In February 2022, Mark Pomerantz was a lead attorney in the Manhattan district attorney’s investigation of former president Donald Trump and his business practices when he abruptly resigned. He cited frustration over what he saw as the office’s flagging commitment to the inquiry. Pomerantz, a renowned former prosecutor and defense lawyer, had been recruited in February 2021 by then-district attorney Cyrus Vance to assist in the long-running investigation. In his resignation letter, Pomerantz asserted that the new DA, Alvin Bragg, had “suspended indefinitely” the investigation and said that Pomerantz did not want “to become a passive participant in what I believe to be a grave failure of justice.”
Pomerantz has now expanded on his views in a book, “People vs. Donald Trump: An Inside Account.” However, in the time between Pomerantz’s resignation and the book’s publication, Bragg’s investigation of Trump has taken another turn. The district attorney’s office has impaneled a grand jury and begun hearing evidence in a sharp ramping up of its inquiry into, among other things, Trump’s role in payments to adult-film star Stormy Daniels during the 2016 presidential campaign. As the office pushes forward on work that could lead to criminal charges against Trump, Bragg has publicly raised concerns that Pomerantz’s book could jeopardize any subsequent prosecution.
It is in this climate that Pomerantz’s book lands next week. His intent is to reveal what happened within the district attorney’s office during his year there. As he frames the question: “Why had the investigation, which by all accounts had been gaining steam and seemed likely to lead to criminal charges against the former president, come to a sudden stop?”
His assessment of the inner workings of the Manhattan district attorney’s office is brutal. Pomerantz contends that no criminal case emerged against Trump because the DA’s team of career prosecutors was simply not up to the task. He paints an unflattering portrait of the career assistant district attorneys, particularly the many who disagreed with his own assessment of the potential criminal case. “They spoke about the need to follow the evidence,” Pomerantz writes, “but to my knowledge they had not actually looked at much of it.”
In his telling, the prosecutors come across as fainthearted, lacking “energy” and “enthusiasm,” and “relentlessly negative.” The team was faced with a possible first-of-its-kind prosecution of a former president, and, Pomerantz writes, the prosecutors were perhaps “a bit fearful about bringing charges against Trump,” given his well-known penchant for public retaliation. “They seemed to me,” Pomerantz observes, “to be exactly the kind of traditional, ‘let’s do things the way we have always done them’ prosecutors that kept the district attorney’s office from being resourceful and successful in white-collar cases.” Pomerantz reveals that Vance had “privately complained many times to me … about the slow-moving and ‘gun shy’ culture in the office.” Pomerantz believed the office needed a chief of staff, “a drill sergeant,” as he puts it, to “keep the team moving.” But out of the hundreds of assistant district attorneys, he argues, “there was no suitable candidate from within the office.”
Pomerantz is unfailingly polite about Vance. But if his criticisms generally about the work of the office are accurate, then the state of the long-running investigation is on Vance, not on Bragg, who was on the job for less than two months before Pomerantz resigned. Yet Bragg is scathingly faulted for not promptly greenlighting charges against Trump, charges that many had said were not ready for prime time. Indeed, in December 2021, Pomerantz and Vance brought in a “brain trust” of five outside appellate and former trial prosecutors to assess the case. That “summit meeting” occurred when Bragg was the district attorney-elect, but inexplicably no one from his transition team was invited. And the meeting did not yield a consensus that the case was strong and ready to be brought, with various participants raising serious legal and factual concerns. It is difficult to know exactly what transpired, as Pomerantz appears to fudge on the degree of consensus by saying the outside group “seemed” to agree and the “sense of the group” seemed clear. But there was no statement acknowledging an agreement that the case was solid and ready to be charged. And Pomerantz’s senior colleague walked away from the meeting saying the conversation “‘left him on the fence’ about charging Trump.”
Bragg’s decision not to pull the trigger in February 2022 on a case against Trump — which was widely criticized in the press — actually may have been courageous, not cowardly or inept, since he hardly had anything to gain and a lot to lose politically by the decision. Indeed, Pomerantz says he reminded Bragg of the political implications for the office when he gave the young, new district attorney what some may find a brash ultimatum: He wanted an immediate “up-or-down” decision on the Trump charges, or he would leave. Pomerantz told Bragg that the news media would learn of his resignation “very quickly” and that if “the press also learned that Cy Vance had reached a different judgment,” the result would not be “good for the office or for Alvin.” Pomerantz’s resignation letter did soon land in the press, something that he does not address except to say that he did not write it “for publication.”
But Pomerantz changes tone in a thoughtful late chapter and contemplates the issues that confronted Bragg and Vance. He lucidly describes the conundrum faced by them and the other prosecutors contemplating criminal charges against Trump. Why, he asks, had he and Vance and others been convinced that criminal charges should be brought, “while other serious and experienced lawyers had reached the opposite conclusion?” The answer focuses on the standard to be applied in bringing charges against a former president of the United States. Some have the view that if you shoot for the king, you best not miss, and that an acquittal would rend the fabric of the country, perhaps irreparably. Pomerantz eloquently lays out the counterargument: that a president should be held to at least the same standard as anyone else and that the rule of law demands it, even if a conviction is far from certain.
Pomerantz makes a compelling argument on the standard to be used in deciding whether to bring such consequential charges, but one wonders if this book risks undermining the very noble end he seeks. The DA’s investigation of Trump is widely reported to be active, and if charges are brought, this book is certainly going to be used in countless ways by the defense, including to claim selective prosecution, to try to change venues and to undermine government witnesses. If the book improperly hurts an eventual Trump prosecution, one wonders if having this account, at this time, will have been worth it.
Andrew Weissmann is a professor of practice at New York University’s School of Law. He served as a lead prosecutor for special counsel Robert Mueller and is the author of “Where Law Ends: Inside the Mueller Investigation.”
People vs. Donald Trump
An Inside Account
By Mark Pomerantz
Simon & Schuster. 294 pp. $29.99
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