OPINION AND ORDER DENYING TEMPORARY RESTRAINING ORDER The request by Manhattan District Attorney Alvin L. Bragg Jr. for a temporary restraining order, enjoining enforcement of the subpoena issued to Mark F. Pomerantz by the Committee on the Judiciary of the United States House of Representatives, chaired by Congressman Jim Jordan, is DENIED. The subpoena was issued with a “valid legislative purpose” in connection with the “broad” and “indispensable” congressional power to “conduct investigations.” It is not the role of the federal judiciary to dictate what legislation Congress may consider or how it should conduct its deliberations in that connection. Mr. Pomerantz must appear for the congressional deposition. No one is above the law. BACKGROUND On April 6, 2023, the Committee on the Judiciary of the United States House of Representatives (the “Committee”) issued a subpoena, directing Mark F. Pomerantz (“Pomerantz”), a former pro bono employee of the Office of the District Attorney for New York County (“DANY”), to appear on April 20, 2023 “to testify at a deposition touching matters of inquiry committed to [the Committee].” Exhibit 1 (“Ex. 1″) to the Declaration of Theodore J. Boutrous, Jr. (“Boutrous Dec.”) [ECF No. 12-1]. The subpoena does not request that Pomerantz produce any documents. See Ex. 1. The subpoena was accompanied by a letter from the Chairman of the Committee, Jim Jordan (“Jordan”). See Ex. 1. The letter requests Pomerantz’s appearance due to his “unique role as a special assistant district attorney leading the investigation into President Trump’s finances.” Ex. 1 at 2. It further explains that Pomerantz has “already discussed many of the topics relevant to [the Committee's] oversight in a book [that Pomerantz] wrote and published in February 2023, as well as in several public interviews to promote [his] book.”1 Ex. 1 at 2 (citations omitted). Jordan notes that DANY has “acknowledged that it used federal forfeiture funds in its investigations of President Trump,”2 and that the Committee was considering “potential legislative reforms,” such as “broadening the existing statutory right of removal of certain criminal cases from state court to federal court.” Ex. 1 at 2. The book referenced in Jordan’s letter is People vs. Donald Trump: An Inside Account, written by Pomerantz and published in early 2023. See M. Pomerantz, People vs. Donald Trump: An Inside Account (2023) (“Inside Account”). As its subtitle indicates, the book recounts Pomerantz’s insider insights, mental impressions, and his front row seat to the investigation and deliberative process leading up to the DANY case against former President and current presidential candidate Donald Trump. Among Pomerantz’s observations: Within DANY, the case against Trump arising out of payment of so-called “hush money” to Stephanie Clifford was referred to as the “zombie” case. Id. at 200. The facts surrounding the payments “did not amount to much in legal terms. Paying hush money is not a crime under New York State law, even if the payment was made to help an electoral candidate.” Id. at 40. “[C]reating false business records is only a misdemeanor under New York law.” Id. at 40. “[T]here appeared to be no [felony] state crime in play.” Id. at 40-41. “[T]o charge Trump with something other than a misdemeanor, DANY would have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.” Id. at 41. The statutory language (under which Trump was charged) is “ambiguous.” Id. at 40. “[T]here was a big risk that felony charges would be dismissed before a jury could even consider them.” Id. at 41. “[T]he Trump investigation should have been handled by the U.S. Department of Justice, rather than by the Manhattan district attorney’s office.” Id. at 240. “[F]ederal prosecutors would not have to torture or massage [statutory] language to charge Trump with a violation,” as DANY would have to do. Id. at 240. Federal prosecutors previously looked into the Clifford “hush money payment” and did not move forward with the prosecution. Id. at 242 (emphasis added); see also id. at 39. There is a statute of limitations issue with the DANY case against Trump. Id. at 240-41. Numerous DANY prosecutors were skeptical about the prosecution of