Why Jim Jordan and James Comer should face Federal criminal charges for their harassment of Alvin Bragg
(This is a rough draft of this essay that is being posted so members of the NationalZero community may offer their feedback. The final version of this article will not be posted until Tuesday, April 18th)
Manhattan District Attorney Alvin Bragg recently filed a civil suit against Jim Jordan and the House Judiciary Committee in an attempt to enjoin the subpeona issued by Jordan to former Manhattan District Attorney's office prosecutor Mark Pomerantz. In this article I will present the argument that the next logical step after Bragg's Civil Suit is to file a criminal referral to the Department of Justice asking them to investigate Republican House Reps Jim Jordan and James Comer for Conspiracy to Defraud the Government (18 USC § 371) , and Influencing or Injuring an Officer or Juror Generally (18 USC § 1503). This article will focus on how Jordan and Comer's actions relate to the language of those two statutes, and relevant legal precedents that apply to enforcement of those two sections of US law.1 At this point in time, Jordan and Comer are the only two individuals that this author is suggesting should be criminally charged. This article should not be considered as advocating for applying charges to all of the members of the House Judiciary or House Oversight committees. Such an approach would be overly broad, and would be likely to fail as there is abundant reporting to suggest that Jordan and Comer have engaged in their activities secretly, without informing other committee members.
Many of Bragg's statements regarding Jordan and Comer's behavior comes straight from the civil suit that Bragg filed against Jordan and members of the House Judiciary Committee.2 This post is an abbreviated statement of probable cause regarding this matter. A far more comprehensive argument could be made to justify charges against Jordan and Comer. This post will focus on the justification for the conspiracy to defraud charge (18 USC § 371). I will be posting additional arguments on April 22nd of 2023 regarding (18 USC § 1531).
The Constitution says of members of Congress that: "[t]hey shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses..." In this case, filing of charges and arrest would still be permitted against Jordan and Comer as conspiracy to defraud and injuring an officer of the court are both Federal felonies.
Per the ruling in the case Imbler v. Pachtman, prosecutors are immune from legal action when they are acting in their role as public advocate. If Jordan and Comer had a legitimate complaint about Bragg's actions, they would file a lawsuit under 42 USC Section 1983, pointing at a particular action by Bragg which they felt either exceeded the bounds of the public advocate function, or which amounted to a clear example of a conspiracy against the rights of Donald J. Trump. Jordan and Comer have not done that, as there is no legitimate complaint to be made regarding Trump's case. Their attempt to abuse their authority of Congressional committees as part of a coordinated campaign of public harassment violates state sovereignty and the Balance of Powers clause, as Bragg mentions repeatedly in his lawsuit.
The relevant precedent for the defraud charge (18 USC § 371) comes from the case Hammerschmidt v. United States: "The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." The "defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute."3 In this case, the apparent goal of the conspiracy is to impair, obstruct and ultimately defeat any enforcement of the laws against Donald Trump or his organization at both the state and Federal levels. State and Federal law enforcement organizations often cooperate and share information in key investigations. This is due to the fact that States and the Federal government enforce different bodies of law and there are cases where a criminal act may be addressed very clearly and directly under a given state's law, while Federal laws and precedents regarding that criminal act are either minimal or extremely vague. Eliminating the ability of the states to conduct independent investigations of a criminal, even if that criminal is a former President, may force the DOJ into a situation where they are trying to initiate proceedings in matters that Federal law is not capable of addressing adequately. Also, undermining the ability of the States and the Federal government to enforce laws violates the Balance of Powers clause, as it eliminates one of the most powerful tools that our government is equipped with to offer checks and balances, and prevent the over-reaching of corrupt individuals who manage to win elective office. It is also crucial to note that at the same time that Jim Jordan and James Comer have been trying to undermine Bragg's investigation, there has been rampant slander of Federal law enforcement by GOP Congressional leaders, with calls to "defund the FBI and DOJ". Once again, we see a coordinated pattern of behavior, a conspiracy to undermine law enforcement at the State and Federal Levels. Additionally, Jordan and Comer's actions apparently originated at the behest of Trump's lawyers.4 Alvin Bragg's lawsuit mentions that both Committee Chairs were contacted by Trump lawyer Joe Tacopina, and encouraged to use their committee powers to try to convince Bragg to drop charges. A key first step in prosecution of this matter would be to seek discovery of all communications between Trump's legal team and members of Congress that have participated in attempts to obstruct Bragg's office. The existence of said communication undermines any claim of a legislative purpose on the part of Jordan and Comer, and showing that actions by Republican lawmakers appeared to be a direct result of those communications would be key to proving criminal intent on the part of members of Congress.
Abuse of Congressional investigatory authorities for the purpose of trying to impede the function of law enforcement agencies at the state and Federal level is a very serious crime.
Footnotes
1. In the original draft of this article I had considered arguing in favor of an additional charge for Solicitation to Commit a Crime of Violence (18 USC § 373) but decided to leave that out as I felt it may be harder to convince a jury that the coded language and dog-whistles used in GOP rhetoric were in fact calls to arms. While that seems obvious to political wonks and those who study information warfare, it would be more difficult to convince many average Americans beyond a reasonable doubt.
2. This case may be found on the Courtlistener website: Alvin Bragg v. Jim Jordan, et, al., Case No. 23-cv-3032.
3. Internal citations omitted from quote. https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us
4. Alvin Bragg v. Jim Jordan, ¶ 33.
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