Dear Reader,
The headline, according to Mark Pomerantz, should be something like this: Bold Prosecutor Was About to Nail Trump – But Clueless, Weak-Kneed DA Killed the Case. Pomerantz, the former federal prosecutor and longtime criminal defense attorney who came out of retirement to work on the Manhattan DA’s investigation of Donald Trump’s businesses and finances, has been on a media whirlwind, spinning a tale about how he would’ve taken down the big guy – he really, really woulda – if only the newly-elected district attorney, Alvin Bragg, had let him at it.
We need to read past the top banner here. On closer examination, Pomerantz’s narrative is a dubious one, riddled with inconsistencies and self-aggrandizing, post-hoc bravado. Over the past few weeks, a spate of former prosecutors and legal experts from across the ideological spectrum have called Pomerantz out for his dishonesty and for violating fundamental ethical and practical tenets of prosecution. I concur.
Before we dig in, some disclosures; weigh them as you will. Bragg is a personal friend and a former colleague of mine at the SDNY. I like and deeply respect him. I don’t know Pomerantz. Before this matter blew up, I’d heard his name kicking around as a defense lawyer on the circuit, and knew of him as an SDNY alum. We’ve never met or spoken.
In recent weeks, there’s been a soap-operatic back and forth between Pomerantz and Bragg, sparked by the publication of Pomerantz’s behind-the-scenes prosecutorial tell-all (or, as we’ll see in a moment, tell-some) and the accompanying media blitz that landed him on 60 Minutes, Maddow, and elsewhere. It’s tough to follow every twist and turn amidst the he-said-he-said of it all. So in an effort to clarify, I offer here five undeniable truths about the showdown at the Manhattan DA’s office.
1. Pomerantz’s credibility is in tatters. I’m going to yield the floor to Ryan Goodman, Co-Editor-in-Chief of Just Security, who wrote a blistering takedown of Pomerantz titled, “Pomerantz vs. Pomerantz: An Annotation of His Leaked Resignation Letter in Manhattan DA Trump Investigation.” (The article features two photos of Pomerantz set next to each other, providing an unsubtle but apt visual representation of his duplicity.) Goodman, by the way, is no Trump fan. He often publicly predicts Trump’s demise, and recently co-authored a 174-page draft prosecution memo urging Trump’s indictment for the Mar-a-Lago documents.
Goodman meticulously dissects a string of inconsistent and contradictory public statements by Pomerantz about the Trump case, including his proclamations about the strength of the evidence (which we’ll discuss in the next item). That’s just one of about a half-dozen examples where Pomerantz’s after-the-fact chest-thumping is at odds with his own words and actions while he was working on the case, or since then. Another whopper: Pomerantz has at times claimed that Bragg’s predecessor as DA, Cy Vance, “directed the team to present evidence to a grand jury and to seek an indictment of Mr. Trump.” But the actual record, including Pomerantz’s own prior statements, establishes quite clearly that Vance gave no such order, and instead gave fuzzier instructions about carrying on with the investigation. Kudos to Goodman for this piece, which sharply exposes Pomerantz’s habitual dissembling.
2. Pomerantz’s case was shaky at best. Pomerantz declared in his haughty resignation letter to the DA in early 2022 – which somehow was leaked to the New York Times – that “[t]he team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes – he did.” But Bragg – you know, the actual DA – disagreed, as did three other lower-ranking prosecutors who reportedly resigned because they believed Pomerantz was rushing ahead despite “gaps in the evidence.” So much for Pomerantz’s claim that “the team” harbored “no doubt.” As Bragg has stated publicly, “I came to the same conclusion that multiple senior prosecutors in my office independently came to, and that was that Mark Pomerantz’s case simply was not ready.”
In a meticulously-reported article for New York Magazine, former federal prosecutor Ankush Khardori reveals that Pomerantz was unable to answer basic questions for Bragg about the requirements of the New York state laws that he now claims he was ready to charge. (Note to future prosecutors out there: you can’t indict a case if you don’t know what law you’re charging.) And, remarkably, Pomerantz never even prepared a draft indictment, prosecution memo, or order of proof (a document laying out the witnesses and other evidence to be presented at trial) for Bragg’s review. This is a remarkable detail; no competent prosecutor would consider greenlighting a major case without these foundational documents firmly in place.
As Goodman notes in his piece, Pomerantz has subsequently acknowledged that various members of the team expressed doubt about the case. Most damning, Pomerantz himself conceded in a February 2021 email that “there is a big risk that it will not end in a conviction” and that while he “believed a prosecution would prevail… a lot of uncertainty is baked into the situation.” Here’s a quick reminder that prosecutors must prove their case to a unanimous jury, beyond a reasonable doubt. A “lot of uncertainty,” as Pomerantz phrased it (before his PR blitz), is more than reasonable doubt, and that means you’re getting an acquittal.
And that might explain this telling tidbit: even before he quit, Pomerantz reportedly wouldn’t even commit to stay at the DA’s office to try the case. It’s the old prosecutorial charge-and-dash: indict the case, soak in the glory at a press conference, and then leave others holding the leaky bag at trial. (As you probably can tell, I was caught on the short end of this routine more than once at the SDNY; it’s not great.)
