Thread by @lawofruby

When I was working (as a law firm associate) for then-litigator Mary Kay Vyskocil on asbestos-related reinsurance cases, I did not have her on my Bingo card as the arbiter of a major separation of powers dispute about Donald Trump.

But she has issued what could end up becoming a consequential decision, ruling that Mark Pomerantz, a much-feared litigator-turned-volunteer prosecutor, must testify before Congress about the Manhattan DA's investigation of Trump. 2/

Bragg's attempts to quash that subpoena, Vyskocil determines, largely adds up to "a public relations tirade against former President and current presidential candidate Donald Trump." 3/

She further finds that Jordan has articulated valid legislative purposes in issuing his subpoena to Pomerantz, including "the possibility of legislative reforms to insulate current and former presidents from state prosecutions." 4/

That Pomerantz laid confidences bare in his book was a major weakness for Bragg going into today's hearing. Still, Vyskocil's assessment that "Bragg is engaging in precisely the type of political theater he claims to fear" has it backwards. 5/

But for the indictment itself -- a decision made long after Pomerantz left the office -- Jim Jordan would not care about Alvin Bragg or even New York City, much less about the use of federal dollars by the Manhattan DA's office. 6/

But perhaps most offensive is the judge's deciding that Pomerantz himself is well equipped to preserve any privilege because he is so "impressively credentialed." 7/

That Pomerantz had a distinguished career and remains possessed of a sharp legal mind are not in dispute. Whether he -- as a witness -- should also function as a lawyer to police privileges not his own is a different matter altogether. 8/

That's especially problematic because, as Vyskocil notes in a footnote, House Judiciary Committee rules do not permit any governmental lawyers to attend. So Pomerantz can bring his buddy and former partner Ted Wells to D.C., but no one from the D.A.'s office can come in. 9/

It's hard to dispute "Pomerantz is in this situation because he decided to inject himself into the public debate." Still, the Committee's purported purposes here don't seem to meet existing legal tests & the subpoena slashes & burns federalism concerns. 10/

But worst of all? Her comment that Bragg's prosecution of Trump not only
"has the potential to interfere . . . with an upcoming federal election," but also "with the exercise of presidential duties," meaning IF Trump is reelected before Bragg's case can be tried. 11/

For a judge so allergic to hypotheticals, there are a lot of assumptions built into her decisionmaking about events nearly two years away. 12/

Finally, the decision ends with a power grab of sorts: Vyskocil not only retains jurisdiction over this dispute, but also anything "arising out of the inquiry by the Committee relating to the use of federal funds in a manner that may influence the 2024 presidential election." FIN