Trump and were referred to internally at DANY as “conscientious objectors.” Id. at 194. The invoices and requests for payment from Michael Cohen in connection with the Clifford payments, in a supposed effort to “camouflage” reimbursements, were made “throughout 2017 (after Trump’s inauguration as president).” Id. at 39 (emphasis added) (parenthetical in original). The DANY prosecution team discussed “Michael Cohen’s credibility” as being one of “the difficulties in the case.” Id. at 203. At one point, Bragg “commented that he ‘could not see a world’ in which [DANY] would indict Trump and call Michael Cohen as a prosecution witness.” Id. at 227 (emphasis added). While Pomerantz acknowledged Bragg’s right to make prosecutorial decisions, Pomerantz viewed himself as more experienced and qualified than Bragg. Id. at 218-19. Pomerantz makes a point that he was “finishing law school when Alvin was a toddler.” Id. at 208. Pomerantz resigned from his pro bono position at DANY when it became clear to him that President Trump would not be indicted. Id. at 248-51; see also Exhibit C (“Ex. C”) to the Declaration of Todd B. Tatelman (“Tatelman Dec.”) [ECF No. 32-3]. Pomerantz “told the DA that he was responsible for a ‘grave failure of justice’ because he would not authorize Trump’s indictment.” Inside Account at 1. Ultimately in March 2023, Bragg did, of course, indict President Trump, “bring[ing] the ‘zombie’ theory back from the dead once again.” Id. at 209. Jordan and the Committee first tried to acquire information from Pomerantz and DANY voluntarily. See, e.g., Exhibit 2 (“Ex. 2″) to the Boutrous Dec. [ECF No. 12-2]; Exhibit 11 (“Ex. 11″) to the Boutrous Dec. [ECF No. 12-12]; Exhibit 58 (“Ex. 58″) to the Boutrous Dec. [ECF No. 12-61]. While the DANY General Counsel offered to “meet and confer” with the Committee “to understand whether [it] ha[d] any legitimate legislative purpose in the requested materials,” DANY declined to provide information and instructed Pomerantz not to comply with the Committee’s requests. Exhibit 10 (“Ex. 10″) to the Boutrous Dec. at 5 [ECF No. 12-11]; Exhibit 12 (“Ex. 12″) to the Boutrous Dec. [ECF No. 12-13]; see also Exhibit 19 (“Ex. 19″) to the Boutrous Dec. [ECF No. 12-20]. On April 11, 2023, Manhattan District Attorney Alvin L. Bragg, Jr. (“Plaintiff” or “Bragg”) — one of five local district attorneys for the five boroughs in the City of New York — filed a 50-page Complaint in this Court, naming Jordan, the Committee, and Pomerantz as defendants. See Complaint [ECF No. 1] (“Compl.”). Bragg simultaneously filed a motion, brought on by an ex parte proposed order to show cause, seeking a temporary restraining order and a preliminary injunction (1) enjoining Jordan and the Committee from enforcing the subpoena served on Pomerantz and (2) enjoining Pomerantz from complying with the subpoena, see Proposed Order to Show Cause With Emergency Relief [ECF No. 7]; see also Memorandum of Law in Support [ECF No. 8] (“Pl. Mem.”). Plaintiff later filed the Declaration of Theodore J. Boutrous, Jr., accompanied by over 60 exhibits. See Boutrous Dec. The first 35 pages of the Complaint have little to do with the subpoena at issue and are nothing short of a public relations tirade against former President and current presidential candidate Donald Trump. The same is true of the vast majority of the exhibits accompanying the Boutrous Declaration. Of note, the Complaint acknowledges that DANY used federal forfeiture funds in investigating President Trump and/or the Trump Organization. Compl. 78. Moreover, Bragg concedes that DANY was aware that Pomerantz was writing a book about the Trump investigation and asked to review the manuscript pre-publication. Compl. 90. Pomerantz declined. Compl. 