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On Wednesday, Judge Vyskocil denied a request by Manhattan District Attorney Alvin Bragg for a TRO enjoining the enforcement of the subpoena issued to Mark F. Pomerantz by Congressman Jim Jordan in his role as Chair of the House Committee on the Judiciary. We previously covered DA Bragg’s TRO and Complaint here.

Before addressing the merits of the TRO request, Judge Vyskocil faulted DA Bragg for filing the order to show cause for the TRO without notice to Defendants and before serving them with the Complaint. She characterized the first 35 pages of the Complaint as “nothing short of a public relations tirade against former President and current presidential candidate Donald Trump,” before concluding “that this action is merely a motion to quash a subpoena dressed up as a lawsuit.” Continue Reading Judge Vyskocil Denies DA Bragg’s Request to Enjoin Pomerantz’s Testimony, but Second Circuit Grants Stay Pending Appeal

Today, Manhattan DA Alvin Bragg filed a complaint and motion for a TRO and preliminary injunction seeking to quash a subpoena that was served by a Congressional committee on former Special ADA Mark Pomerantz. The subpoena seeks testimony about the New York State criminal prosecution and investigation of former President Trump. Judge Vyskocil declined to issue a TRO, but ordered expedited briefing and set a hearing on the preliminary injunction motion for next week.

The subpoena target, Mr. Pomerantz, participated in the Manhattan DA’s investigation of former President Donald Trump and his businesses. Congressman Jim Jordan served the subpoena in his capacity as Chairman of the House Committee on the Judiciary, and the subpoena seeks a deposition of Mr. Pomerantz on April 20.

DA Bragg’s Complaint argues that Mr. Jordan is seeking “highly sensitive and confidential local prosecutorial information that belongs to the Office of the District Attorney and the People of New York” and that “[b]asic principles of federalism and common sense, as well as binding Supreme Court precedent” forbid such a request from Congress, which has no authority to supervise state criminal prosecutions: Continue Reading Judge Vyskocil Schedules Hearing Next Week in Challenge to Congressional Subpoena for Testimony About Manhattan DA’s Trump Investigation

In an opinion yesterday, Judge Liman granted — albeit with clear reluctance — the government’s motion to dismiss a case brought by former Trump attorney Michael Cohen against various government offices who allegedly retaliated against him for planning to publish a book critical of former President Trump.

Cohen was placed on furlough during his prison sentence, but then suddenly, while negotiating the terms of a transition to home confinement with probation officials, was remanded to prison.

In July 2020, Judge Hellerstein granted Cohen release via an Order stating:

The Court finds that Respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.

In the case before Judge Liman, Cohen was suing for damages, primarily by asserting so-called Bivens claims against the federal government. Judge Liman found that the Supreme Court’s more recent interpretations of Bivens — essentially that no Bivens claim can proceed if by statute there is any other remedy, no matter how small — barred Cohen’s lawsuit.

But Judge Liman noted that the result worked a form of “violence” to Cohen’s constitutional rights:Continue Reading Judge Liman Laments Supreme Court Precedent Barring Damages Remedy For DOJ’s Retaliation Against Michael Cohen for Planned Book About Trump

In an opinion Friday, Judge Kaplan denied a motion by former President Donald Trump to amend his answer to add a counterclaim against the plaintiff, E. Jean Carroll, who accuses Trump of defamation based on his public statements alleging that she fabricated sexual assault allegations against him (see our prior coverage here).

The proposed counterclaim would have sought attorney fees and other relief under New York’s anti-SLAPP law. Judge Kaplan found that the counterclaim was futile, but went further to emphasize that the counterclaim was part of a larger pattern of stalling, including: evading service; pursuing  “frivolous motions practice”; seeking a stay in favor of another case, even though Trump previously argued the other case was unrelated; and, finally, attempting to have the Attorney General intervene.

