Will New York City District Attorney Alvin Bragg reconsider indicting Donald Trump?

Until last month, Mark Pomerantz had been a special assistant district attorney in the Manhattan DA’s Office. He and others worked on a criminal case involving Donald Trump in connection with the Trump Organization. But a new DA, Alvin Bragg, indefinitely suspended the Trump case. Afterward, Pomerantz and another prosecutor quit.

On Wednesday, the Timespublished a copy of Pomerantz’s resignation letter. In it, Pomerantz explained why he believed Bragg to be wrong, though he did not question Bragg’s authority or sincerity. The evidence, Pomerantz said, would show Trump is “guilty of numerous felony violations of the Penal Law” before he’d become president.

He went on:

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.

Pomerantz did not lay out evidence against the former president but did say it was strong enough to show “guilt beyond a reasonable doubt.” He added: “We believe that the prosecution would prevail if charges were brought and the matter were tried to an impartial jury.”

Pomerantz pressed Bragg on important to democratic values. If Bragg fears the political consequences of losing, as all district attorneys do, he should fear even more the political consequences of failing to try. “Whatever the risks of bringing the case may be,” Pomerantz said, “I am convinced that a failure to prosecute will pose much greater risks in terms of public confidence in the fair administration of justice.

He went on to say:

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.

Prosecutors quitting isn’t unusual. Neither are elected government officials fearing what might happen from trying to hold powerful people, especially former presidents, criminally liable. What is unusual, however, is the leaking of a resignation letter saying the DA is wrong. That kind of thing puts the DA between a rock and a very hard place.

To understand more, I got in touch with Carissa Byrne Hessick, a professor of criminal law at the University of North Carolina, director of the Prosecutors and Politics Project there, and author most recently ofPunishment Without Trial: Why Plea Bargaining Is a Bad Deal.

What was your first reaction to Pomerantz’s letter?

My first reaction was that Pomerantz must have felt very strongly in order to write such a letter. I also wonder who decided to leak it.

On the second observation, I'd say someone – whether Pomerantz or someone else in the Manhattan DA's office – must be upset enough about Bragg's decision to embarrass him by leaking the letter. I assume they are hoping public pressure will force Bragg to reconsider.

Can you characterize Pomerantz's reputation?

My understanding is that he is well-respected. But I'm gleaning that from reporting on the matter. I don't have firsthand knowledge.

Would he leak the letter?

I don't know. But I can't think of anyone else who’d have access to it.

Pomerantz said in the letter his team "harbors no doubt about whether [Trump] committed crimes — he did." Is that bravado?

I imagine he’s sincere.

Few prosecutors will bring charges if they believe a jury won’t convict. Since the standard for conviction is "proof beyond a reasonable doubt," I think Pomerantz is being honest in saying that he has no doubts.

How about from Bragg's view? What are your thoughts?

Reading between the lines, I imagine Bragg isn't moving forward because he is worried about losing at trial. Elected prosecutors don't like to lose. A loss in a case of this political magnitude would probably be seen as a political disaster – especially for a newly elected DA.

So the point of the leak: put Bragg between a rock and a hard place?

That seems to be the most likely explanation. There are political costs for refusing to pursue the case. It may change his political calculus.

Pomerantz seems to knock down reasons for refusing to bring a case. Apparently, Bragg said they should wait for more evidence, etc. Can you flesh out what's going on here? It seems a bit lawyerly.

It seems as though Bragg said he was "suspending" the investigation, rather than saying he'd made a final decision. Pomerantz is pointing out the decision to "suspend" is tantamount to a final decision not to bring charges. Two reasons support that. One, there's no reason to think anything else will happen to provide more evidence of past crimes. Two, the more time passes, the more difficult it may be to prove those crimes, as witnesses' memories deteriorate, etc.

He said the crimes happened before Trump was president.

Exactly.

A jury may think witness memory is less reliable as time goes on.

A jury would be more likely to believe a witness (like Trump or another Trump Organization member), who says "I can't remember" even when confronted with concrete evidence that makes them look bad.

Pomerantz invokes democratic principles. He says he's worried about "public confidence.” He says "no man is above the law.” These are rhetorical but also literal. It’s as if he's saying: "Bragg, you're in greater danger of not bringing this case than of bringing it."

This is complicated because prosecutors routinely decide not to bring criminal charges – and not just based on a lack of evidence.

Different prosecutors have different priorities.

One DA may not bring charges for marijuana possession. Cy Vance (the previous Manhattan DA) wouldn't charge subway turnstile jumpers.

Sometimes prosecutors won't bring charges because they worry about the politics – like bringing charges against police officers who shoot civilians. A lot of prosecutors will frame these decisions in terms of whether a jury will convict, but that's a little strange.

Obviously we don't expect prosecutors to predict what juries will do. On the other hand, we tend to blame or criticize them when they lose.

Pomerantz knows prosecutors make policy decisions (and not just evidence-based ones). He's got a long track record as a prosecutor.

But Bragg isn't going to defend himself and say this was a policy decision, because then the policy would be politically toxic – holding powerful people to a lesser legal standard. Even though that may happen sometimes, no prosecutor wants to admit it.

Is there a chance Bragg will reconsider? If he does, he'll look wishy washy. If he doesn't, he'll look cowardly, perhaps. He might even be vulnerable to baseless accusations of being in Trump's pay.

I'm not sure whether he will reconsider.

It probably depends on how long this story stays in the headlines or whether something else happens that could plausibly be characterized as "new" that would allow him to change his mind and save face.

"New," as in Trump saying something nasty?

Probably not, unless he says something incriminating.