90; Pl. Mem. 21-22. At heart, the Complaint simply includes two requests for declaratory and injunctive relief directed at the congressional inquiry. The reality is that, as framed, this action is merely a motion to quash a subpoena dressed up as a lawsuit. The motion for a temporary restraining order was filed without notice to Defendants and before Defendants even were served with the Complaint. See Certificate of Service [ECF No. 17]; Waiver of Service [ECF No. 18]. In this Court, Local Civil Rule 6.1(d) dictates that any party seeking an ex parte order must submit an “affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made.” No such affidavit was submitted here. Accordingly, the Court issued an Order, declining to enter the proposed order to show cause, directing service on Defendants not only of the motion (with all supporting papers), but also of the Complaint by which this case was initiated, setting a briefing schedule to allow Defendants to be heard, and scheduling a hearing for today to address the motion for a temporary restraining order. See Order [ECF No. 13]. Jordan and the Committee filed an opposition brief. See Opposition Brief [ECF No. 27] (“Def. Mem.”). They argue that Bragg cannot establish a likelihood of success on the merits because Jordan and the Committee are immune from suit under the Speech or Debate Clause of Article I of the United States Constitution. Def. Mem. 5-14. Defendants further argue that the subpoena has at least two valid legislative purposes. First, they contend that the Committee is considering the viability of legislation to protect former Presidents and presidential candidates from politically motivated prosecutions by local district attorneys, such as by permitting those cases to be removed to federal court, out of a concern that such prosecutions “could have a profound impact on how Presidents choose to exercise their powers while in office.” Def. Mem. 3. Second, Defendants argue that the Committee is permissibly investigating DANY’s use of federal forfeiture funds in the investigation of President Trump, which could potentially influence the outcome of the 2024 presidential election. Def. Mem. 8-9. Pomerantz filed a “response” to Bragg’s motion. See Pomerantz Response [ECF No. 30] (“Pomerantz Res.”); see also Declaration of Mark F. Pomerantz [ECF No. 31] (“Pomerantz Dec.”). Pomerantz describes himself as a “nominal[]” defendant. Pomerantz Dec. 1. He does not oppose Bragg’s motion and, instead, joins in the request for an injunction. See Pomerantz Dec. 1 (“I have no objection to the relief that the District Attorney has requested. I consent to that relief, and indeed urge this Court to grant it.”).3 It appears that Pomerantz is content to largely allow Bragg to speak for him. See Pomerantz Res. 1 (“These are matters for the District Attorney…to argue.”); id. at 5 (“We defer to the papers filed by the District Attorney on this motion to articulate why the subpoena threatens New York’s sovereign power.”). Indeed, Bragg’s counsel, Theodore J. Boutrous, Jr., filed a waiver of service on behalf of Pomerantz. See Waiver of Service [ECF No. 18]. The day before the scheduled hearing, Bragg filed an eleventh hour reply brief, not authorized by the Court’s Scheduling Order given the compressed time frame in which Plaintiff’s motion was brought on. The reply largely rehashes the same arguments made in the moving brief and, for the first time, addresses the Speech or Debate Clause. See Reply Brief [ECF No. 41-1] (“Reply”). The reply brief was accompanied by a supplemental declaration attaching sixteen largely irrelevant exhibits, consisting of a hodge-podge of social media postings, news articles, television interviews, pleadings from unrelated lawsuits, and a transcript from the arraignment in the Trump prosecution. See Exhibits 60-72 to the Second Boutrous Declaration [ECF Nos. 41-2 to 41-5]. The Court is in receipt of several unsolicited amicus briefs. An assemblage of former members of Congress, former prosecutors, former government attorneys, and academics filed an amicus brief with the consent of Bragg. See Letter Motion to File Amicus Brief [ECF No. 34]; Amicus Brief [ECF No. 37] (“First Amicus”). Amici argue that the Committee lacked authority to issue the subpoena and echo Bragg’s refrain that the subpoena will “interfere with an ongoing criminal prosecution…brought by a state prosecutor.” First Amicus 1. A separate group of former state and federal prosecutors filed another amicus brief, again with the consent of Bragg. See Letter Motion to File Amicus Brief [ECF No. 40] (“Second Amicus”). These amici assert that the subpoena “seriously challenges…the prosecutorial process.” Second Amicus 2.4 Bragg