Did One Grumpy Lawyer Just Screw Up Trump’s Prosecution?

Did a book arguing there’s enough evidence to prosecute former President Donald Trump just make it harder to ever charge Trump with a crime?

A lot of seasoned lawyers say it did.

Those critics are taking aim at Mark Pomerantz, the former Special Assistant District Attorney for the Manhattan DA’s office who was brought in to help investigate Trump in 2021, for writing a tell-all about the inner workings of the probe. They say Pomerantz should never have published “People vs. Donald Trump” while the investigation is still underway. 

“The only thing the book can do is damage any future cases that the Manhattan DA might bring against the former president,” David LaBahn, president of the Association of Prosecuting Attorneys, told VICE news after the book’s release on Tuesday.

Pomerantz quit the office in a huff last year after the newly-elected DA Alvin Bragg refused to green light a criminal case against Trump. The book compares Trump to notorious mobster John Gotti, aka the “Teflon Don,” and recounts delving deep into Trump’s murky finances. 

“We developed evidence convincing us that Donald Trump committed serious crimes,” Pomerantz wrote, before comparing the failure to indict Trump to a plane crash caused by “pilot error.” 

Bragg, however, has fired back, arguing that the case needed more investigation, and quipped: “Mr. Pomerantz’s plane wasn’t ready for takeoff.”  

Bragg’s office is still investigating Trump. He recently began showing evidence to a grand jury about a years-old hush-money case revolving around $130,000 paid to adult film star Stormy Daniels for her silence about an alleged affair with Trump before the 2016 election, according to the New York Times. Bragg says he never closed the probe into Trump’s finances. 

Trump denies all wrongdoing, calls the investigation a politically-driven “witch hunt,” and dismisses Pomerantz as “disgraceful.” But for once, Trump and his MAGA fans aren’t the only ones to take a dim view of a high-profile Trump critic.  

Publishing an insider account in the middle of an investigation is a violation of basic legal standards, said Rebecca Roiphe, a former prosecutor with the Manhattan DA’s office who now focuses on prosecutorial ethics at New York Law School.

“To me it’s just incredibly inappropriate,” Roiphe told VICE News. “There isn’t any justification for it. I can’t even think of one.”  

The book could give Trump’s attorneys fodder to argue that a future prosecution by the Manhattan DA against Trump was selective, in that it unfairly targeted Trump personally instead of applying the law fairly to everyone, according to Andrew Weissmann, who served as a prosecutor on former special counsel Robert Mueller’s investigation into Trump’s ties to Russia. 

Weissmann points to a section of the book in which Pomerantz discusses the potential use of a novel legal theory. Pomerantz recounts exploring whether prosecutors could argue that Daniels’ attempt to receive money for her silence was actually extortion. That would have, ironically, made Trump the victim of a crime. But it might also have allowed prosecutors to characterize the secretive payment of $130,000 to Daniels as money laundering, because the transfer could be linked to criminal proceeds. 

Pomerantz eventually backed away from this complicated theory, but Weissmann said discussing the idea out loud makes Pomerantz sound like he considered even wacky ideas just to nail Trump.

“You don’t charge victims of extortion,” Weissmann told MSNBC. “That is just not a great theory to be trotting out there when Donald Trump’s going to claim, ‘Oh, that theory shows they were just trying to just get me at any cost.’” 

The book could end up giving Trump’s lawyers fresh ammunition to counter criminal charges or reverse a conviction on appeal, Weissmann said. 

“As sure as we are sitting here, if there are Manhattan District Attorney charges [Trump], this book would be ‘Exhibit A’ in all sorts of motions that Donald Trump could make,” Weissmann said.  

Pomerantz insists the publication of his book is “legal, ethical, and in the public interest.”  And he rejects the idea that his book could help Trump.

“I don’t think we’ve given the defense any kind of leg up,” he told Rachel Maddow on Monday. 

Pomerantz argues that both the facts and the legal considerations of hush-money case, for example, are already well-known. And he says all the evidence that could be used to prosecute Trump for financial wrongdoing was already laid out in a $250-million lawsuit brought by New York Attorney General Letitia James, whose office assisted the Manhattan DA’s investigation of Trump’s finances. 

James is suing Trump for allegedly inflating the value of his assets to win benefits from banks and financial institutions, and minimizing the value of the same assets to reduce his taxes. Trump is fighting the lawsuit and denies wrongdoing.

“I’m not letting any cats out of the bag,” Pomerantz told Maddow. “Those cats have been running all over the place, literally for years.” 

Still, more than one prosecutors’ association says Pomerantz could face sanctions over his book. That might include disbarment if the New York State Bar Association determines he violated legal ethics, or even criminal prosecution if he is found to have violated grand jury secrecy rules.

LaBahn of the Association of Prosecuting Attorneys sent Bragg’s office a letter laying out both of those possibilities in early February.  

“The most likely implication for any lawyer publicly opining about the guilt of a suspect is a formal complaint to the state bar association that he has violated his ethical duties,” the LaBahn wrote to Bragg. “The most likely implication for any lawyer disclosing publicly any materials derived from a grand jury proceeding without a written court order, including witness testimony, is a formal felony criminal charge for violating grand jury secrecy.”

An association of New York prosecutors released a letter on Friday calling Pomerantz’s decision to go public “unfortunate and unprecedented.” 

The letter, written by District Attorneys Association of the State of New York President J. Anthony Jordan says: “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.”