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Opinion Trump prosecutor Mark Pomerantz was wrong to litigate-and-tell

Attorney Mark Pomerantz in New York in 2002. (David Karp/AP)
5 min

Even Donald Trump deserves fair treatment and due process. As delighted as I would be to see the former president criminally charged and convicted, a new book by his would-be prosecutor violates that basic rule.

Mark Pomerantz, a veteran prosecutor and defense lawyer, joined the Manhattan district attorney’s office in 2021 to help oversee the criminal investigation into Trump’s personal finances and business dealings. He quit a year later, asserting in a resignation letter, which somehow leaked to the New York Times, that Trump “is guilty of numerous felony violations” and that the seeming decision by the newly elected Manhattan district attorney, Alvin Bragg, not to pursue charges against Trump was “a grave failure of justice.”

Now comes Pomerantz with a book-length, well, indictment of both Bragg and Trump, even as Bragg appears to be pursuing part of the case, involving Trump’s role in hush-money payments to adult-film actress Stormy Daniels. “People vs. Donald Trump: An Inside Account” is a remarkable piece of no-holds-barred score-settling and behind-the-scenes revelations about the strengths — and weaknesses — of the case against Trump.

This is not how prosecutors are supposed to behave. It is an axiom of legal ethics that prosecutors do their speaking in court. Opining on someone’s supposed guilt — even if that someone is Trump — when you have had special access to investigative information is flat-out wrong.

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As the District Attorneys Association of the State of New York put it in a statement, “A former prosecutor speaking out during an ongoing criminal investigation, that he was a part of, is unfortunate and unprecedented. … By writing and releasing a book in the midst of an ongoing case, the author is upending the norms and ethics of prosecutorial conduct.”

Granted, Pomerantz isn’t the first prosecutor to litigate-and-tell. Any number of former Watergate prosecutors wrote books about that case. Fresh from his stint as a young lawyer in the Iran-contra investigation, Jeffrey Toobin offered a look inside the office, much to the chagrin of independent counsel Lawrence Walsh, who tried to block publication. More recently, Andrew Weissmann, who worked for special counsel Robert S. Mueller III, faulted the inquiry for pulling its punches in investigating Trump.

Toobin and Weissmann came in for criticism, but their behavior was nothing compared with that of Pomerantz. They submitted their manuscripts to the government for pre-publication review to insure that they did not improperly disclose grand jury materials or classified information. By contrast, Pomerantz did not reveal that he was writing a book until less than a month before publication; the district attorney’s office didn’t actually see the book until its Tuesday release. (The DA’s office says Pomerantz violated a nondisclosure agreement; Pomerantz maintains that agreement only covered his service while he was informally advising the DA’s office, not after he signed on full-time.)

Granted, too, that there is a certain irony in journalists criticizing prosecutors for talking out of school. That’s what we try to get them to do all the time, seeking to coax tiny morsels of information out of people we know are duty bound not to disclose it. And, yes, there is a public interest in understanding how the prosecutors thought through whether they had the evidence to bring charges.

But Pomerantz doesn’t simply lay out competing arguments. He trashes the district attorney’s office as “the legal equivalent of an old dog that had gone about its routine for years and years. Learning new tricks, or operating at the cutting edge of the criminal law, particularly in a high-profile investigation, was not a prized part of office culture.” Nice.

And exposing all that to public view in a situation in which the investigation is continuing only threatens to complicate prosecution down the road. It’s hard to imagine that Trump, if he is indicted, will be able to use Pomerantz’s book to get the charges against him dismissed on grounds that the unfavorable publicity tainted the jury pool. Still, the book offers defense lawyers an easy road map into prosecutors’ own views of the infirmities of the case and an opportunity to use the disclosures for pre-trial mischief.

In an author’s note, Pomerantz wrestles with the unusual nature of his disclosures. “Prosecutors typically do not describe their work in detail,” he writes. “This is because public disclosure of what goes on in law enforcement investigations can compromise those investigations or the cases that result from them. Also, prosecutors usually do not talk about their investigations because they need to respect the interests of persons who are not ultimately charged with crimes.”

Well put. So, what empowers Pomerantz to stray from these norms? In an interview, Pomerantz argued that there is a difference between a current prosecutor, “speaking with the power of the state behind him,” and one, like him, who is “speaking as a private citizen.” He said that airing internal disagreements was justified in this situation because “it’s important that prosecutors are not immune from criticism.”

In his book, Pomerantz said it is “ridiculous” to worry about potential unfairness to Trump because the former president lambasted the investigation from the start as a political “witch hunt” and attacked the prosecutors.

Sorry, but prosecutors get criticized all the time, and learn to suck it up. There is no Trump exception to this rule.