3. Rather than doing more work, Pomerantz quit and went public. Pomerantz implicitly concedes in his resignation letter that Bragg never exactly shut down the case or ordered all work to cease. To the contrary, Bragg did what good supervisors do all the time: he told Pomerantz the case needed more work – a point that Pomerantz seemingly understood, or should have, given his own aforementioned concessions about “uncertainty” accompanying the case as it then stood, and the fact that he hadn’t even drafted an indictment or prosecution memo.
While Pomerantz has spent the last year since his resignation preparing his book and PR frenzy, Bragg has continued to do the work. Bragg confirmed just last month that the investigation continues, and that it has taken new turns, as investigations often do. When Bragg expressed uncertainty about the case and told Pomerantz he needed to do more work, Pomerantz could have dug in and done just that. Instead, he quit in a huff, wrote his book, and tried to turn himself into a public martyr and hero of the Resistance movement.
4. Pomerantz’s publicity tour is undermining the ongoing investigation. Pomerantz has repeatedly declared in a conclusory, self-exonerating manner that his public commentary has not undermined the ongoing Trump case. With all due respect: how the hell would he know? Even if Pomerantz hasn’t given up grand jury secrets (which would be a crime, by the way), his self-congratulatory media romp absolutely poses a threat to the ongoing investigation.
Don’t take it from me, or Pomerantz for that matter. Both Bragg and the District Attorney’s Association of the State of New York have said that Pomerantz’s media blitz could compromise their continuing work. The DA’s Association wrote, “By writing and releasing a book in the midst of an ongoing case, the author is upending the norms and ethics of prosecutorial conduct and is potentially in violation of New York criminal law.” Bragg has confirmed that Pomerantz’s publicity tour is indeed undermining the office’s ongoing efforts to investigate and potentially charge Trump. Now, who would know better: Pomerantz, who resigned more than a year ago – or Bragg, who has continued to oversee the case as it has grown and evolved since then?
Pomerantz’s public commentary based on his insider access at the DA’s office also tramples on the rights of the accused (or, in Trump’s case, the not-even-accused). As Ruth Marcus put it in an insightful Washington Post article blasting Pomerantz, publicly “[o]pining on someone’s supposed guilt — even if that someone is Trump — when you have had special access to investigative information is flat-out wrong.” And as former prosecutor Jennifer Rodgers (also a friend and former SDNY colleague) wrote for CNN, Pomerantz’s conduct could actually hand Trump a gift by giving him (and the entire world) a preview of the case while the investigation is ongoing, and by giving him grist for a motion to dismiss based on selective or vindictive prosecution. As Rodgers writes, “[T]he outcome is now clear. Pomerantz is the loser. And former President Donald Trump is the likely winner.” Swell job, Mr. Pomerantz.
5. Bragg has vastly more impressive modern prosecutorial experience than Pomerantz. After the dispute over the Trump case rose to the surface, it became trendy in some reflexively Trump-bashing quarters to exalt Pomerantz as some sort of prosecutorial oracle, while denigrating Bragg as a thinly-credentialed novice. Pomerantz has played right along, seeking to infantilize Bragg (while referring reverentially to Vance as “patrician”… interesting word choice for Bragg’s older, whiter predecessor). In his book, Pomerantz sneers towards Bragg, “I was finishing law school when Alvin was a toddler.”
That’s fine – nice cheap shot – but what’s happened over, oh, let’s say the past 25 years? Pomerantz went into private practice and, before the Trump matter, hadn’t touched a case as a prosecutor since the 1990s. Meanwhile, here in the 21st century, Bragg has worked as a kickass federal prosecutor at the SDNY (I saw him in action); he rose through the ranks and became one of the top officials at the New York state Attorney General’s office; and then he got himself elected as district attorney in an absurdly crowded field, making history as Manhattan’s first Black DA. So, sure, go with Pomerantz if you prefer museum relics reminiscing about the late 1900s and the good ol’ boys. I’ll stick with the trailblazer who has done the job for the past quarter century.
Pomerantz seemingly prefers to pick his fights with people who can’t punch back. He claims he was raring to duke it out with Trump – yet he sat on his hands for the year-plus he could have indicted before Bragg arrived. So now he’ll heckle Trump from the bleachers, safe from ever having to back up his braggadocio in court. And he has lobbed bombs at Bragg, who is rigidly constrained by the prosecutorial rules of ethics in how he can respond.
Bragg has absorbed Pomerantz’s bogus slings quietly and with dignity, as he must. And he has done so at the risk of his own reputation and career. Indeed, the politically expedient move for Bragg would have been to indict Trump, call himself a hero, let the chips fall where they may, and rake in the votes of the overwhelmingly blue district where he now serves. Instead he took a stand based on his own principled prosecutorial judgment. Former federal prosecutor Andrew Weissmann – also no fan of Trump’s – has written that Bragg “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.”
Pomerantz got his fifteen minutes, and he’s about thirteen and a half minutes in. But Bragg has his integrity, and that’s permanent.
Stay Informed,
Elie
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