A month ago, the New York Times broke the news that Carey R. Dunne and Mark F. Pomerantz, two outside prosecutors brought in by former Manhattan District Attorney Cyrus Vance Jr. to investigate Donald Trump, had both tendered their resignations. The odds of the two top guys deciding simultaneously that they needed to spend more time with their families seemed remote, although Vance’s successor Alvin Bragg assured the public that the investigation continued apace.
Turns out … not so much.
The Daily Beast reported three weeks ago the Dunne and Pomerantz left resignation letters explaining that they were leaving because Bragg had torpedoed their case, and that the letters were so detailed and damning that the DA’s office refused to release them under New York’s Freedom of Information Law. But the Times got its hands on Pomerantz’s letter to Bragg, and it’s every bit as bad as described.
The Times reports that Pomerantz and Dunne were ready to seek an indictment charging Trump with falsifying business records, rather than fraud, which would be harder to prove. But Bragg balked at going forward with the presentment without more evidence, effectively shutting down the investigation.
“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,” Pomerantz wrote. “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,” he said, leaving no room for ambiguity about whose decision it was to put the case on ice. But Bragg was reportedly leery of seeking an indictment without further proof, an unlikely eventuality, particularly since Trump’s CFO Allen Weisselberg failed to flip on his boss.
But Pomerantz was crystal clear on the stakes of letting Trump skate:
To the extent you have raised issues as to the legal and factual sufficiency of our case and the likelihood that a prosecution would succeed, I and others have advised you that we have evidence sufficient to establish Mr. Trump’s guilt beyond a reasonable doubt, and we believe that the prosecution would prevail if charges were brought and the matter were tried to an impartial jury. No case is perfect. Whatever the risks of bringing the case may be, I am convinced that a failure to prosecute will pose much greater risks in terms of public confidence in the fair administration of justice. As I have suggested to you, respect for the rule of law, and the need to reinforce the bedrock proposition that “no man is above the law,” require that this prosecution be brought even if a conviction is not certain.
While acknowledging that Bragg had devoted significant time to the case and that the ultimate charging decision was his, Pomerantz nonetheless characterized the choice as “misguided and completely contrary to the public interest,” noting that “a decision made in good faith may nevertheless be wrong.”
So Pomerantz, who came out of retirement and worked pro bono on the investigation, is leaving.
“I fear that your decision means that Mr. Trump will not be held fully accountable for his crimes. I have worked too hard as a lawyer, and for too long, now to become a passive participant in what I believe to be a grave failure of justice,” he concluded. “I therefore resign from my position as a Special Assistant District Attorney, effective immediately.”
Not with a bang, but with a whimper.
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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