Bragg's effort to stop Congress from probing Trump case collides with Pentagon Papers precedent

The dramatic tit-for-tat between Alvin Bragg and Jim Jordan escalated Tuesday when the Manhattan District Attorney sued the House Judiciary Committee chairman, claiming Congress had no business investigating the New York State indictment of Donald Trump. But a modest expenditure of federally regulated funds by Bragg's office may complicate his efforts to keep lawmakers from nosing around, thanks to court rulings that date to the 1970s Pentagon Papers leak.

The legal rub for Bragg is that his office has already acknowledged it spent $5,000 seized from criminals under the federal asset forfeiture program to pursue the criminal investigations against Trump, his company and his former CFO and wage court fights over subpoena compliance.

"Our review of the Office's records reflect that, of the federal forfeiture money that the Office helped collect, approximately $5,000 was spent on expenses incurred relating to the investigation of Donald J. Trump or the Trump Organization," Bragg wrote Jordan in a terse letter dated March 31.

"These expenses were incurred between October 2019 and August 2021," the letter added. "Most of those costs are attributed to the Supreme Court case, Trump v. Vance — subpoena-related litigation in which the DA's Office prevailed and which led to the indictment and conviction of Trump Organization CFO Allen Weisselberg and two Trump organizations."

You can read Bragg's letter here:

Bragg stated no other federal funds from grant programs were used to pursue Trump. But that small amount could have lion-sized impact on the courts as they consider Bragg's 50-page lawsuit asking a federal judge to preclude  Jordan from interviewing current or past members of his prosecution team or subpoenaing documents related to the criminal pursuit of the 45th president.

"When it comes to oversight investigation, the principle of legitimate legislative purpose is supreme," said Jason Foster, the former chief investigative counsel for the Senate Judiciary Committee and now head of the Empower Oversight whistleblower center. "You heard this phrase during the Jan. 6 probe. You heard Liz Cheney saying it all the time: Our legislative purpose is this or that because Congress can investigate anything if it has a legitimate legislative purpose."

That purpose can be to inform future legislation or to oversee how federal money has been spent.

Foster and others said the power of the purse argument was so powerful that the U.S. Supreme Court even upheld late Alaska Sen. Mike Gravel's right to publish highly classified portions of the Pentagon Papers laying out U.S. military failures in the Vietnam War as part of his work on infrastructure projects and to keep his legislative aides from having to testify before a federal grand jury investigating the leak.

Court records show Gravel argued he could put the secret documents into the record as chairman of a Senate subcommittee on public works because "the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam, and that therefore the development and conduct of the war is properly within the concern of his subcommittee."

A federal judge originally disagreed, but the Supreme Court concluded in Gravel vs. United States that a member of Congress had a right under the Constitution's Speech and Debate clause to inform his constituents about fiscal and security policy unimpeded by the executive branch.

"The dialogue between Congress and people has been recognized, from the days of our founding, as one of the necessary elements of a representative system," the justices' majority opinion declared. "We should not retreat from that view merely because, in the course of that dialogue, information may be revealed that is embarrassing to the other branches of government or violates their notions of necessary secrecy."

Mike Davis, head of the Article III Project and a former Senate Judiciary Committee counsel who vetted Supreme Court and federal judiciary nominees, said he believes Jordan should not be deterred by Bragg's lawsuit one bit and should expand the probe to look at the New York prosecutor's frequent decisions to downgrade felony violent crimes to misdemeanors while pursuing 34 felony charges against Trump.

"Bragg is endangering New Yorkers by diverting federal funds from real crimes — like carjackings, robberies, assaults, rapes, and murders — to interfere in a presidential election," Davis said. "Congress has a duty, under Section 5 of the 14th Amendment and its oversight of the federal purse, to investigate."

Rep. Ralph Norman (R-S.C.) told the "Just the News, No Noise" television show Tuesday night he believes Jordan will prevail in court and that Bragg's suit must be viewed in the larger picture of weaponizing law enforcement from the federal level on down.

"It's a travesty what this administration has done to weaponize every agency of government," Norman said. "And Alvin Bragged just represents that. He's made a lifetime goal of going after President Trump. He announced that early on when he took office. And no, I don't think he's got a chance.

"It doesn't surprise me that he's doing this. The Democrats always take the when in doubt, sue [approach]. Take them to court, make them spend money. But this is old hat. Jordan is good at what he does, and I don't think it'll have any impact. I know it won't have any impact on Jim Jordan going after and doing what's right for the American people. It's Alvin Bragg that needs to worry about what he's doing."

Jordan has stated publicly he has several legitimate legislative reasons for pursuing a probe of Bragg's office, including the drafting of legislation to preclude local and state prosecutors from weaponizing investigations against sitting or former presidents.

Foster said any reason from spending issues to prospective legislation meets the test consistently held by the courts, including through the Jan. 6 probe when Congress was allowed to investigate the riot even as hundreds of federal prosecutions were pending in the courts.

"There are a good many hooks for Jordan," he said. "You don't need just a nexus to money. Congress has robust oversight authority."

Fox News legal analyst and best-selling author Greg Jarrett agreed.

"Bragg's lawsuit is without merit because Congress has broad oversight authority derived from its legislative vesting powers in Article 1 of the Constitution," Jarrett said. "The Supreme Court has repeatedly reinforced this right and duty when it involves federal matters.

"In this case, there are three specific reasons why the House Judiciary Committee is justified in issuing subpoenas and compelling testimony. By pursuing charges against Trump based on federal campaign finance, Bragg (a local prosecutor) is usurping a federal power. There is also substantial evidence that his indictment is politically motivated (Pomerantz's book makes this clear) and he is therefore attempting to interfere in a federal election.  Finally, the district attorney admitted that federal taxpayer funds were used to further his case."

Some legal experts like Harvard law professor emeritus Alan Dershowitz said the Trump indictment even triggers Congress' interest in global relations, since prominent leaders from El Salvador to Mexico have stated publicly Bragg's pursuit of a political enemy is a setback to democracy worldwide.

"Bragg's unwarranted prosecution of the candidate running against the incumbent president raises important foreign policy issues," Dershowitz told Just the News. "See the tweet by the president of El Salvador."