G.O.P. Demands on Prosecutor in Trump Case Test Limits of Oversight Power

WASHINGTON — The demand by House Republicans for information from a local prosecutor in New York about his criminal investigation into former President Donald J. Trump is pushing an already escalating fight over the scope and limits of congressional oversight powers into new territory.

Legal battles about the oversight authority of Congress were one of the hallmarks of Mr. Trump’s turbulent presidency. Where court fights over congressional subpoenas had once been rare, they became routine after Democrats won the House in 2019 and Mr. Trump vowed to stonewall “all” of their requests for information.

Now, House Republicans are locked in a standoff with the Manhattan district attorney, Alvin L. Bragg. The prosecutor, a Democrat, balked at their demand that he testify and turn over records from his criminal investigation into a 2016 election season hush money payoff to a porn star who says that she and Mr. Trump had an extramarital affair.

The demand for information from a state prosecutor about a potentially imminent indictment crossed a new line. It also foreshadowed broader struggles to come if House Republicans also go after other local and federal prosecutors leading inquiries into Mr. Trump, including investigations into his efforts to cling to power after the 2020 election and his retention of classified documents after leaving office.

“History is watching as the House tries to break into law enforcement like it has never even tried before,” said Charles Tiefer, a former longtime House lawyer who is now a University of Baltimore law professor.

As with demands by House Democrats for information during the Trump years — including seeking testimony from Mr. Trump’s former White House counsel, Donald F. McGahn II, and records about Mr. Trump’s finances and administration deliberations about changes to the census — the fight appeared likely to lead to litigation that could establish new precedents defining the scope and limits of congressional power to demand information.

Last month, a lawyer for Mr. Trump wrote to Representative Jim Jordan, the Ohio Republican who chairs the Judiciary Committee, urging a congressional investigation into the “egregious abuse of power” by what he called a “rogue local district attorney,” Mr. Bragg. Then, last weekend, Mr. Trump incorrectly predicted that Mr. Bragg would have him arrested on Tuesday and called on his supporters to protest.

On Monday, Mr. Jordan and two other House committee chairmen — including Representative James Comer of Kentucky, the chairman of the Oversight Committee — sent Mr. Bragg a letter demanding that he immediately turn over documents and testify before them by Thursday. They accused him of “an unprecedented abuse of prosecutorial authority.”

Mr. Bragg did not comply. Instead, on Thursday morning, a lawyer for his office sent back a letter accusing the House Republicans of pursuing “an unprecedented inquiry into a pending local prosecution” and laying out extensive arguments for why they were exceeding the limits of legitimate congressional oversight powers.

The sharp exchange raised the prospect that if neither side backs down, House Republicans will likely proceed to subpoena Mr. Bragg. He could ignore it, but it is not clear why he would have a claim to absolute immunity from a demand that he appear. Alternatively, he could appear but decline to answer questions that he says are beyond lawmakers’ legitimate purview.

That would set up two options for House Republicans. They could declare him in contempt of Congress and, separately, they could decide to file a lawsuit against him — essentially asking a court to declare their subpoena legitimate and ordering him to more fully comply with it. Mr. Bragg, in turn, would urge the court to quash the subpoena.

As a matter of legal substance, litigation over such a subpoena to a prosecutor would start with similar principles that were at issue in the Trump-era cases. Each of those fights centered on Supreme Court precedents saying that Congress has broad power to seek information that could be relevant to writing laws, but that authority is not unlimited.

This power, the Supreme Court wrote in a 1957 case, Watkins v. United States, “includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them,” but “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.”

Against that backdrop, the Trump-era cases involving House Democrats’ subpoenas shed light on how courts may seek to draw the line of legitimate legislative interest in particularly sensitive matters.

For example, in a long-running case over a subpoena for information about Mr. Trump’s finances held by his former accounting firm, rulings by the Supreme Court in 2020 and the Court of Appeals for the District of Columbia Circuit in 2022 led to trimming the scope of the original subpoena by limiting it to financial matters with a tie to the government — those that involved Mr. Trump’s time in office or his leasing of a federal building as the site of his Washington hotel.

