant attorney general at the Legislative Affairs, to Mr. Jordan in a letter in January.

Separately, any decision to take legal action against Mr. Bragg to obtain judicial enforcement of such a subpoena would come with its own complexities. It is unclear whether Mr McCarthy would need a leave vote by the full House to initiate litigation.

New House General Counsel Matthew Berry would file such a case. House rules state that it is subject to the direction of Mr. McCarthy, who in turn is supposed to consult with a group of House leaders called the Bipartisan Legal Advisory Group, which “speaks and articulates the institutional position of the Chamber in all disputes”. issues.”

But the rules do not say whether Mr. McCarthy can unilaterally order Mr. Berry to take legal action. There is little historical precedent for what the rules allow because such prosecutions were rare. In 2019, Nancy Pelosi, then Speaker of the House, introduced a resolution in the House authorizing legal action to enforce subpoenas.

This resolution, however, expired with the last Congress.