and his two sets of amici attack what they describe as federal interference in his criminal prosecution. Pl. Mem. 1; First Amicus 3; Second Amicus 3. There is no question that New York, a sovereign state in our federal system, has authority to enforce its criminal laws through its local prosecutors. The Court is mindful of potential federalism concerns. However, the Court rejects the premise that the Committee’s investigation will interfere with DANY’s ongoing prosecution. The subpoena of Pomerantz, who was a private citizen and public commentator at the time Bragg indicted Trump, will not prevent or impede the criminal prosecution that is proceeding in New York state court. ANALYSIS I. Bragg Has Sufficiently Alleged Article III Standing A threshold issue in this matter is whether Bragg has standing to maintain this action since the challenged subpoena is not addressed to Bragg or his office. See All. For Env’t Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006) (“[A] district court must generally…establish that it has federal constitutional jurisdiction, including a determination that the plaintiff has Article III standing, before deciding a case on the merits.”). The subpoena was issued to Pomerantz — not to Bragg. See Ex. 1. Pomerantz has not filed suit. Although he is named as a defendant, Pomerantz “asks this Court to grant [Bragg's] motion.” Pomerantz Res. 1. Bragg, as the party invoking federal jurisdiction, bears the burden of establishing standing. See Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The Supreme Court has “established that the ‘irreducible constitutional minimum’ of standing consists of three elements.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. Where a plaintiff seeks to enjoin a subpoena issued to a third party and has “no alternative means to vindicate [his] rights,” a plaintiff satisfies his burden of establishing standing. U.S. Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1260 (D.C. Cir. 1973), rev’d on other grounds, 421 U.S. 491 (1975); see also Trump v. Deutsche Bank AG, 943 F.3d 627, 635 (2d Cir. 2019), rev’d on other grounds sub nom., 140 S. Ct. 2019 (2020) (“[T]here is no dispute that Plaintiffs had standing in the District Court to challenge the lawfulness of the Committees’ subpoenas by seeking injunctive relief against the Banks as custodians of the documents.”). Bragg’s stated interest in the subpoena is his claim that permitting Pomerantz to appear will undermine the pending criminal case against President Trump, intrude on the grand jury proceedings, and violate grand jury secrecy laws, among other things. These assertions are all without merit. Since Pomerantz was not at DANY when the grand jury indicted President Trump (and therefore has no information on that subject), see Pomerantz Res. 2, the only arguably valid interest Bragg has (to the extent it is not waived, see infra Section II.D) is in maintaining the confidentiality of deliberations within the office he now leads. Determining whether Bragg has any “alternative means to vindicate” his rights is made difficult where, as here, the Court cannot predict what questions will be asked — or whether any rights of Bragg will be implicated. In that vein, Defendants contend that Bragg “has no standing whatsoever to stop Pomerantz from appearing before the Committee to answer…questions” that “do not involve purportedly privileged material in any way.” Def. Mem. 18. The Court concludes that Bragg sufficiently alleges standing. Jordan’s letter to Pomerantz references “the New York County District Attorney’s unprecedented prosecutorial conduct” and Pomerantz’s “unique role as a special assistant district attorney.” See Ex. 1 at 2. These areas of inquiry at least arguably implicate Bragg’s interests. Because “general factual allegations of injury resulting from the defendant’s conduct may suffice” at the pleading stage, the Court concludes that Bragg has established Article III standing sufficient to survive this even earlier stage of litigation. Lujan, 504 U.S. at 561; cf. U.S. Servicemen’s Fund, 488 F.2d at 1260; Deutsche Bank, 943 F.3d at 635. II. Bragg Is Not Entitled to a Temporary Restraining Order A. Legal Standard In the Second Circuit, the same legal