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Mark Pomerantz (left) during a February 2023 interview on Meet the Press (NBC News/screengrab), Donald Trump (AP Photo/Evan Vucci, File)
The judge in Donald Trump’s New York hush-money trial refused to allow the former president to subpoena a prosecutor who resigned from the case two years ago, criticized the Manhattan DA for dragging his feet, and wrote a book about the investigation.
Acting New York Supreme Court Justice Juan Merchan ruled Friday that Trump cannot broadly subpoena documents from the time that Mark Pomerantz was a special assistant district attorney in the investigation because that would amount to signing off on an “improper fishing expedition.” The ruling set the stage by identifying the issue: whether the documents Trump demanded is “material to the question of guilt or innocence,” or if those demands were “nothing more than a ‘fishing expedition.””
Before even getting to the issue, however, Merchan identified a technical problem with the defense’s efforts.
New York law says that a defendant’s lawyer can issue a subpoena a witness only if the subpoena is indorsed or signed “by the court and provides at least three days for the production of the requested materials.” Merchan said the subpoena was not indorsed.
But even if the subpoena was proper in form, it would still come up short on the substance, Merchan said.
“As an alternate holding, assuming arguendo,” for the sake of argument, that Trump did follow procedure, his four requests each failed to win the day. The first was “impermissibly broad” and sought “privileged work product,” namely, a Pomerantz memo addressing whether key state witness Stormy Daniels “committed ‘extortion’ and/or ‘larceny’” and whether Trump was a “victim of blackmail.”
The judge found those documents “pertain to the legal analysis related to the criminal investigation” and, thus, were off-limits to the defense.
Two more requests, meant to probe Michael Cohen’s statements about his “interactions” with Trump and “any form of bias or animosity toward President Trump,” were deemed “far too broad” and an “improper fishing expedition into general discovery.” Merchan said there’s “no reasonable likelihood” that Trump “would uncover any information that is relevant and material to the proceedings” through these documents.
The last Trump request similarly failed to target “relevant and material” documents.
“The Request seeks ‘[F]or the period from March 23, 2022, through the present … all Documents reflecting communications with DANY personnel regarding the collection of materials for purposes of discovery, disclosure, or litigation” in the case, the judge said. “This appears to be an attempt to obtain DANY’s internal communications about their discovery obligations.”
The ruling ended with the judge siding with Manhattan DA Alvin Bragg’s (D) motion to quash the subpoena “in its entirety.”
When Pomerantz resigned from the case in February 2022, he said there was no doubt in his mind that Trump should face felony charges.
“As you know from our recent conversations and presentations, I believe that Donald Trump is guilty of numerous felony violations of the Penal Law in connection with the preparation and use of his annual Statements of Financial Condition,” his resignation letter said.
“His financial statements were false, and he has a long history of fabricating information relating to his personal finances and lying about his assets to banks, the national media, counterparties, and many others, including the American people. The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes—he did.”
At the time, Bragg responded to the criticism by saying the investigation would continue on. It did, and a 34-count felony indictment followed in April 2023.
Read the order here.
