Kena Betancur / Getty Images
From the moment it became clear that former President Donald Trump was almost certainly going to be indicted, his Republican allies in Congress have been waging a proxy war on his behalf. Their primary target: Manhattan District Attorney Alvin Bragg, the man who brought forth the charges.
Last month, before the indictment, Reps. Jim Jordan, James Comer and Bryan Steil (chairmen of the House Judiciary, Oversight and Administration committees, respectively) sent a letter to Bragg, accusing him of engaging in an “unprecedented abuse of prosecutorial authority” and demanding the DA hand over all documents related to the case and provide testimony. A few days later, Bragg’s office responded, saying that the committees did not have jurisdiction to request such information. The letters continued back and forth, devolving into essentially a loquacious, bureaucratic round of “nuh-uh!” and “yah-huh!” Meanwhile, Jordan, Comer, Steil and other House Republicans — including Speaker Kevin McCarthy — have spoken out publicly against the case and pledged to hold Bragg accountable for what they view as an abuse of power.
But what exactly can Republicans in the House do to Bragg? Is it within their power to make the demands that they have? Are there other ways they can interfere in the case? I spoke to two former general counsels to the House of Representatives to figure out what’s possible and what the House GOP might do next.
When considering what House committees can or cannot do, it helps to remember what Congress’s job is — most simply, to write and pass bills. That means anything a committee investigates or wants access to has to at least theoretically be in the service of writing or amending the law. That’s the first hurdle the committee heads need to clear. They’ve argued that understanding this case could help inform “legislative action to protect former and/or current Presidents from politically motivated prosecutions by state and local officials,” as well as how federal public safety funds are implemented by local law enforcement agencies (such as district attorneys). But that argument is a bit of a reach, according to Stan Brand, the former chief legal officer for the House, especially considering the breadth of information the committee chairs have requested.
“You have to make it specific, and it has to be related to a valid legislative purpose,” Brand said. “Some of what they’ve alleged, like they’re considering amending the federal officer removal statute, I mean, they don’t really need Alvin Bragg’s internal documents for that.”
And in the last few years, we’ve gotten a clearer picture of what a House committee can and cannot demand. When Trump was in office, Democrats in the House regularly requested a broad range of documents while investigating the president. Some of those requests were challenged in court and led to legal decisions that clarified the limits of the House’s power. In particular, a 2020 decision by the Supreme Court and a 2022 decision from the D.C. Court of Appeals limited a House subpoena for information about Trump’s finances to only issues with a direct tie to government activity and gave specific requirements for subpoenas.
And there are other hurdles for the House GOP to clear, including the fact that demanding information about an active criminal investigation is unprecedented. There’s no clear roadmap for how to get access to such information and the House GOP is crossing a line that Congress hadn’t previously dared to traverse, said Charles Tiefer, former deputy general counsel of the House of Representatives.
“As a general counsel for the House of Representatives, I know the history of House investigations like the back of my hand,” Tiefer said. “No House investigation has ever even tried to subpoena an open criminal case of any kind, against anyone. This is absolutely taboo.”
There are also potential issues of jurisdiction here, both Tiefer and Brand pointed out, since this is a state-level case involving a locally elected prosecutor.
That said, Congress still has its typical tools for compelling information or testimony. If Bragg continues to refuse to hand over documents or testify — as all signs and precedent suggest he will — the House committees can issue a subpoena, which they’ve already said they’re considering. But as we saw with congresses before them, enforcing a subpoena is another matter. The House could try to get a court to enforce the subpoena, but both Tiefer and Brand said that would be a tough sell since they’d have to convince the judiciary that Congress should be allowed access to open criminal cases.
It’s also something Republicans in the House are acutely aware of, according to reporting from The New York Times: In private, they’ve been discussing the challenges of enforcing a subpoena and are exploring their options. They could vote to hold Bragg in contempt of Congress, like Democrats in the House did when former Trump advisors refused to testify. But that’s only a referral — it’s up to the Department of Justice whether or not to pursue charges, which it has in some cases, but not always. Lastly, the GOP could potentially pursue a civil lawsuit, Brand said, though it’s not clear if federal courts could weigh in on such a case.
Despite the fact that none of these paths seem likely to lead to what House Republicans say they want — information and testimony about the investigation and indictment — they could pursue them anyway. In an interview on Fox News Sunday, Jordan said “everything is on the table.”
Tiefer said the House GOP likely knows these efforts are futile, but he predicted they will drag out each and every possible step in order to keep the issue in the public eye and set themselves up as crusaders for Trump.
“They maximize the press coverage and the excitement of their supporters by going step by step. In the House, that’s called the dance of the seven veils,” Tiefer said. “This is only the first veil. Wait until you see the seventh veil drop.”