standard governs the issuance of preliminary injunctions and temporary restraining orders. See, e.g., 3M Co. v. Performance Supply, LLC, 458 F. Supp. 3d 181, 191 (S.D.N.Y. 2020). To obtain either, Bragg must show: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury, (3) the balance of hardships tips in his favor, and (4) that the public interest would not be disserved by the issuance of an injunction. See Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015).5 Like a preliminary injunction, a temporary restraining order is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Where a party seeking a temporary restraining order fails to establish a likelihood of success on the merits, “there is no need to address the other prongs of the analysis.” Oneida Nation of New York v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011). For the reasons outlined below, Bragg has not demonstrated a likelihood of success on the merits. B. The Subpoena Serves a Valid Legislative Purpose and Is Not Ultra Vires or Otherwise Unconstitutional Congressional committees have constitutional authority to conduct investigations and issue subpoenas because “each House has power ‘to secure needed information’ in order to legislate.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting McGrain v. Daugherty, 273 U.S. 135, 161 (1927)); see Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975). This “power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.” McGrain, 273 U.S. at 174 (emphasis added). “The power of the Congress to conduct investigations is inherent in the legislative process.” Watkins v. United States, 354 U.S. 178, 187 (1957). Of course, this power is not limitless. “[T]here is no congressional power to expose for the sake of exposure.” Id. at 200. Nor may Congress issue subpoenas “for the purpose of ‘law enforcement,’” because that power is assigned “to the Executive and the Judiciary.” Mazars, 140 S. Ct. at 2032 (quoting Quinn v. United States, 349 U.S. 155, 161 (1955)). However, the Supreme Court has described the congressional power of inquiry as “broad” and “indispensable.” Watkins, 354 U.S. at 187, 215. Indeed, without its investigative powers, “Congress would be shooting in the dark, unable to legislate ‘wisely or effectively.’” Mazars, 140 S. Ct. at 2031 (quoting McGrain, 273 U.S. at 175). Congress may conduct inquiries “into the administration of existing laws, studies of proposed laws, and [particularly relevant here,] ‘surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.’” Mazars, 140 S. Ct. at 2031 (quoting Watkins, 354 U.S. at 187). Importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Watkins, 354 U.S. at 187. The subpoena must serve a “valid legislative purpose,” Quinn, 349 U.S. at 161, and “concern[] a subject on which ‘legislation could be had,’” Eastland, 421 U.S. at 506 (quoting McGrain, 273 U.S. at 177). The role of a court in evaluating a congressional subpoena is strictly limited to determining only whether the subpoena is “plainly incompetent or irrelevant to any lawful purpose…in the discharge of [the Committee's] duties.” McPhaul v. United States, 364 U.S. 372, 381 (1960) (emphasis added) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943)). Jordan and the Committee have identified several valid legislative purposes underlying the subpoena. See Def. Mem. 15-17. First, they reference the Committee’s interest in investigating the use of federal forfeiture funds in connection with DANY’s investigation of President Trump. See Def. Mem. 8, 17; see also Ex. 1 at 2; Exhibit v. (“Ex. V”) to the Tatelman Dec. [ECF No. 32-22]. There can be no doubt that Congress may permissibly investigate the use of federal funds, particularly where the result of the investigation might prompt Congress to pass legislation changing how such funds are appropriated or may be spent. See Sabri v. United States, 541 U.S. 600, 608 (2004) (“The power to keep a watchful eye on expenditures and on the reliability of those who use public money is bound up with congressional authority to spend in the first place.”); U.S. Const. art. I, §8, cl. 1. DANY has conceded that it used federal forfeiture funds in its investigation of President Trump. See Ex. 19; Compl.