But the judges allowed the core of that subpoena to be enforced, leading to a court-supervised settlement. Mazars, the Trump Organization’s outside accounting firm, began turning over records to the committee late last year in batches, including some showing how officials from six foreign governments had paid lavish rates at Mr. Trump’s hotel while seeking to influence his administration. (Mr. Comer halted the inquiry after Republicans gained control of the House.)

In the wake of the demand from House Republicans to Mr. Bragg, legal specialists struggled to identify any court case that centered on a congressional subpoena of a prosecutor for information about an open investigation.

That Mr. Bragg is a district attorney enforcing state law raises additional questions about federalism and the limits of congressional jurisdiction over sovereign state governments, the general counsel in the Manhattan district attorney’s office, Leslie B. Dubeck, argued in the letter to Congress.

Douglas Letter, who was the House general counsel when Democrats controlled the chamber and oversaw the lawsuits seeking to enforce its subpoenas against the Trump administration, said he thought the House Republican demands for information from Mr. Bragg “seems to be seriously overreaching.”

But he also said that Ms. Dubeck’s absolute claim that “Congress cannot have any legitimate legislative task relating to the oversight of local prosecutors enforcing state law,” went too far. As a result, if the dispute spills over into litigation, it will not be simple to resolve.

“While the facts here do not seem to fit the circumstances of a state or local prosecutor who is abusing his or her office in ways that violate the U.S. Constitution,” Mr. Letter said, “you can easily envision circumstances where that is happening, and the 14th Amendment, Section 5, says that this is a totally appropriate subject for Congress to legislate about.”

Mr. Letter was referring to a post-Civil War constitutional amendment that forbids any state from denying “to any person within its jurisdiction the equal protection of the laws,” and explicitly empowers Congress to enact legislation enforcing the civil rights guarantee.

The House Republicans’ letter, unlike Ms. Dubeck’s, did not cite any legal precedents. But it did raise several issues tied to Congressional oversight authority, especially regarding how federal public safety funds that go to local law-enforcement agencies are used, and the federal Justice Department’s sharing of information with local prosecutors.

Ms. Dubeck acknowledged that Congress has a legitimate basis to ask about federal funds and said that Mr. Bragg’s office was preparing a letter explaining its use of such money. But she said that the Republicans’ letter failed to suggest any way in which their “unconstitutional requests” for information about the Trump inquiry would illuminate that topic.

As a political and procedural matter, Mr. Jordan and Mr. Comer appear to be putting the House on a path that could put pressure on Speaker Kevin McCarthy’s narrow majority in the chamber, where Republicans representing moderate districts that Mr. Trump lost in 2020 may be reluctant to vote on steps to go after the prosecutor.

If Mr. McCarthy were to bring a contempt of Congress citation of Mr. Bragg to the floor and it were to pass, such a rebuke would traditionally be coupled with a criminal referral to the Justice Department.

However, the department would seem to be unlikely to press charges for such resistance. The department has itself told Mr. Jordan that it will not provide information about open criminal investigations to Congress — such as his demand for internal files about the special counsel inquiry into Mr. Biden’s handling of classified documents — and argued that protecting such information was rooted in the executive branch’s constitutional role.

“Longstanding department policy prevents us from confirming or denying the existence of pending investigations in response to congressional requests or providing nonpublic information about our investigations,” Carlos Uriarte, the assistant attorney general for legislative affairs, told Mr. Jordan in a letter in January.

Separately, any decision to file a lawsuit against Mr. Bragg seeking judicial enforcement of such a subpoena would come with its own complexities. It is not clear whether Mr. McCarthy would need an authorization vote by the full House in order to initiate litigation.

The new House general counsel, Matthew Berry, would file any such case. House rules say he is subject to the direction of Mr. McCarthy, who in turn is supposed to consult a panel of House leaders called the Bipartisan Legal Advisory Group, which “speaks for, and articulates the institutional position of, the House in all litigation matters.”

But the rules leave unclear whether Mr. McCarthy can unilaterally direct Mr. Berry to file a lawsuit. There is little historical precedent regarding what the rules allow because such lawsuits used to be rare. In 2019, Nancy Pelosi, then the House speaker, brought a resolution before the House that authorized lawsuits to enforce committee subpoenas.

That resolution, however, expired with the last Congress.