Judge Kaplan found these tactics to be improper:
Continue Reading Judge Kaplan Harshly Criticizes Donald Trump’s Delay Tactics in Defamation Case, Refuses Proposed Counterclaim Amendment

Last week, the Second Circuit affirmed Judge Schofield’s decision last year to to deny the motion by Donald Trump, the Trump Corporation, and other Trump family members to compel arbitration of claims related to the multi-level marketing scheme ACN (see our previous coverage here).  Defendants argued that, because the plaintiffs had agreed to arbitrate any claims they might have against ACN, the same arbitration clause should force arbitration of any claims against the Trump defendants related to their endorsement of ACN.

The Second Circuit agreed that equitable estoppel did not apply:
Continue Reading Second Circuit Affirms Judge Schofield’s Denial of Motion to Compel Arbitration for Trump-Related Multi-Level Marketing Scheme Claims

Judge Gardephe last week ruled that the non-disclosure and non-disparagement clauses found in the employment agreements for Donald Trump’s 2020 presidential campaign were void and unenforceable.  The action originally arose when the Trump campaign commenced an arbitration proceeding against a former staffer, claiming that she had breached the non-disclosure and non-disparagement clauses by filing a complaint alleging sex discrimination claims in New York state court.  The present complaint was brought as a putative class action by former employees of the campaign, who sought a declaration that these provisions of the employment agreement were unenforceable.

Judge Gardephe granted the plaintiffs’ motion for summary judgment, and focused on the breadth of the non-disclosure provision as a basis for finding it unenforceable:
Continue Reading Judge Gardephe: Trump Campaign NDAs Are Unenforceable

In an opinion Tuesday, Judge Kaplan denied the Justice Department’s motion to substitute the United States for Donald Trump as the defendant in a defamation suit against the president in his individual capacity. The plaintiff, E. Jean Carroll, published a book excerpt in 2019 alleging that Trump raped her in the mid-1990s. Trump told the press that Carroll made the story up, and Carroll sued him for defamation. The Justice Department intervened, arguing that the lawsuit was really one against the United States because Carroll had sued an “employee” of the United States for actions within the scope of his employment.

Judge Kaplan held that the president is a constitutional officer rather than a government “employee,” and that the allegedly defamatory statements were not made within the scope of his employment because, as the chief executive of the United States government, no one else has the power to control his conduct: “To hold that someone else exercises control over the president would turn the Constitution on its head.” On this point, Judge Kaplan continued:Continue Reading Judge Kaplan Rejects Justice Department’s Attempt to Intervene on Trump’s Behalf in Defamation Suit

In an opinion today, Judge Vyskocil granted Fox News’s motion to dismiss a defamation claim centered on an episode of Tucker Carlson Tonight. In the episode, Carlson was responding to President Trump’s lawyer Michael Cohen having pleaded guilty to campaign finance violations for arranging to pay settlements to two women alleged to have had affairs with Trump. Carlson was critical of media suggestions that Trump should be impeached or held criminally responsible for the payments:

Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion. Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Judge Vyskocil ruled that, in context, this was not a literal accusation of extortion, but intended to frame the debate in the guest commentary segment that followed:
Continue Reading Judge Vyskocil: Tucker Carlson’s “Extortion” Jab Was Hyperbole, Not Defamation

In a 103-page opinion, Judge Marrero rejected President Trump’s latest attempt to block a grand jury subpoena issued to Trump’s accounting firm by Manhattan District Attorney Cyrus Vance. In July, the Supreme Court ruled 7-2 that Trump could not obtain injunctive relief based on an assertion of categorical immunity from criminal process while in office. (See our previous coverage here.) On remand, Trump argued that the subpoena was overbroad and issued in bad faith.

Dismissing the amended complaint, Judge Marrero found that “the filing of the [amended complaint] to assert claims and reargue issues substantially addressed in earlier proceedings would prolong the President’s noncompliance with the grand jury’s demand for the documents in dispute.”
Continue Reading Judge Marrero Upholds Manhattan District Attorney’s Subpoena for Trump Tax Records

The Supreme Court yesterday affirmed the conclusion of both Judge Marrero and the Second Circuit (see our coverage here) that President Trump was not immune from a grand jury subpoena issued by the Manhattan District Attorney. Writing for a 7-2 majority, Chief Justice Roberts concluded that the immunity sought ran “against 200 years of precedent”:
Continue Reading Case Over DA Subpoena to Trump Returns from Supreme Court to Judge Marrero